1 The Causes of Commonality and Diversity

As we have just observed, it is necessary to explore the etiology of commonality, as well as that of diversity. There are two reasons for beginning with an examination of their etiology. The first is that this way of proceeding corresponds to an established line of thinking. Secondly, an analysis of the causes of commonality has been suggested in the context of earlier studies about the common core because it can offer a better understanding of its significance.

Assessing the causes requires us to clarify the key terms. For the established tradition dating back to Aristotle, causes are not merely antecedent events that produce other events but the reasons things exist and are the way they are. In brief, causes provide explanation. There are two basic reasons to support an investigation of the causes: one concerns the importance of causes considered as a whole; the other the role that different types of causes can play. On the one hand, a causal analysis is indispensable simply because an adequate comprehension of things involves identifying their origin, raison d’être and evolution. This distinguishes scientific knowledge from an accidental or superficial one. On the other hand, there are different types of causes. Aristotle distinguished four types: the material cause (what a thing is made of), the formal (what it is), the efficient (how it came to be what it is), and the final or teleological (what is its purpose).⁵⁴⁹ It is important to understand what a certain thing is, in our case for example, whether a certain standard of administrative conduct is an invariable or a variable one, and its substrate. If things were unchangeable, an analysis of their essence would suffice. However, since things can change, and often do, this dimension must be considered too. This requires us to ponder on whether a change was the consequence of a certain cause and whether it was necessary, sufficient, or contributed to with others (concurrent causes).

Although the above may already explain why an analysis of the causes is necessary, another word or two are appropriate in the light of previous studies on the common core, beginning with Schlesinger, Gorla and other scholars in the context of the Cornell Law School seminars.⁵⁵⁰ Their research constituted a healthy antidote to the simplistic assumption that two similar legal provisions or institutions should produce similar effects. It stimulated explanation based on social and political settings,⁵⁵¹ as well as the historical roots of the legal institutions examined. It thus promoted new research focusing on parameters that can serve as indicators of efficient causes. In particular, in his studies on judicial decisions in the period of jus commune (especially in the seventeenth and eighteenth centuries) Gorla shed light on the adjacency or proximity of legal systems (both conveying the sense of being very near to another), as well as their affinity, ie, their close similarity, often due to the existence of a common core.⁵⁵² It is in this sense that, according to Schlesinger, the existence of a common core, viewed as a working hypothesis, derived plausibility from historical studies.⁵⁵³ On the other hand, where there are no common roots among legal institutions forming parts of legal systems with fairly dissimilar trajectories, a focus on final causes may serve to explain why such legal systems have adopted, for example, a Conseil d’État entrusted with both advisory and judicial functions. In addition to factors such as prestige or the desire to adopt what is regarded as a more advanced solution to similar problems, membership of either a regional organization or a regulatory regime may be a demonstrable cause of similarity between legal systems.

Some caveats are called for at this stage. The first is that providing causal explanations for differences in the development of administrative laws is no easy task. This explains why writers who show an interest in them do not hesitate to clarify that they only make ‘suggestive associations’ in this regard.⁵⁵⁴ The second caveat is that distinguishing the various causes does not avoid scientific controversies. For example, giving much weight to material causes can be criticized on the grounds that it is essentialist (an objection from which Aristotle himself was not immune)⁵⁵⁵ or mechanistic. Likewise, an exclusive focus on efficient causes can be rejected as functional (a frequent accusation against the once widespread approach in comparative law) or mechanistic.⁵⁵⁶ However, an adequate understanding of the respective weight of each type of explanation can shed light on whether a controversy is about a certain phenomenon or how it is explained. Lastly, an analysis of a causal relationship does not dispense from empirical knowledge; rather, it helps to understand why, for example, an ancient judicial institution is shaped the way it is, as well as why it is either modified or abolished at a given time. A correct use of one of those causal constructs within an appropriate empirical domain may thus not resolve all disputes, but will serve to clarify the issue.

2 Context Matters: History

Although attention is traditionally directed in legal discourse to the rules that characterize a certain system, the weight of history cannot be neglected. Indeed, history shapes the way we think about the law. The argument that national traditions are not composed exclusively of rules has two limbs. It is not always the case that the basic normative elements of a certain legal system are to be found in a set of written rules. Nor is it infrequent that very similar legal, if not identical, provisions adopted by two legal systems produce differing consequences. These limbs will be addressed in turn. The first will be analyzed in reference to the United Kingdom in two respects: the English Constitution and natural justice. The other will be discussed with an eye to the different effects of the judicial reforms made in Belgium and Italy during the nineteenth century. This discussion will also serve to introduce another argument, namely the claim that different routes are interdependent.

The possibility of finding a written text including the fundamental norms of the legal system is notoriously doomed to failure in the UK. Although its constitution is often described as being ‘unwritten’, this term is misleading for two reasons. It is true that, unlike – for example – Germany and the US, no single document in which the UK Constitution is defined exists. Nor is there any ‘official collection of constitutional rules’.⁵⁵⁷ There are, however, other aspects of the Constitution that are written down, either in primary legislation (electoral law is a good example) or in parliamentary internal rules. However, the English case is important because it shows that giving much weight to the existence of a set of rules of law about the conduct of the business of government is misplaced for a more fundamental reason: parts of the constitution are made up of customary practices and conventions, whose precise form and content are not laid down in any official document but which are regarded as legally binding.⁵⁵⁸ Such conventions, which date from the Magna Carta (1215) and the Bill of Rights (1689), can thus be regarded as custom, in conformity with the established conception of custom confirmed in Article 38 of the Statute of the International Court of Justice; ie, ‘a practice accepted as law’.⁵⁵⁹

The role of custom is important also for a proper understanding of the basis of procedural constraints on the exercise of power by public authorities, which in English law is the concept of natural justice. As indicated earlier, despite its name, natural justice is not a natural law concept (though for a long period of time the law of nature was a source of law to be applied by the courts) but, rather, a term of art.⁵⁶⁰ It includes the two fundamental maxims of the unbiased adjudicator (nemo judex in re sua) and of the right to be heard (audi alteram partem). Their historical evolution is well illustrated elsewhere.⁵⁶¹ What matters, for our purposes here, is that both these principles do not derive from any positive law. Moreover, precisely because they are principles, as distinct from rules, their interpretation and application have varied throughout time. Thus, for example, in the years that preceded Ridge v Baldwin, a case concerning the dismissal of a policeman that is similar in more than one respect to our hypothetical case discussed in Chapter 8, Wade lamented the ‘defiance of natural justice’.⁵⁶²

The French legal regime for holding public authorities liable in tort, discussed in Chapter 3, is equally instructive. We have accurate accounts of the process by which the divergence between the French legal regime and others occurred. We know that, even though the decision taken by the Tribunal des Conflits in Blanco (1872) was not considered by French judges as disruptive of the accepted order of events, it implied that the rules on liability codified by the Napoleonic Code of 1804 were not applicable to public authorities. Only two aspects in this narrative need be remarked here. Formally, under the traditional understanding of equality before the law, citizens must be treated alike, but government officers were not subjected to the same rules of law. The result of this has been a reinforced separation between public law and private law. However, substantially, in the long run, the Conseil d’État defined standards of government liability that largely coincide with those applied by the ordinary courts.⁵⁶³

The argument derived from history may, as we have seen above, be reinforced by the contention that history exerts a strong influence on the application of legal provisions. This important point can be demonstrated by referring to the birth of the Italian system of administrative justice. We have seen that the Belgian Constitution was literally reproduced by the Italian legislator in 1865. Like in Belgium, the idea was that the ordinary law had to be applied by the ordinary courts. Existing administrative bodies discharging judicial functions were thus abolished. However, the Italian Council of State retained some judicial functions, such as those in disputes concerning public debt, on the grounds that this was a manifestation of sovereignty.⁵⁶⁴ It also kept its traditional role as adjudicator with regard to the claims brought by citizens to the Crown. Twenty-five years later, it was entrusted with judicial functions over public law disputes. The main argument supporting this reversal was that the ordinary courts had shown a reluctance to ensure the protection of the substantive interests that emerged from a rapidly changing society. But tradition, too, played a role. The more general point of interest here is the necessity to go beyond the mere claim that ‘history matters’. Earlier stages of administrative law exert a profound influence on the development of institutions and norms.⁵⁶⁵

Some problems, however, are inevitable. What, then, of the argument outlined initially in dissent from the thesis of Savigny and Dicey that administrative law is a sort of national enclave? Do not the results of our analysis forcefully indicate that the weight of history is decisive in shaping legal institutions and norms? Do they not reinforce Edmund Burke’s argument that the longstanding patterns of behavior, or ‘customs’ (whose origin is ‘dark and inscrutable’), are more important than laws because they are the main source of traditions, which reflect the views of several generations, instead of the one that supports the passing of new legislation?⁵⁶⁶ A superficial understanding of the relationship between history and public law might, in fact, suggest this conclusion.

However, a more considered appreciation of the results of our diachronic and synchronic comparison reveals the inadequacies of this argument from two angles. Firstly, history is often considered too narrowly. In particular, most lawyers’ retrospectives focus on modern law, while little attention – or none at all – is devoted to less recent periods, during which some of our administrative and judicial institutions were forged, and some central concepts of public law were elaborated, such as the ‘public interest’, for example. Thus, for example, Craig has observed that the predominantly modern focus precludes a more articulated analysis of the rationales for change.⁵⁶⁷ Secondly, there is a serious risk of overrating path-dependence; that is, the idea that events, in our case legal realities, are causally determined by preceding events and their consolidated accounts. This point can be demonstrated both generally and specifically by way of a further reference to the Belgian system of administrative justice.

In general terms, Posner’s remark that ‘law venerates tradition … and custom’ and is ‘past-dependent’⁵⁶⁸ fits well with traditional accounts of public law. Whether the development of our institutions should be regarded in a path-dependent manner however is a much debated issue, a source of reflection for recent scholars. Three aspects of this debate deserve mention here. Firstly, economics and political science literature shows that there are costs associated with switching from one option to another, which explains the importance of issues of timing. However, the performance of institutions is the outcome of several factors, some of which promote innovative activities. This is the main reason why deterministic models do not work.⁵⁶⁹ Organizational studies, too, have often shown that path dependency does not wholly determine behavior, as agents may perceive and interpret previous paths differently and to some extent act differently from what others might expect or suggest.⁵⁷⁰ Secondly, historians of law have pointed out that, while the nineteenth-century idea that law changes following certain determinate stages or patterns have not survived the end of that century, it is important to concentrate on the factors that make certain societies and their legal institutions ‘change in one way and others in different ways’.⁵⁷¹ Lastly, one thing emerges clearly in the literature on due process of law: traditions are not static, they evolve.⁵⁷²

The findings of our research confirm that the shaping of legal institutions is not necessarily driven by history, as evidenced by the Belgian case. It was with the birth of the new legal system in 1831 that the Constitution laid down that all powers exercised by public authorities had to be subject to the ordinary courts. It did so because it was assumed that this was a better system than those in France and the Netherlands, where special administrative courts operated. The Belgian monistic system of judicial review of administration was thus the product of choice, rather than history. A variant of this problem regards the countries that have made different choices through time, autonomously or otherwise. Thus, for example, since Italy made opposite choices in 1865 and 1890, initially in favor of ordinary judges and eventually creating administrative courts, when the new Constitution was drawn up, on the basis of what criteria could the supporters of either solution decide which tradition should have the greatest claims of relevance? The situation is even more complex when there is an external factor. Thus, for example, in countries – such as Hungary – that had been subjected to Soviet rule between 1945 and 1989, adherence to tradition could imply re-discovering institutions suppressed during that period of time.

3 Context Matters: Mentalités in Public Law

While the preceding sections have confirmed that history exerts a considerable influence on the shape of legal institutions, this one will argue that culture, too, matters more than is often thought. However, it does so differently from what is believed by some comparative lawyers, whose claim is, in essence, that legal traditions are incommensurable. The structure of the argument in this section should be clarified from the outset. First, we will examine the concept of incommensurability, in itself a complex enquiry; however, it is possible to refer to scientific studies showing the fallacies of the argument of incommensurability. Secondly, some examples examined in previous chapters will corroborate this view, showing the importance of culture from a different angle.

It ought to be said from the start that the incommensurability argument does not discuss facts or legal realities but concerns, rather, epistemology, because it is concerned with the human mind’s relationship with reality.⁵⁷³ At the heart of this argument there is the ‘crucial notion of incommensurability’, which has not just a critical, but a polemic thrust, as – in Legrand’s words – it ‘wants to fight against the received view that there exists a law-text that would present itself in its ontological self-sameness both to those operating locally and to those operating elsewhere’.⁵⁷⁴ The underlying assumption is, however, not epistemological but prescriptive, because it is asserted that ‘comparative thought must become the endless exploration of differends’, that is, it ‘must address legal cultures as radically different’.⁵⁷⁵

There are three problems with this argument. The first concerns its epistemological foundation. A concealed premise underlying the argument is that facts just do not matter. There is little basis for this assumption. One may agree that facts do not speak for themselves but must be interpreted in the light of other facts. However, they exist apart from perceptions. Eliding this fundamental distinction is, epistemologically, untenable.⁵⁷⁶ In brief, we cannot prescind from what has been a set of facts – in our case of legal realities. The argument based on incommensurability is, moreover, weakened in a more specific manner, as Glenn has shown in various ways: distinguishing between incomparability and incompatibility, the latter not preventing the former; evidencing that what underlies incommensurability is, ultimately, a normative preference for singularity and diversity;⁵⁷⁷ and observing that since legal traditions ‘are constituted by information’, which cannot be rigidly controlled and confined, they have not existed in isolation from one another in the past; still less can they be said to exist in isolation today, thanks to more widespread and systematic channels of communication of information.⁵⁷⁸ The argument from incommensurability is, in the end, problematic from the viewpoint of policy choice. This problem has already been considered in the previous chapter. Suffice it to add that similar choices about instruments are not precluded by diversified views regarding the ends or final goals. The similarity among instruments might be appreciated on a temporary basis or as a second best, if the optimal solution is unavailable for some reason.

As a variation on the line of reasoning followed by Glenn, the simplistic argument that there cannot be borrowings and transplants because legal traditions are incommensurable does not withstand scrutiny in the field of administrative law. As will be argued more extensively in the following chapter, there is empirical evidence of a rich history of transplants. This history includes the early diffusion of judicial monism, based on the English experience, in Belgium (1831) and, through it, in Italy (1865), as well as the later diffusion of the French dualist model in Austria, Germany, and Italy between 1863 and 1890. This story also includes the diffusion in new States such as Czechoslovakia, Poland, and Yugoslavia of the Austrian legislation on administrative procedure only a few years after the dissolution of the Habsburg Empire. Last but not least, it includes the diffusion of Spanish administrative procedure legislation in Latin America. Narratives of administrative law divorced from these empirical findings do not meet the standard of scientific scrutiny. Nor is the oft-asserted exceptionalism of English law confirmed as far as procedural constraints on public authorities are concerned. On the contrary, our factual analysis has confirmed the finding of a Canadian writer, according to whom the fundamental maxims of natural justice in England and the requirements defined by the French Conseil d’État are ‘strikingly similar’.⁵⁷⁹

After explaining why the radical view of mentalités must be rejected, both in its generality and more specifically from the viewpoint of public law, it remains to be seen whether it can be relevant not in an attenuated, but in a different, version. It is in this respect that Dicey’s attack against the French system of droit administratif, for all its weaknesses, can be helpful for a better understanding of national traditions. As indicated previously, his attack was threefold. He argued that if administrative law was intended as a special body of institutions and norms concerning the powers and immunities of public authorities, this was incompatible with the rule of law. He added that the establishment of special administrative courts aggravated the problem. The problem was further exacerbated by the establishment of a special regime governing the liability of public officials in their dealings with private individuals. These weaknesses, Dicey argued, inevitably led to despotism. In order to emphasize this further, he used a powerful rhetorical argument. He asserted that the French Conseil d’État was an institution akin to the Star Chamber.⁵⁸⁰ This requires a slight historical digression. The Court of the Star Chamber (also called Sterred Chambre or Camera stellata, because of the golden stars that decorated the roof of the place where the court worked), was a court that sat in London from the 15th century to 1641, when it was abolished. While its members sat in the Court for judicial purposes on some days, on the other days of the week, they were engaged in the business of government.⁵⁸¹ Together with its procedures and the harsh sanctions imposed in various cases, this explains why the Star Chamber became a sort of negative model of a judicial body characterized by opaque, if not secretive, proceedings and arbitrary rulings. To borrow the words of a historian of law, the Court of Star Chamber ‘has left its name to later times as a synonym for secrecy, severity, and the wresting of justice’.⁵⁸² Less than fifty years ago, the US Supreme Court referred to the Star Chamber as an instrument of tyranny.⁵⁸³

We have already seen in Chapter 1 that both the descriptive and normative foundation underlying the rejection of administrative law was questionable. In a similar vein, when reviewing Bonnard’s comparative study on judicial review of administration, Jennings not only observed that Dicey ‘quite misunderstood the nature of French administrative institutions’, but he added that, unlike other continental writers, Bonnard knew ‘too much about English administrative law to be led to assume that Dicey’s statements about it are either adequate or correct’.⁵⁸⁴ Nowadays, in the UK things have changed, as there is a ‘sophisticated system of administrative law’.⁵⁸⁵

However, as is often observed, ideas matter. Jennings himself was well aware of the fundamental importance of Dicey’s ideas. The issues he discussed assumed a shape quite unlike the form they had before him. It was only in his exposition that the salient features of the English Constitution received the form that they have conserved for the cohorts of lawyers who studied his treatise of constitutional law and were taught that not only there existed, but there had to be, public administration without administrative law.⁵⁸⁶ In brief, this has become the commonly held view. Even in the mid-twentieth century, that mentalité still held centre stage.⁵⁸⁷ Borrowing Kuhn’s terminology, it can be said that, as that paradigm has used to account for the legal world, ‘normal science’ has elaborated knowledge within such paradigm.⁵⁸⁸ This makes it difficult to understand concepts elaborated within other paradigms. Thus, for example, lawyers trained in common law countries often note the difference between methods based on testing definitions and distinction against reality, and those based on a high level of abstraction and conceptualism, typical of Continental legal cultures.⁵⁸⁹ Thus, certain ideas about the law, such as the cardinal distinction between public and private law, are not universally shared.⁵⁹⁰

This confirms the point outlined above that traditions are not based simply on facts but also on ideas and beliefs about the law that are shared and persist through time.⁵⁹¹ It would be a mistake, therefore, to assume that the canons of administrative conduct that exist in a group of nations will be shared by their neighbors. However, it would equally be a mistake to assume that traditions are inevitably static and immutable, a point of general importance that requires further analysis.

4 Policy Considerations and Change

Montesquieu’s idea of legal evolution provides an interesting starting point. His acknowledgement of the infinite diversity of human laws⁵⁹² is often cited as authority supporting a contractive or contrastive approach to comparative law, ie, one that emphasizes diversity. However, he did not rule out the possibility that some invariable laws (lois invariables) existed and could be found. Methodologically, his approach implied a deviation from the traditional deduction from first principles that characterized theories of natural law. Moreover, he stressed the fact that legal precepts change from one country to another, straight after a river or a chain of mountains. The fact that he gave weight to factors such as climate or latitude reinforced his general thesis that the particularities of legal orders must be considered within the general state of each society. However, such particularities do not depend only on fundamental beliefs and values but also from other factors.

Finally, he observed that such differences are not unchangeable. This emerges, in particular, from his analysis of safeguards against arbitrariness. Montesquieu addressed the audi alteram partem maxim in the judicial process. He began by saying that this maxim had been codified in the French legal order for more than a thousand years. He added that the principle was much older and provided two plausible reasons for its codification, namely that a different practice had existed in some particular cases or within non-civilized nations (‘chez quelque peuple barbare’).⁵⁹³ For him it was axiomatic that different nations can, and most frequently do, follow different rules, but this does not prevent them from adjusting their rules, either gradually or all of a sudden, in this case through codification. In other words, whether institutions are driven by history is the issue that Montesquieu considered, and his answer was that they are not immutable. He thus adopted a dynamic perspective against determinism.⁵⁹⁴ Moreover, he drew attention to the factors that may require change. Given his concern for the preservation of freedom, it is not surprising that he sought to ensure that justice was done for the individual. Recognizing and protecting the right to be heard in a code was thus a requirement to achieve the ends of justice. By contrast, the practice to the contrary was unacceptable in a civilized nation. In so saying, Montesquieu referred to the intent to distance one’s own country from another that is regarded as less civilized. The same could be done with regard to a country that is a neighbor, but which is regarded as distant for purely political reasons such as the nature of government. We have already touched upon this argument when it was observed that Belgian reformers in 1831 decided not to adopt the dualist system of administrative justice that characterized both the Netherlands and France.

The origin of the French tradition of administrative justice is itself of interest to our line of reasoning. Before the Revolution, administrative activities were controlled by the courts of law called ‘parlements’, the most important of which were those of Paris and Toulouse. Their action was often criticized for opposite reasons: by the Crown, on the grounds that the courts were unduly enmeshed in the exercise of administrative powers, and by citizens, because sometimes those courts refrained from rendering justice on grounds that the law either did not exist or was obscure.⁵⁹⁵ The Crown’s reaction against the parlements emerged in the edict of Saint-Germain of February 1641, which prohibited the parlements from judging and cases concerning the State, its government and the administration, reserving them to the King.⁵⁹⁶ The edict was re-affirmed in 1661, a fact that shows the resistance of parlements. In the revolutionary period, a transformation occurred. It was initially the National Convention that decreed in 1790 the annulment of all proceedings and judgments that had taken place in the ordinary courts against the members of the administrative corps and committee, based on claims for property seized, or arising out of revolutionary burdens imposed on individuals and families, or any other acts of administration, and imposed upon those courts repeated prohibition against taking cognizance of any acts of administration of whatever character. This prohibition was followed by the creation of the conseils de préfecture and subsequently by the establishment of the Conseil d’État in 1799,⁵⁹⁷ within which a judicial section was established in 1806, though the Council’s advisory and judicial functional were separated between 1831 and 1839.

Two strands of thought interpret these facts differently. The first argues that the Revolution brought a radical change, a mutation. According to this line of thinking, in brief, modern France was born with the Revolution. More specifically, although the Conseil d’État had ‘certain resemblances’ with its predecessor, the Conseil du Roi of the ancien régime, it was a Napoleonic creature.⁵⁹⁸ According to the other strand of thought, the edicts adopted since the 17th century, together with the existence of the Cour des Comptes and other special courts, show a pre-existing tradition. Rivero, among others, has observed that the underlying idea owed much to Montesquieu’s doctrine of separation of powers and that the Convention and Bonaparte added something important to the prohibition; that is the creation of administrative courts. Referring to Montesquieu, however, poses more problems than it solves, because he was in search of a system that could ensure a better safeguard against abuses of power. He found that the English system achieved this goal thanks to the separation between the executive and judicial branches of government. He then theorized the necessary distinction between these and the legislative branch.⁵⁹⁹ Some decades later, faithful to Montesquieu, Article 16 of the Declaration of the rights of men and the citizen (1789) affirmed that ‘a society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all’. This was perhaps the clearest and strongest assertion of the virtues of the separation of powers. But only one year later, the Convention interpreted it differently when it was confronted with the issue of judicial review of administration. This debate corroborates the argument set out above, ie, that a tradition is characterized not only by a succession of events but also by the existence of a certain set of ideas and beliefs about public law, which also implies giving more weight to some events than to others. In this sense, a tradition may imply a limitation to law reform,⁶⁰⁰ but it does not necessarily do so, either if there are good reasons for rectifying some aspect of it or if a more sweeping change occurs.

5 Diverging Traditions: Rules and Legal Formants

The preceding arguments suggest that a strong dose of caution is required in order not to give excessive weight to history and culture, and thus to avoid the connected risk of determinism and reductionism. They also suggest that it is preferable to focus on legal traditions. Various arguments support this choice. First, the idea that what matters more is the existence of a set of written legal rules is untenable because, as various studies in both history of law and legal sociology have shown, several other factors or formants concur in shaping the law.⁶⁰¹ Second, it is more appropriate to speak of legal traditions, as distinct from other organizing concepts, because this concept has the advantage of focusing on the contents characterizing each tradition.⁶⁰² As a variation of the previous argument, the term tradition is used in comparative studies concerning administrative law, pointing out its relationship with national traditions.⁶⁰³ Last but not least, the term ‘tradition’ is no longer only one that is used only in academic studies but is increasingly referred to in legal documents such as the treaties upon which the EU is founded and its Charter of Fundamental Rights. The last two arguments will now be addressed more in detail.

The results of our comparative enquiry confirm the existence and importance of distinct administrative traditions in Europe. Fully understanding them is a large project. Here I will only discuss three elements that can be helpful for such an understanding: operational rules, legal formants, and values. Even the rich case law of the ecj concerning the general principles of law common to national legal orders and the vast legal literature that discusses such principles are dotted with the remark that they coexist with different operational rules. Two brief but apposite examples will serve to demonstrate this. Even one of the closest things to an invariant, the individual’s right to be heard before a decision adversely affecting his rights or interests is taken, is differently shaped depending on whether there is a hearing, as is the case with the majority of European laws, or only the possibility to have access to the documents held by the public authority and to submit other documents and evidence, as in Italy, for instance. Another example will serve to demonstrate the same point in a related context, that of the duty to give reasons. As for citizens, this is a means of obtaining justice in individual cases, as well as ensuring the accountability of administrators. In the settled case law of the ecj, reasons ‘give an opportunity to the parties of defending their rights, to the Court of exercising its supervisory function’.⁶⁰⁴ This reflects a widely held conception of reasons. Some national courts argue that the requirement to give reasons is part of the common legal patrimony. Other courts will most probably agree with this proposition, but at a very abstract level. However, operational rules differ – and sometimes remarkably. For example, in the UK there is no general duty to give reasons in common law. Nor does statutory law establish it. This does not imply that the existing limits to legal rights cannot be challenged. Even a positivist lawyer might wish to reflect on whether such limits are justified in the light of the obligations stemming from membership of European organizations, such as those of Article 6 echr. He may deem that the guarantees of due process it establishes can be relevant for interpreting national rules. Indeed, he might go further and wonder whether such rules should even be assessed against such a backdrop.

This remark about the role of judge-made and statutory law also serves to shed light on legal formants. Sacco introduced the phrase ‘legal formants’ in legal discourses, drawing from phonetics. His claim is that ‘living law contains many different elements, such as statutory rules, the formulations of scholars, and the decisions of judges’.⁶⁰⁵ He calls these elements legal formants. Although these elements are the fundamental components of any given legal system, they may vary in type from one country to another. Their respective importance varies, too. This becomes evident when considering, for example, the diverse relevance of constitutional conventions in the UK and elsewhere. It is equally evident when considering the increasing importance of general legislation on administrative procedure, as distinct from sector-specific rules. Interestingly, in this respect there is no divide between common law and civil law systems: rather, we can speak of a fragmented situation, because the US has adopted general legislation since 1946 and, in one form or another, it has become common in Europe and the Americas. In addition to these more obvious components of a legal order, there are other legal formants that may be partly or wholly hidden to outsiders. Among these formants, which are less evident but important, there are both practices and uses, on the one hand, and styles of legal reasoning, on the other. The former encompass, among other things, the ways different institutions perform their controlling functions. The latter is characterized by the ‘high level of abstraction and conceptualism’ typical of continental academic works.⁶⁰⁶ Another example concerns the background theories of the State that underlie certain judicial decisions, for example as far as the liability of public authorities in tort is concerned in Hungary. Whether there is an even more striking diversity in the Russian legal system is an interesting question, which deserves further analysis. A study of this kind would also be important from the perspective of values now that the Russian Federation has ceased to be part of the Council of Europe.⁶⁰⁷ This clearly marks a striking diversity vis-à-vis the other legal systems, which remain subject to the principles of the rule of law and the universal enjoyment of human rights and fundamental freedoms.

6 The Legal Relevance of National Traditions

The differences between European legal systems just outlined are not relevant only from an empirical or factual perspective, but also from the deontological or normative point of view. This can be appreciated with regard to both the CoE and the EU.

Within the wider Europe, bound by the echr, various provisions of the Convention recognize that it is a prerogative of national institutions to decide how best to balance the various interests expressed by society. The basic assumption is that the majority can decide what is considered to be the public interest. On this basis, the European Court of Human Rights has often (even too often, according to some critics)⁶⁰⁸ applied the ‘margin of appreciation’. This doctrine is not unknown, though differently formulated from other supranational judges such as the cjeu. It implies a degree of deference to the limitations to the fundamental rights that States deem it necessary to impose. This makes it possible to balance legal and political necessities, an exercise common to several higher courts.

Within the EU, there is an increasingly widespread but often unclear debate concerning the meaning of the reference made by the treaties to the respect of ‘national identities’, which is said to be inherent in national ‘fundamental structures, political and constitutional’ (Article 4 teu). A more secure foundation for national traditions is provided by other provisions of the treaties. First, the phrase that best encapsulates the political project on which European integration is based, that is, ‘determined to lay the foundations of an ever closer union among the peoples of Europe’ is legally relevant and significant. It shows that pluralism, from a social perspective, is an element that characterizes the EU not just from a factual perspective but also from a deontological or prescriptive one. Secondly, although Article 6 teu refers only to ‘common constitutional traditions’, there are obviously other traditions that are not common, belonging to each nation. Third, the preamble of the Charter of Fundamental Rights, which makes a clear reference to the existence of both common ‘constitutional traditions and international obligations’, recognizes ‘the diversity of the cultures and traditions of the peoples of Europe’.⁶⁰⁹ Since the Charter has the same legal value of the treaties, it can be said that there are various provisions supporting a pluralist vision of the legal order of the EU.⁶¹⁰ Fourthly, a specific but important provision laid down by the other Treaty upon which the EU is founded, that concerning the area of freedom, security and justice, affirms that it is based on respect for fundamental rights and ‘the different legal systems and traditions of the member States’.⁶¹¹

Two brief conclusions follow on from this. On the one hand, the differences previously noticed with regards to operational rules and legal formants must be not only understood, but also respected, in their essence. On the other hand, this is not without consequences for legal theories. An approach that emphasizes only commonality would be, prescriptively, particularly weak in the European context.⁶¹² An approach that emphasizes only diversity would be equally weak, as will be argued in the next chapter.