The Italian Theory of Comparative Law Goes Abroad


The aim of this paper is to assess the influence of the Italian comparative law scholarship outside its national boundaries, and particularly in Latin America, where it has had its strongest impact. In order to achieve our goal we will start by sketching a picture of the current status of the Italian comparative law, tracing its roots, explaining its development and analyzing its weaknesses and strengths. After exploring its reception in South America, we will ultimately try to envisage the future challenges, directions and contributions of the Italian Theory – as we labeled the Italian comparative law “way”.

Comparative Law in Italy: Emergence and Development of a Discipline*

The Emergence of Comparative Law in Twentieth Century Italy
Claims of an earlier origin for the sake of a more respectable pedigree notwithstanding,1 the story of comparative law begins in Italy in the early part of the twentieth century. Since then, three fundamental layers have been at play: a commercial law branch, a reformist tradition, and a mainstream, "scientific" approach. In time, each of them proved to be very significant for the development of the discipline.

1.1.1
The Commercial Branch in the Early Twentieth Century: to Cross or not to Cross the Channel During the Fascist era , England was at the top of the list of official (political) contempt, and English law was simply not on the radar of Italian jurists at all. The same was true for the United States and American law. The common law tradition was treated with contempt, and Italian jurists tended to doubt whether Anglo-American "law" really even deserved that name. This attitude resulted in a deep and self-inflicted ignorance virtually about the entire common law tradition.
Yet, there was a major exception. A small group of commercial law scholars, among them masters such as Tullio Ascarelli , Mario Rotondi , and Angelo Sraffa , worked in the less parochial and more cosmopolitan spirit traditionally associated with commercial law and thus began to look across the Channel and even across the Atlantic. They were the first to take an interest in topics later to become classics of comparative law -questions of the nature and sources of law or institutions like the trust. This group, consisting in part of Jewish scholars who were forced to emigrate by racist laws, was instrumental in working towards an "integrative" comparison. Its members rejected the idea that the diversity of positive law created by national codifications (even in the domain of commercial law) essentially precluded effective communication among different legal systems -an idea that left international legal practice without a useful legal regime altogether. 7 Their early efforts at comparative studies were motivated by practical and professional concerns but, at the time, they nevertheless constituted the cutting edge of comparative legal scholarship in Italy. Their methodology was remarkably open-minded, and they were fully capable of looking through legal forms to the substance underneath.
Yet, while highly influential in the domain of commercial law, these scholars had little influence in the general domain of Italian jurisprudence. This tradition therefore remained completely uninfluential until after the Second World War.

1.1.2
The Reformists in the Post-World War ii Period: Broadening the View In the aftermath of the Second World War, the United States exerted pressure on Italy, as well as on Germany and Japan, to (re-)establish at least a local version of the rule of law. In this political climate, the German influence on Italian law began to decline and the common law tradition, associated with the victorious Anglo-Americans, rapidly gained prestige, at least with the avant-garde of the legal profession. After all, the civil law tradition with its emphasis on legislation and codification had proved impotent in preventing the rise of totalitarianism and dictatorship. The new institutional order of the free world thus had to recognize a significantly increased role of judicial power in order to effectively protect individual rights. And Italy was firmly committed to becoming part of the new free world. As a result of the agreements made between Churchill and Stalin as early as 1944, there was little doubt that Italy would end up on the Western side of what was to become the iron curtain, although formally speaking, that decision was made only with the socialist and communist defeat in the 1948 elections.
One of the lead players in the anti-Fascist resistance in Florence, Piero Calamandrei , had an early fascination with the common law tradition. When Calamandrei became a member of the Italian Constituent Assembly, and a famous attorney and leading civil procedurist, his predilections became widely influential. Calamandrei admired in particular the important role of practicing lawyers in the making of the common law tradition. He was convinced that the influence of the practitioners could also cure the civilian tradition of its abstractness and frequent lack of realistic perspective. Calamandrei was also an early advocate of adversary procedure, a critic of the ambiguous role of the Italian prosecutor-judge, and a supporter of reorganizing the legal profession along less bureaucratic and more policy-oriented lines.
According to a table talk recollection, as a 13-year-old boy who was assisting the resistance as a messenger, Mauro Cappelletti  met Calamandrei 8 in the mountains around Trento in the Italian north. In due course, the teenager was to carry Calamandrei's torch, to share his passion for the common law tradition, and to become the founder of the Italian reformist tradition of comparative law. For a long time, Cappelletti was the only Italian legal scholar with a worldwide reputation. His name is linked to two major collective projects, Access to Justice (1978-9) and Integration through Law (1985). In particular, his scholarly and policy contributions to our understanding of the implications and potential of judge-made law have remained unmatched.2 When Cappelletti died in 2004, he left behind a firmly established Florentine school of comparatists.
The Mainstream "Scientific" Approach in the 1950s and 1960s. The Emergence of a Comparative Law Made in Italy: from Gorla's Contract to Sacco's Legal Formants Oddly enough, the mainstream tradition of Italian comparative law has its birthplace, at least in a sense, in a small college town in the Eastern United States, that is, in Ithaca, New York. Ithaca was the place where, since the 1950s, Rudolf B. Schlesinger, the German immigrant, was conducting the preparation of his most ambitious project, his study of the Common Core of the rules governing contract formation. This project involved several key figures in the development of Italian comparative law: the young Mauro Cappelletti; Giovanni Pugliese (1914-1995), a distinguished Roman law scholar; and, perhaps most importantly, Gino Gorla (1906Gorla ( -1992, later recognized as the true founding father of modern comparative law in Italy.3 In 1955, Gorla, a somewhat heretical civil law professor at the University of Rome, published his highly original comparative book on contract law, Il Contratto. In this work, he pioneered the use of the case method and of a factual approach, introducing both into an area of law hitherto largely dominated by formalistic dogmatism.4 Thus, the publication of this masterpiece shook 9 the profession. Tullio Ascarelli called it "the first Italian wide-ranging comparative work". Gorla's Il Contratto was the result of years of searching for alternatives to the "dogmatic-conceptual" approach (as he defined it) prevailing in the Italian legal culture. Gorla had looked for such alternatives mainly in the United States. Between 1948 and 1949, he visited many American law schools and established particularly close ties with the Cornell Law School where he met Rudolf Schlesinger  with whom Gorla began a seminal scholarly dialogue. He found that the American case-based and inductive approach freed jurists from the intellectual strait-jacket of the broad and abstract concepts that Italian jurisprudence had borrowed from the German Allgemeine Rechtslehre. To Gorla, the American approach was like a breath of fresh air. Il Contratto was the product of this encounter with the American legal culture. Here, for the first time, not only in Italy but in all of continental Europe, key questions of contract law were addressed from an historical and comparative perspective, discussed in a case method fashion and with reference to four major legal systems -the Italian, French, English, and American.
The impact of Gino Gorla's work on comparative law was simply enormous. It opened completely new vistas for legal research. It also attracted the particular interest of Rodolfo Sacco (b.1923), a young private law scholar then teaching at the University of Trieste. Sacco was not directly involved in the Common Core project at Cornell and had never studied the common law in a systematic fashion, but he was greatly inspired by Schlesinger's approach as well as by Gorla's foundational work. Once interviewed about his own contribution to comparative law, Sacco declared with excessive modesty: "I have been a notary who put into writing, using some neologism when necessary, the new things discovered by R. David, R. Schlesinger and G. Gorla".5 Sacco's remark is certainly a serious understatement, but it remains true that the most influential version of Italian comparative law today -Sacco's theory of "legal formants" -has its roots in the post-World War ii tradition founded by René David in France, Konrad Zweigert in Germany, and Gino Gorla in Italy. The hallmark of this tradition is the idea of functionalism-structuralism which is now part of the mainstream of professional Western comparative law.6 After having tested it in his teaching at Trieste as early as 1958-59, Sacco first formulated his theory of "legal formants" under the label of "legal components" in an article exploring some aspects of the law of the Romanist 10 tradition.7 He fully developed his theory in a report for the International Academy of Comparative Law meeting in Teheran in 1974.8 It became widely known through Sacco's treatise Introduzione al diritto comparato9 and finally became available in English through a translation by James Gordley in 1991. 10 As described in the leading American comparative law casebook, the methodology of legal formants looks deceptively simple: "Professor Sacco has shown that there often is not, in a given legal system, a single unvarying rule on a particular point, but rather a series of different (sometimes conflicting) formulations of the applicable rule, depending on the kind of source consulted. The code may say one thing, the courts another; scholars may state the rule differently; the tacit rule actually followed may again be different from what anyone says it is. These different possible formulations are 'formants' (the term being borrowed from phonetics, the science that studies sounds) of the rule as it obtains in that particular jurisdiction. Understanding a legal system requires attention to the different incidences of its rules at various levels of practice and layers of discourse. An important reason for such differences may be that the 'formants' of a rule derive from different sources: for instance, the legislature's rules may derive from a particular foreign system, while scholars have systematized them using concepts and principles borrowed from another. This phenomenon is particularly noticeable in the many civil law systems which, like Italy, initially adopted codes based on the French prototype but later fell under the spell of German legal scholarship".11 Sacco's idea of "legal formants", that is, of a legal landscape consisting of components not necessarily coherent with each other, provided a theory for the demise of the paradigmatic Kelsenian idea of law as a pyramid of orders from the sovereign at the top to the subject at the bottom. From now on, the comparatist could no longer be content with such a rigid order. Instead, she needed to discover, analyze, and contrast with each other, a variety of "formants" in order to capture the complexity of a legal system and of its "rules". This represented a significant step forward in our understanding of the nature and life of the law. Indeed, the "legal formants" is the most influential formulation of the current structuralist methodology and it is probably the most important and lasting contribution of Italian scholarship to the discipline of comparative law, to the point of generating what can be called the "Italian Theory of Comparative Law". In Italy, the mainstream approach to comparative law put private law at its center. Enriched by various methodological innovations,12 this has become the core around which comparative law in Italy has grown as a professional project. While Gino Gorla's later work focused on historical inquiries into the sources of law in the traditions of the common law and of the ius commune,13 and while Rodolfo Sacco broadened the field, particularly through his many disciples, the Italian mainstream continued to focus on the study of private law, which was kept rather strictly separate from comparison in other areas.

Italian Comparative Law Develops: the 1980s and Beyond
The original division of the Italian comparative law community into a commercial law school, a policy-making group, and a structuralist mainstream no longer exists today and may merely be used as a device to help us understand the major trends in today's highly diverse community of comparative law scholars. In current Italian comparative law scholarship, these three sub-traditions (to which we could add a fourth if we included the historical approach of the late Gino Gorla as a separate variant of the structuralist mainstream) often mix and blend into the work of individual scholars. Yet, the current comparative law landscape in Italy is also populated by a great variety of other, non-traditional, schools and approaches.
The private law bias referred is also about to be overcome. Public law is today at the very center of the discipline itself, relying on a flourishing group of scholars, many of them inspired by the work of Alessandro Pizzorusso , who since the 1980s strove for the unification of the two core components of the discipline.14 Nowadays public law comparatists engage themselves at the European and international level, taking up the challenges of a multilevel protection of human rights as well as of the international legal order that is building upon a fruitful dialogue among the higher courts. 15 Recent developments have also forced scholars in many legal areas beyond the traditional private law subjects to become comparatists of sorts. The significant "Americanization" of Italian law in the post-cold war era, together with the ongoing legal integration of Europe and, beyond it, the globalization of law, have been driving foreign, international, and comparative perspectives into many areas of domestic law, especially in the realm of economic regulation. As a result of these developments, areas outside private law are now experiencing what private law went through in earlier decades: a "comparativization" from the top down, so to speak, led by the emerging shape of the international legal order. In other words, comparative perspectives are injected into many, if not most, areas of erstwhile purely domestic law. 16 Most significantly, moreover, Italian comparative law has made considerable progress towards an interdisciplinary approach involving other social sciences.
Beginning in the 1980s, Italian comparatists developed an interest in the "Law and Economics" movement in the United States and soon began to import its paradigms. The original hope that economics could offer a way to evaluate alternative institutional solutions in an objectively measurable way was eventually abandoned, albeit without much empirical experimentation. But economic analysis of law has also been combined with comparative analysis more generally and is now widely used for purposes of legal interpretation. More recently, it has also been discussed in a critical mode, especially for the purpose of exposing the economic fallacies underlying hegemonic patterns of dominance through law.17 Italian comparative law scholars have also explored the possibilities of cooperation with legal anthropology. In fact, Italy is one of the few places in the world where both the French and English traditions of legal anthropology have been known and discussed for quite some time. The study of legal anthropology (as well as of legal ethnology) has sought to understand unwritten and even completely non-verbalized legal phenomena in various contexts.18 One should add that notions of legal pluralism were developed by Italian scholars as early as the 1920s (Santi Romano19 and Giacomo Venezian,20 among others) and that an archaeological method of inquiry into African law has been used by several Italians, including Rodolfo Sacco in his early work on Somalia.21 These interdisciplinary efforts aim to go to the very heart of legal phenomena and avoid the assumption that all law must be written or even spoken, let alone cast in official form. Overcoming this assumption, in turn, has improved and enriched the theory of legal formants, broadening its focus. In its original version, this approach challenged the traditional hierarchical view of legal sources, showing, for instance, that an article in the civil code competes with a court decision in producing the governing rule. But this challenge had remained within the confines of legal positivism, so to speak. Recent work in legal anthropology has elucidated other, non-positive, factors that are at work as well. Thus, "users" of law also influence legal change, for example, by making (non-professional) decisions that have an impact on how the law works, as when a victim's feeling of injustice drives him or her to bring a lawsuit or to pursue an appeal, or when a company seeks to maximize its profit by cutting (legal) corners. Today, Italian comparatists thus also consider "meta-legal formants" among the components that constitute a legal rule, such as political backgrounds, economic environments, ideas currently in vogue, and the need for social cohesion. This has enabled them to fully appreciate the context in which a legal rule arises, operates, and has an effect. Such an enriched, broader, version of the legal formants approach goes beyond officialdom and professionalism. It shows that legal formants are not independent of social, economic, and cultural factors and that dimensions of power, and especially of power disparity, play an important role in shaping the law.22 18  "Contexts of reception" that import from abroad usually do not themselves contribute to the global legal landscape. For most of its modern history, Italian legal culture -particularly domestic -expressing itself in a recessive language, has been no exception. Yet, in recent years, several Italian jurists, particularly comparativists, expressing themselves in English (and often in other foreign languages as well) have become quite well-known and influential abroad.
In 2017, three volumes on very basic topics, such as property, torts and contract in comparative law, have been edited in English by many Italian comparatists,23 and the Oxbridgian prestigious handbooks in comparative law are equally divided between German and Italian scholars.
Several Italian comparatists have led major cooperative projects on an international scale. Cappelletti's work on access to justice, that involved jurists from many countries, made a lasting contribution to the world of comparative legal scholarship.24 The "Common Core of European Private Law" Project, is twenty-five years old and has produced more than twenty volumes edited by two Italian comparatists and published internationally.25 Here, Sacco's legal formants analysis is being combined with the factual approach developed by Schlesinger at Cornell two generations ago. Involving more than 300 scholars from all EU countries and beyond, the Common core of European Private Law project has put Italian comparative law methods to work on the European level.26 Another notable project prominently involving an Italian comparatist In this vein some scholars have reconstructed the roots of the discipline paying attention to its geo-political dimension revealing the ideological and strategical bias underlying it: see, is the "Principles and Rules of Transnational Civil Procedure". The project, a joint enterprise of unidroit and the American Law Institute (ali), was led by Michele Taruffo, a well-known Italian comparative law scholar, and Geoffrey Hazard, a prominent US-American proceduralist. Beyond all this, there are various other international projects involving Italian jurists who are specialists in commercial, private, criminal, or international law, rather than fully-fledged comparatists.27 In particular, one of the most significant international codifications of so-called "soft law" is largely the work of an Italian scholar: the "unidroit Principles of International Commercial Contracts" are the product of an international working group under the leadership of Michael Joachim Bonell, Gino Gorla's successor in Rome. The "Principles" are a hugely important contribution not only to comparative legal scholarship but also, and perhaps more importantly, to international commercial law practice.
Furthermore, Italian comparatists have been appointed to strategic positions at the European level, bringing their comparative perspective into crucial European institutions.28 Finally, a few articles written by Italians (mostly in English) are widely discussed and cited abroad. Ugo Mattei's innovative taxonomy of the world's legal systems, proposing a dynamic classification, has been the object of international debate.29 The same scholar was the first to present a combination of comparative law and economics to a wider international audience, creating a logo that is now in general use.30 Likewise, Alessandro Pizzorusso's modelization of judiciary and judicial review systems has not only been nationally, but also internationally, acknowledged.31 It would perhaps go too far to say that we Italians are currently experiencing something of an inversion of the traditional situation, that is, a development from a "context of reception" to a "context of production". Yet, in the last few decades, we have made fairly significant contributions to the progress of the discipline on a worldwide scale. Thus, for the first time in our modern history, we are not only importing foreign ideas but also exporting our own.
Exploring the influence of the Italian comparative law scholarship in Latin America can provide us with a good example of such a kind of diffusion.

2.1
Italian Comparative Law in Latin America Perhaps the most valuable example of the current impact of the Italian comparative law scholarship in the world is the Latin-American context. Known as being traditionally neglected by mainstream comparative law,32 Latin American legal systems have become a genuine "comparativist's dream" thanks to the ongoing work of different sectors of the Italian academia.33 This phenomenon can be explained by two main reasons: the traditional interest of legal historians and Roman law scholars for the interactions between Italian and Latin American law and the grooving influence of the Italian "scientific" comparative approach in the region. Both aspects are accompanied by a substantial production of comparative literature in the Ibero-American language.

2.1.1
The Contribution of Legal History While the influence of Italian law scholarship in Latin America is taken for granted in various fields of law,34 the reception of the "comparative" scholarship needs to be examined with a widely known caveat: comparative law scholars have no monopoly on the comparison.35 Despite the scientific progress made by the Italian comparative law scholars in recent decades, it should be noted that a significant part of the contribution to the knowledge on comparative law has come from the work developed by legal historians, sociologists and philosophers.36 Namely, the ongoing influence of the Italian comparative academia in Latin America occurs regardless of the disciplinary "boxes" of the Italian research and university teaching system. In this light, it is useful to recall the massive biographical work of Mario G. Losano (b. 1939) regarding the jurists' "ferrying ideas between the continents" due to their exile caused by fascism and racial laws (1938).37 As documented by Losano, the intense friendship between Calamandrei and Eduardo Couture , the celebrated Uruguayan civil procedural professor, drove a humanitarian and cultural mediation and assistance to give refuge to some Italian scholars that were forced to emigrate in South America because of the racial laws. Thanks to Couture's support, Enrico Tullio Liebman, Tullio Ascarelli and Renato Treves, among other jurists, found acceptance in Uruguay, Brazil and Argentina. The rest is history of modern Latin American law: Liebman "founded" the procedural school of São Paulo, Ascarelli enriched Brazilian tax and commercial law with comparative insights38 and Treves, after a brief stay in Montevideo, developed from Tucumán the premise of the modern empirical sociology of law.39 Thus, far from being isolated or occasional episodes of models' circulation, these narratives are "useful auxiliary tools" for comparativists and local legal operators since they shed light on the general cultural context in which transfer and reception of ideas and legal norms take place.
Likewise Cappelletti's doctrinal organization display and phenomenological comparative method have vastly influenced areas of constitutional justice, theory of civil law procedure, access to justice, protection of diffuse interests, and alternative dispute resolution all over Latin America. Beyond the intense research exchange that Cappelletti promoted through his Florence projects and initiatives, the impact of his thought is due in large part to his continued involvement in academic activities in Latin America. His various visits to Mexico (four times from 1960 to 2003) have left a deep-rooted mark on constitutional justice.43 In 1981, he presented his ideas on the universal movement for access to justice at the 11th National Congress of Procedural Law held at The National University of La Plata (Argentina).44 Cappelletti's connection and influence on Brazilian scholars have been decisive to the latter implementation of federal statutes on access to justice and class action, which have served as a model for other countries in the region.45 Furthermore, as one would expect after any profound scientific exchange, Cappelletti's inductive and factual approach has been perpetuated by a distinguished generation of local scholars such as Augusto Mario Morello (Argentina), Héctor Fix-Zamudio and Cipriano Gómez Lara (Mexico), Rubén Hernández Valle (Costa Rica), and José Carlos Barbosa Moreira and Ada Pellegrini Grinover (Brazil). It is indisputable, therefore, that thanks to Cappelletti's lesson Latin American procedural science (and comparative civil justice) has moved from a scholastic, dogmatic and formalistic method to an approach that conceives the law as a "social phenomenon", that is, a sociologicalevaluative science of practical problems.
This concern against the dogmatic method and analytical reasoning is emphasized among a group of Latin American scholars who have promoted the comparative method founded upon Sacco's observations of the elements at work in legal systems. Sacco's theorization has been used to claim a place Although Sacco's scientific impact can be easily understood due to the traditional influence of Italian doctrine in Latin American private law,47 it is nonetheless worth noting that an important boost to the cultural exchange on critical comparative law comes from the in situ initiatives undertaken by contemporary comparatists linked to Sacco's school.48 In this regard, particular significance assumes a line of study developed by Lucio Pegoraro and his disciples in the domain of comparative public law. His leading research on the use of the scholarly doctrine by Latin American's high courts reveals the weight of the cultural circulation "among formants" in order to explain the domestic judge's behavior.49 Moreover, Pegoraro's reflections on the methodology of Latin America's public comparative research highlight the need to break away from the Eurocentric cultural mirage or "fiction".50 To achieve this goal, comparative scholars are called to look at the autochthonous forms of law 46 See, e.g., the extensive work on issues of civil liability and jural act of the Peruvian civil law by Professor Leysser León: Id., El sentido de la codificación civil: estudios sobre la circulación de los modelos jurídicos y su influencia en el Código civil peruano, The strong awareness of a non-Eurocentric conception of the Latin American legal system is a notable constant among the Italian comparativists committed to a historical and political reading of law. Losano's pioneering criticism of ethnocentrism in comparative taxonomies53 (and Mattei's dynamic classification) lead to new Italian investigations engaged in the search for the true legal identity.54 In this connection, Mattei's55 and Somma's56 critical attention to various aspects of the "Pan-Americanization" and "modernization" of Latin American law as well as Monateri's narratives about geopolitics, globalization and the making of legal hierarchies, show a natural (and unexplored) bond with the critical legal studies that emerged in Latin America in the late twentieth century.57 Finally, we should include a note of the impact of "legal translation" in the diffusion of the Italian comparative scholarship. As in any "strong idiomatic" context, Latin America's local jurists read foreign works in their own language and as in any reception context, translation has become a fundamental piece in the circulation of ideas from overseas. The Italian comparative production is no exception: key works from Cappelletti, Pizzorusso, Losano, and Sacco translated into Latin-American languages are considered seminal readings in the region.
But while legal translation of Italian works continues to bear fruit, thanks to the increasing interest of publishers and local institutions,58 an engaging current phenomenon is destined to leave a definitive mark on both the Italian and Latin American comparative scholarship: transatlantic joint research keeps growing and as a result comparative literature in Spanish and Portuguese languages will multiply as well.
However, much still needs to be done by Latin American jurists to set a truly symmetrical relationship with their Italian peers: comparative law tools are used by a minority of them and for rather circumstantial reasons;59 there is no local production of manuals or casebooks on the subject; articles on comparative methodology are still rare or in limited circulation; the study of the discipline, moreover, has not yet spread as a separate branch in the universities. The foundations of comparative law have still to be established and the future of the discipline will depend on the ability of local scholars to internalize and spread the comparative method. Only in this way will the emerging del siglo xx, Frankfurt am Main, 2015, p. 11 ff.; Id., "Il diritto latinoamericano tra svolta a sinistra e persistenza dei modelli neoliberali", Diritto pubblico comparato ed europeo, 2018, p. 57 ff. 57 On this legal movement see also García  Our conclusion is that the Italian Theory may now be profitably used in favor of a picture of comparative law mainly as ideological criticism: a critique of the way lawyers produce meanings as a key factor in the working of a legal culture.62

A Radical Interpretation of Legal Transplants
We start the argument in considering comparative law as an attempt to mediate between a "field" and an "audience", coping with the problem of selfdefinition of one culture within the legal world. It is indeed patent to us that we can speak of import/export only when we have defined where the boundary is, which means that we have stated principles of inclusion and of exclusion, of similarities and differences.63 Thus defining identities depends heavily on the framework assumed for the mapping. Of course a main subject today consists of the conscious projects of export of "Western" legal models in "exotic" areas like Latin America, with striving efforts in design of institutions, and in actual drafting of model laws, particularly in the field of Corporations. What is amazing is that such projects of governance through exports of legal patterns are carried on notwithstanding the lack of a commonly accepted theory of legal "identities" and legal transplants. From this standpoint both the "definition of identities" as well as the "import/export" can be seen as interested, non-neutral, purposive projects of governance. Now if we adopt this strategy of analysis to cope with "comparative law" as a discipline, we can see how much it has been an attempt to meet different audiences, and their expectations. Which is to say that comparative law has not normally been "transnational" at all, but rather it has grown within the frameworks of different legal traditions, responding to "inner" needs of legal elites.
What we do now, indeed, is to try to give a radical interpretation of the theory of legal transplants. If one postulates a close inherent relationship between law and the society in which it operates, legal transplants ought to be virtually impossible, and an influence of the Italian thought on Latin America would be possible only on the basis of an asserted similarity of culture and/or historical setting. But what is true is that the history of law is characterized by a prodigious amount of borrowings, rather independent from society. What is wanted in the study of the diffusion of legal ideas is not simply a catalog of borrowed 62  "traits", but an examination of the devices for cultural sharing and selection through which legal "unity" is constructed and sustained by legal elites. 64 From this standpoint the essence of a legal culture is contained in its contradictions: the picking up of foreign elements, and the ideological presentation of them as composing a unity. Legal history is dazzlingly and to a large extent a history of borrowings of legal materials from other legal systems, where social and economic factors have a much more limited and attenuated effect than it is normally supposed in theories of law and society. As Alan Watson has stated: law is largely autonomous operating in its own sphere. 65 The law, in fact, is largely autonomous because it is the product of a lawmaking elite, constantly in search of a legitimation, an elite which is relatively insulated from social concerns. A kind of insulation which indeed characterized dominant academic elites during the "golden age" of Italian influence over Latin American studies.
From this point of view, the theory of legal autonomy can be used as a strong critique of the existing and governing elites of lawyers, especially in Italy and Latin America. This reading of the theory can give us a picture of the law as a battleground of competing "elites" in providing legal doctrines and rules, with strategies of societal governance which remain unconscious to the same scholars who purport them for their "scientific" merit. Since the use of a "discourse", as a technical and elaborated pattern to frame the world, is a peculiarly relevant strategy of self-legitimation, and dominance, the study of how discourses evolve and become borrowed and or transplanted, especially from Italy to Latin America, is crucial to a radical analysis of the Italian Theory based as it is on "legal formants".66

3.3
Formants and Deconstructive Critique The theory of legal formants focuses on law as a social activity. A "formant" of the law is a group, a type of personnel, or a community, institutionally involved in the activity of creating law: an established legal profession, and three main types of personnel within it, as the practicing lawyer, the legal policymaker, and the legal scholar.
These professionals produce different kinds of texts: statutes, opinions, holdings, articles, treatises, briefs, summons, broad principles, narrow rules and so on. They have an archive (authorities, precedents, etc.) and a professional, tested style to manipulate the archive. These texts and documents, and the way they are produced, the way they are interlocked, the way they are re-used by others, and so on, become a key feature in the understanding of the working of the law. To cope with these documents, the formants approach adopts a new kind of form criticism, in the widest sense, as a method to uncover, separate, and explain the various materials used to produce the texts. This approach looks for differences of all kinds between and within the documents. From this standpoint what we call the meaning of a legal text is just the link, established by professionals, between a text and another document: a plea, a scholarly article, or a decision.
The law can then be deconstructed as a set of interlocked documents used by professionals according to their personal or institutional strategies. Thus the very idea of the legal tradition is to be seen as the result of an actual strategy of considering a variety of independent documents and texts competing for hegemony as interlocked in a pattern of continuity.
The formant approach is then based on a kind of "external" study of the law as a form of sociological and economic appraisal of lawyers' activities, coupled with an "internal" analysis of documents and hegemonic influences. This approach then has two major implications. First, the legal process is seen as a competitive arena of different types of elite groups. Second, there is a total refusal of the metaphysics of the unity of the law and of the "meaning" of legal propositions.
The main idea is to substitute the model of the law as a more or less consistent system of interrelated, hierarchically connected propositions, by a model of variously interrelated "formants" within the unique setting and constraints of one legal tradition.67 The major consequence of the theory, in the field of legal interpretation and legal hermeneutics, is that a precedent, a statute, and the like, have only the meaning attached to them by competing elitarian groups, placed under different institutional constraints, and with different incentive structures.
From this point of view, the theory draws a distinction between the working rules, the practices of a legal system, and the symbolic set, the discourse used by lawyers to describe, justify, and rationalize the rules, and give a meaning to texts and authorities. The distinction is indeed one pointing at the "ideology" of a legal tradition to be understood as the system of representations located 67 See also Mattei, "Three Patterns", cit. supra note 29, p. 101 ff. grande et al The Italian Review of International and Comparative Law 1 (2021) 5-28