“Are legal systems converging or diverging?” This is a question that has vexed legal scholars and comparatists for decades, especially as legal convergence is not a new concept. Its philosophical underpinnings can be traced back to writings on natural law in ancient Greece and Rome. Those in this tradition – such as Plato (theory of universals), Aristotle, Cicero, and the Stoics – advanced the idea that there was a universal norm that overruled local laws and customs. And yet, the question of whether legal systems are actually converging or diverging remains unanswered. Are Legal Systems Converging or Diverging? (Ghio and Perlingeiro (eds.), Springer, 2024)inserts itself in this intellectual odyssey on the concepts of legal convergence and legal pluralism.
A quick word on terminology
Legal convergence aims to apply similar legal responses to similar facts or situations (in the case of this book, crises), irrespective of the place in which they occur or of the domestic elements involved. In ordinary language, ‘convergence’ is commonly defined as ‘[the] fact that two or more things, ideas, etc. become similar or come together’ (Cambridge Dictionary) and in evolutionary theory, as the ‘independent development of similar traits or features in unrelated species or lineages’ (Merriam-Webster Dictionary). Therefore, convergence is the process by which legal systems become more similar. Convergence occurs when states borrow standards, principles, and rules from other jurisdictions and supranational/international organisations without necessarily abandoning their own. ‘It is an organic process which leads to the conscious—or more rarely, unconscious—agreement among individual states of what constitutes best practices. Legislators look at the neighbouring cooking pots, taste different dishes, and select what suits them best.’ (Mistelis (2000), p. 1069) ‘In practical terms, the legal point of convergence might be nothing more than the meeting of minds on a given legal matter, which is followed by political agreement and legal implementation.’ (Platsas (2017), pp. 8-9)
Context: the convergence/divergence scholarship
The phenomena of legal convergence and divergence have been discussed vigorously in the legal literature. On the one hand, scholars have long postulated a relationship between the law and society in which it operates so close that legal transplants, or legal convergence, ought to be virtually impossible. These claims are generally rooted in arguments of national sovereignty, path dependence, and legal cultures. Ever since the emergence of the nation-state, law-making has primarily been a task for national legislators (and/or courts). The sixteenth century French philosopher Jean Bodin defined ‘sovereignty’ as a ‘supreme principle of citizens and subjects, unbound by the law […] a perpetual, humanly unlimited, and unconditional right to make, interpret and execute the law,’ (Sabine (1961), pp. 405-407). The British philosopher Thomas Hobbes developed the concept further by associating it with the central role of the nation state (1651). The idea of popular sovereignty gradually aligned state jurisdictions with nations as personifying the populi. Today, the term ‘sovereignty’ generally refers to notions of legitimacy, power, and authority, usually associated with a particular geographical territory. The issue with legal convergence, therefore, is that the notion itself clashes with this prevailing idea of law-making as closely tied to a state’s sovereignty and self-determination. Nationalist arguments usually suggest that the adoption of foreign law undermines national culture and national identity. Laws are meant to be produced locally, rather than sourced from a foreign supply. In the words of Montesquieu, the laws of each country ‘should be so adapted to the people for whom they are made, that it is more chance if those of one nation can suit another.’ ((1748), Book 1, Chapter 3). Otto Kahn-Freund added that ‘we cannot take for granted that rules or institutions are transplantable […] [A]ny attempt to use a pattern of law outside the environment of its origin continues to entail the risk of rejection’ ((1974), p. 27). Ultimately, William Twinning claimed that law being an ‘outgrowth of local society […] embedded holistically in local culture […] mak[es] reception and assimilation of foreign ideas problematic.’ ((2004), p. 28). In his view, legal transplants do not work; legal rules cannot be transposed from one legal system to another and, therefore, legal systems will never converge. (Legrand (1996)).
On the other hand, studies promoting legal convergence are extensive and varied. Landmark debates have abounded. First, about the reception of Roman law in Europe, illustrated by the works, for example, of Paul Koschaker and Franz Wieacker. Second, the literature has focused on legal systems imports or imposition by colonising powers. These studies generally overlap with the literature on legal pluralism and that on law and development. Third, focus has also been placed on voluntary receptions of foreign rules. Fourth, an account of the literature on legal convergence cannot be complete without mentioning Alan Watson’s transplant thesis (1974), and the subsequent discussions stemming from Otto Kahn-Freund (1974) and Ugo Mattei (1997). As famously claimed by Watson, ‘the transplanting of individual rules or of a large part of a legal system is extremely common […] [T]ransplanting is, in fact, the most fertile source of development. Most changes in most systems are the result of borrowing.’ ((1974), p. 95).
Objective of this book
While both camps have presented compelling arguments, rooted in varied studies of different legal fields and jurisdictions, no consensus has emerged. Are Legal Systems Converging or Diverging? (Ghio and Perlingeiro (eds.), Springer, 2024)It contributes to the rich comparative law and legal transplants literature by examining legal convergence through the prism of contemporary crises. This book tests the validity of Zweigert’s and Kötz’s argument that ‘legal systems give the same or very similar solutions, even as to detail, to the same problems of life ((1998), pp. 39–40).
Studies in convergence or divergence have traditionally adopted a purely thematic approach, i.e. comparatively studying whether one area of law is converging across countries or a common law versus civil law dichotomy. However, nowadays, national legal systems do not exist in isolation from one another; they interact and conduct a ‘legal dialogue’, which support their improvement, development, and overall change. Therefore, it is impossible to truly determine whether legal convergence is happening without conducting a cross-legal disciplines study. Are Legal Systems Converging or Diverging? takes an international and cross-thematic approach with chapters focusing on how legal areas in selected jurisdictions have responded to crises. Therefore, its originality lies in
- its truly global nature, with chapters and authors surveying jurisdictions in Africa, North and South America, Asia, Europe and Oceania;
- the breadth of legal areas covered, with a mix of private and public law areas; and
- its focus on the evolution of these fields and jurisdictions following varied domestic and international contemporary crises.
The focus on crises
At a time when the world seems to be in a state of disintegration following several successive crises, one may question the timeliness of discussions around convergence. Jean Monnet famously wrote that ‘people only accept change when they are faced with necessity, and only recognize necessity when a crisis is upon them […]’ (1978). It is true that the world is in shambles. The number of crises in the last two decades has been at an all-times high and their nature has been extremely varied, ranging from economic crises to global pandemics.
This book uses crises as a common denominator for the discussion, as they provide a sharper lens through which to assess the degree of possible convergence amongst legal systems. The chapters of this books analyse how specific areas of law have evolved over the last 20 years in selected jurisdictions, with a view to determining whether, on the whole, legal systems are actually converging in times of crisis.
This is particularly true in times of crisis, as ‘global crises require global solutions’ (Lomborg (2009)) and because national strategies are not always enough or adequate. A crisis is an unexpected, abrupt shock, which compels political and legal actors to take a new set of decisions with a sense of urgency. In other words, a crisis is a situation which cannot be resolved with existing rules or tools, and which leads to a legal change. Therefore, crises challenge countries’ legal systems and prompt some institutional responses to tackle perceived shortcomings in specific legal fields. As highlighted in the Introduction of the book, the crises witnessed by the world over the last two decades have highlighted two paradoxical tendencies:
- increased cooperation and a natural phenomenon of legal convergence as states find common solutions to common problems (Ghio et al., 2021);
- a preference for state-centric solutions, which prioritise domestic interests, a rejection of supranational standards and harmonisation efforts, and a protection of domestic sovereignty, possibly leading to a phenomenon of legal disintegration (Dyevre et al. (2018); Leruth et al., (2019)).
The authors in this book have attempted to determine which tendency has been more prominent over the last 20 years. The analyses provided in the chapters of this book seem to point to the fact that overall, in times of crisis, legal systems tend to converge, rather than diverge. This supports Alan Watson’s polemical claim that legal transplants are not only the most common method of legal development, but should also be considered ‘socially easy’. Watson defined social ease as: ‘whatever opposition there might be from the bar or legislator, it remains true that legal rules move easily and are accepted into the system without too great difficulty.’ ((1974), pp. 95-96)
The chapters in this book also reveal that, over the last two decades, there have been two prevailing factors behind this phenomenon of legal convergence. First, legal convergence is primarily the result of acculturation, driven by the desire of individuals to fit in with a reference group of modern states. International interactions generate a convergence of legal preferences which, in turn, leads to legal convergence (or institutional isomorphism in the words of Ryan Goodman and Derek Jinks (2013)).
Second, another factor of legal convergence is rooted in the premise that legal rules will drift towards efficiency over time. Therefore, countries will naturally converge towards the same (i.e. the most efficient rule) when faced with the same legal problem, which is often the case in times of crisis. In the comparative law literature, this process is referred to as natural convergence. ‘Different legal systems will give the same or very similar solutions, even as to detail, to the same problems of life, despite the great differences in their historical development, conceptual structure, and style of operations’ (Zweigert and Kotz (1998), p. 39).
What, then, of Pierre Legrand’s claim that ‘legal systems are not converging’? (1996) Platsas (2017, p. 16) rightly points out that:
Legrand […] seemed to have committed the mistake of looking for a perfect world of legal convergence in a world of imperfection in human affairs. Practically, Legrand was advocating perfect convergence: a utopia. Such a utopia will never exist […] Thus, perfect harmonization of legal systems is a utopia […] As such, Legrand might be wrong in inferring that the apparent lack of perfect [convergence] of […] legal systems constitutes an impossibility for the whole of the convergence exercise between legal systems.
Are Legal Systems Converging or Diverging? concludes that, in times of crisis, legal systems certainly seem to be converging towards the adoption of similar rules, standards, and solutions. Therefore, it is Ghio’s and Perlingeiro’s argument that crises are, in fact, a vector for convergence.
Posted by Emilie Ghio (Lecturer, Edinburgh Law School).
British Association of Comparative Law 