COMPARATIVE LEGAL REASONINGMark Van Hoecke1

AbstractThe principal aim of this paper is to show how legal reasoning on both sides of the Channel is less different than it is often assumed to be. Differences are mainly to be found in the way the results of judicial reasoning are presented in judicial decisions. Although styles may be quite different, the reasoning as such is similar, if not identical. Of course, the paradigmatic framework within which one is reasoning is different (e.g; the role of (binding) precedents, the argumentative force of ‘travaux préparatoires’ or policy arguments, etc.). This will not influence the reasoning as such (i.e. a dialectical interaction of rules, facts and values), but it will have an effect on the weight of certain elements and, in some cases, on the final result of legal reasoning.

“while the syllogism sets forth the results of thinking, it has nothing to do with the operation of thinking.” (John Dewey)2

1. Mystification

People who do not know another culture tend to have a simplistic view on it, if not a caricatural one. This is also the case, on both sides, when comparing the Common Law with Continental legal systems, and most notably the French one.

It is often said that lawyers, and more specifically judges, in the Common Law world think completely differently when compared to their continental colleagues. Some lawyers have a distorted view on the other legal culture, but sometimes even on their own legal system. There is much mystification around law and a tendency to keep up appearances of continuity when changing the law. In England this is done by referring to a legal tradition “since times immemorial”3, whereas on the Continent judicial changes have mostly been presented as an application of “the will of the legislator”. Such approaches eventually make some lawyers to believe that this is not a fiction but reality. These two pictures of legal reasoning on both sides of the Channel offer a nice opposition, which unfortunately (or fortunately) is not correct. Many lawyers from within those legal systems will probably not recognise in this image their own legal system and way of reasoning in them.

1 Professor of Comparative Law, Queen Mary University of London, and Professor em. University of Ghent. With thanks to Professor Geoffrey Samuel for useful comments and suggestions on an earlier draft of this paper.2 ‘Logical Method and Law’, 10 Cornell Law Quarterly 1914-1925, 223 “Where the law is changed by a judicial decision, the traditional working assumption upon which the common law proceeds is the declaratory theory of decision-making: the judges declare law but do not make it and the law is regarded as having always been what the judicial decision stated it to be.” (Jack Beatson, ‘Has the Common Law a Future?, 56 Cambridge Law Journal, 1997, 291-314, 314, with references)

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The continental lawyer, it is said, uses purely deductive reasoning while the Common Law employs inductive reasoning. However, on both sides of the channel legal reasoning is a dialectical combination of inductive and deductive reasoning in which the result is influenced both by the existing rules and by the concrete facts of the case. It is not because a reasoning starts from facts, that it remains, as a necessary consequence, purely inductive, nor does starting from rules guarantee an exclusively deductive reasoning.

This position of incommensurability of the ways of legal reasoning in different legal cultures is typical in comparative law writings. In legal theory publications the image is the opposite. Legal reasoning is always treated as universal. True, there are diverging views on legal reasoning. Some are normative, others try to offer a true picture of actual legal reasoning. Here, we are not interested in the normative theories, only in the descriptive ones. It is remarkable that the diverging descriptive theories are never linked to diverging legal cultures, but often apply to one and the same legal culture, usually with regard to the Anglo-American one. An example may be found in the volume on Legal Reasoning II of The International Library of Essays in Law & Legal Theory. This volume was edited by two leading scholars in the field, Aulis Aarnio, a Finnish scholar (University of Helsinki), and Neil MacCormick, a Scottish lawyer educated in Scotland and at Oxford (University of Edinburgh).4 Each volume in this series “contains essays of central theoretical importance in its subject area”5. Hence, the selection of the papers included is informative. They are mainly written by authors from the Common Law world6, combined with four civil lawyers7. Although some views may partly be linked to local traditions, they all take part in one and the same discussion on legal reasoning, which was implicitly assumed to be common to all mankind, at least within the Western world. The Introduction to the book8 clearly shows that there is one common international debate and that there is no strict link between the positions taken and the legal traditions to which the authors belong.

Anthropology accepts that there is some common rationality, shared by all human cultures, which makes intercultural understanding possible.9 What is valid when comparing industrialised Western societies with the least developed non-Western cultures, is a fortiori valid for a comparison of European legal cultures. In early anthropology the ‘primitive man’ was looked at as unable to indulge abstract reasoning and that his entire thinking is pre-logical and mystical.10 From a continental point of view the English Common Law may be looked at

4 Aulis Aarnio and D.Neil MacCormick (eds.), Legal Reasoning, vol.II, Schools 5.2, The International Library of Essays in Law & Legal Theory, Aldershot: Dartmouth, 19925 Tom Campbell, Series Editor, in his Preface to the Series, at p.ix 6 US, UK and Australia7 Finland, Norway, Poland and Sweden. No French or German, nor Italian or Spanish, scholars have been included, basically because in the period before publication of this volume they (almost) never published in English and only the original papers are provided, no translations.8 P.xi-xvii9 Mihai Stelian Rusu, ‘Hermeneutics of reason: the principle of common rationality as premise of understanding the Other(s)’, Journal of Comparative Research in Anthropology and Sociology, 2013, 63-83, 65 (http://compaso.eu)10 E.g. L. Lévy-Bruhl, Primitive Mentality, London : George Allen & Unwin, 1923 ; see also M.Stelian Rusu, o.c. p.69

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in a similar way: no abstract reasoning, no strict logic11 and mystical assumptions, such as judges not creating law but only ‘finding’ the law as it has been there “since times immemorial”. However, a similar rationality is present on both sides of the Channel, be it that some English and continental lawyers have tried to keep up the image of quite diverging rationalities

All this suggests that comparative lawyers may be focusing more on a surface level of how legal argumentation is presented in judicial decisions, whereas legal theorists and legal anthropologists try to reconstruct the actual reasoning behind the surface screen of the way it is presented within a concrete legal culture or local setting.

11 Writing on legal practitioners’ attitude towards Blackstone’s Commentaries, in 18th-19th centuries, Michael Lobban notes: “Practitioners ignored or rejected the notion that the law was a set of rational rules which could be set out in a systematic way from the law of nature.” (The Common Law and English Jurisprudence 1760-1850, Oxford: Clarendon Press, 1991, 47)

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2. Reasoning in Law

Reasoning in general is mainly aimed at making choices, at taking some decision12. This is even more the case with legal reasoning. Judicial reasoning is commonly considered to be the model for legal reasoning, this being true in Continental Europe as well. Judges have to take a concrete decision. Legislators try to word general rules with the solution of an abstract series of situations and possible problems in view; academics, for their part, often use concrete cases in order to explain rules or to criticize them. In all cases a concrete decision on a real or imagined case, or series of cases, is the framework, everywhere, for legal reasoning. “Logic", said Dewey, "is ultimately an empirical and concrete discipline”13

The work of judges in the Common Law has been identified as “describe the facts presented and explain the reasons for their conclusion”14. It can hardly be denied that this applies to judges in any legal system. Furthermore, the reasons for following precedents are not different in Common Law and Continental law15. As for non-binding precedents, they are the same; that is to say there is a striving towards a uniform interpretation of the law, a respect for higher courts, and ‘team playing’. With regard to binding precedents there should be (very) strong reasons for not following the precedent, the hope being that the higher court will accept the reasons given and change its own jurisprudence. The reasons for respecting precedents in the Common Law are also comparable to the reasons for following statutory law rather strictly on the Continent.

Coherence and consistency16 of the legal system, and the place of the judicial decision in it, are important on both sides of the Channel.17 According to Eisenberg, the principles of legal reasoning in the Common Law include18:

(a) Courts should make law concerning private conduct in areas where the legislature has not acted;

(b) There is an interplay between doctrinal propositions and social propositions;(c) Legal rules can be justified by social propositions only;(d) Consistency in the Common Law depends on social propositions: two precedents are

consistent if they reach the same results on the same relevant facts. They are inconsistent if they reach different results on the same facts. What facts are relevant turns on social propositions.

12 John Dewey has analysed the way in which, for instance, mathematicians reason and the way lawyers reason (‘Logical Method and Law’, 10 Cornell Law Quarterly 1914-1925, 17-27, at 17-19)13 John Dewey, o.c., 1914 Larry Alexander & Emily Sherwin, ‘Judges as Rule Makers’ in Douglas E.Edlin (ed.), Common Law Theory, Cambridge University Press 2007, p.2815 Also noted by Larry Alexander and Emily Sherwin (‘Judges as Rule Makers’ in Common Law Theory, p.30-45)16 Eisenberg in Common Law Theory, 84ff17 John Gardner, in Common Law Theory, 6618 Eisenberg in Common Law Theory, 81-101

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In legal practice there is a tension between the ideal of social congruence and the ideal of doctrinal stability.19

To what extent is this different from the principles underlying legal reasoning in continental Europe ?

Ad (a) Courts should make law concerning private conduct in areas where the legislature has not acted

On the Continent it is nowadays generally accepted that courts can “make law concerning private conduct in areas where the legislature has not acted”. In the French tradition statutory support is found in article 4 Code Napoléon, which stipulates that a judge who refuses to decide a case under the “pretext” of the legislation being silent, unclear or incomplete, can be prosecuted for denial of justice. In the past, the use of the word ‘pretext’ has sometimes supported the view that the legislation is always clear and complete, as pretending the opposite would only be a ‘pretext’. Today, this provision is interpreted as a duty for the judge to decide a case whenever the law is unclear or silent.20 Article 1 of the Swiss Civil Code of 1907 is more explicit on this point, as it invites the judge to act as if (s)he were a legislator when confronted with gaps in the law21.

In Germany, the judges’ duty to develop the law is clearly acknowledged in legislation (BVerfGG §31) as well as in the decisions of the Bundesverfassungsgericht).22 Limits to a possible abuse of power by judges are mainly guaranteed by the public debate in legal scholarship:

“When the courts are developing the law, they follow the fundamental principle of the statute in question and thus seek ideally to maintain consistency with the law and its underlying principles. In so doing they have the support of scholars whose writings they regularly cite and discuss. This lively debate and reciprocal interplay between courts and writers can inhibit toward developments and provide the best assurance of proper progress.”23

Ad (b) There is an interplay between doctrinal propositions and social propositions

One can hardly deny that also on the Continent there is an interplay between doctrinal propositions and social propositions. In the past, and even today, this may be somewhat more hidden in Continental Europe than in Britain, but social changes will inevitably influence doctrinal views. Often it is a court which is faced for the first time with a tension between social reality and doctrinal theory. In some cases judges may still strictly follow the traditional

19 Eisenberg in Common Law Theory, 8620 Walter van Gerven, Algemeen Deel, in the Series edited by R.Dillemans & W.van Gerven Beginselen van Belgisch Privaatrecht, Antwerp: Standaard Wetenschappelijke Uitgeverij, 1969, 24-3021 « A défaut d'une disposition légale applicable, le juge prononce selon le droit coutumier et, à défaut d'une coutume, selon les règles qu'il établirait s'il avait à faire acte de législateur. »22 As already stated in 1982 by Norbert Horn, Hein Kötz and Hans G.Leser in German Private and Commercial Law (translation Tony Weir), Oxford: Clarendon Press 1982, at p.63.23 Horn, Kötz & Leser, o.c., 64

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views, in other cases they will adapt them but still present the decision as following legislation and prevailing legal doctrine. Rather exceptionally (depending on the local legal culture) the tension will be openly acknowledged and the law will be re-interpreted in view of the changed social reality (changed circumstances or changed view in society). A good example is the Marckx decision of 13 June 1979 of the European Court of Human Rights. In this decision the Court considered the unequal treatment of ‘legitimate’ and ‘illegitimate’ children as incompatible with articles 8 and 14 of the European Convention on Human Rights. The Court admitted that

“at the time when the Convention of 4 November 1950 was drafted, it was regarded as permissible and normal in many European countries to draw a distinction in this area between the ‘illegitimate’ and the ‘legitimate’ family. However, the Court recalls that this Convention must be interpreted in the light of present-day conditions.”24

Ad (c) Legal rules can be justified by social propositions only

Politically, legal rules can indeed be justified by social propositions only. Legislation, by definition, relies on them. In legal theory, however, legal positivism, mainly in its Kelsenian version, has tried to justify legal rules by legal propositions only. This positivist approach has not been without influence on the way continental judges have given reasons for their decisions. This is even more true in a context where the justification of legal rules by social propositions was completely left to the legislator. However, the examples given further, in chapter 3.2, show that this positivist stance did not prevent courts to use social propositions for changing the law, and sometimes dramatically.

Ad (d) Consistency in the Common Law depends on social propositions

Even if precedents, and most notably binding ones, do not play the same role on both sides of the Channel, continental lawyers will easily agree that “two precedents are consistent if they reach the same results on the same relevant facts”. Consistency and coherence are important elements in legal reasoning25. Indeed, judicial decisions have to fit into the legal system. They have to stay within the limits of the paradigmatic framework of the legal system and legal culture. Judges have to follow the currently valid rules and precedents. If that would lead to undesirable results they may decide otherwise by interpreting the rules in view of the specific facts of the case, or distinguishing the case from precedents in apparently similar cases. Such interpretation and distinguishing keep the legal system coherent. They allow a court to decide in a way which otherwise would make the decision inconsistent with the legal system. Yet reasons have to be given why the decision is still compatible with the system and this is true for any legal system, including the English and continental ones.

24 19 International Legal Materials 1980,109-132, at 12125 See, e.g.: Neil MacCormick, Legal Reasoning and Legal Theory, Oxford: Clarendon Press, 1978, 106-107; see also: Ronald Dworkin, Taking Rights Seriously, London: Gerald Duckworth, 1977, 160-163

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3. Deductive vs Inductive Reasoning

3.1 Common Law Reasoning

In the Common Law, reasoning is said to be inductive: from the facts to the law. Judicial decisions are considered to be based on the facts of the case rather than on pre-existing rules or principles.26 The law is judge made; there are no general rules, let alone a code, imposed by parliament that would force judges towards a certain decision. Indeed, the history of the Common Law shows that it was

“in essence a system of adjudication, which drew its substantive notions from below through cases presented to courts.”27

Only precedents are binding. If the precedent is identical to the case at hand, that previous decision of a higher court has to be followed. In all other cases the judge is free to decide on the basis of the specific facts of the current case. By the technique of ‘distinguishing’ even slightly different cases can be considered not to fall under a binding precedent28. As the facts of different cases are never completely identical, in all aspects, the common law permits much flexibility with regard to the judge.

Common Law thinking is also practical: there is an absence of abstract reasoning. Let the facts speak for them. In the common law, it is argued, the decision “arises from the facts, not from rules”. However, facts do not lead to any normative conclusion, unless they are combined with rules. It is true that common law judges often present their decision in this way, but this simply means that the applied rules and principles are hidden, not that they are absent.

In White v Jones, for instance, the House of Lords decided that a solicitor is liable for the loss of a legacy towards the daughters of his client, because he did not draw up a new will in time, after his client had asked him to do so.29 It are not the sheer facts of the case which offered this result. If the solicitor has done nothing during six weeks, this can only be considered to be a negligent behaviour if one assumes a rule, according to which the solicitor should have drafted a new will earlier. As stated by Lord Goff in this case: “As a general rule ... there is no liability in tortious negligence for an omission, unless the defendant is under some pre-26 A very strong position in that sense is to be found in the Australian High Court, which declared that top-down legal reasoning is illegitimate in private law judicial decision-making and that it is diametrically opposed to traditional common law technique: “general principle is derived from judicial decisions upon particular instances, not the other way around.” (Gummow J in Roxborough v Rothmans of Pall Mall(Australia) Ltd (2001) HCA 68, at 72 See also Carmine Conte ‘From Only the ‘Bottom-up’? Legitimate Forms of Judicial Reasoning in Private Law’ 35 Oxford Journal of Legal Studies 2015, 1-3027 Michael Lobban, The Common Law and English Jurisprudence 1760-1850, Oxford: Clarendon Press 1991, 6728 An elaborate analysis of possible, acceptable and non acceptable distinctions in contractual liability is to be found in Farley v Skinner, House of Lords 11 October 2001, (2001) UKHL 49. See, most notably Lord Steyn’s criticism of a distinction made by the Court of Appeal between contractual guarantees and obligations of reasonable care. For19th century, see: M.Lobban, o.c., 86-8729 White v Jones 2 AC, 1995, 207-295, at 256-258

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existing duty.” Once this negligence is concluded, the question arises whether the solicitor is liable towards the daughters of his client. The Law Lords turn again from the facts to the rules. Some of the mentioned rules are: (1) “the general rule that a solicitor acting on behalf of a client owes a duty of care only to his client”, (2) “a plaintiff is entitled to damages if, and only if, he can establish a breach of contract by the defendant”, (3) “as a general rule, apart from .., no action will lie in respect of purely financial loss in the tort of negligence”. However if these rules were to be applied to the facts, the action should have been dismissed, the two daughters receiving nothing. But the judges looked for another rule, a rule of justice, which says that it would be unjust to dismiss the daughters’ action. Starting from this moral rule the legal rules were being reinterpreted with the result that the judges concluded that there was, surprisingly, a “lacuna in the law” that "needs to be filled” (again a rule). And this was achieved “by holding that the assumption of responsibility by the solicitors towards his client should be held in law to extend to the intended beneficiary who (as the solicitor can reasonably foresee) may, as a result of the solicitor’s negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor.” Here, a rule is construed by the House of Lords, for filling of a construed gap.This example shows clearly how the reasoning is moving constantly from facts to rules and vice versa, and even from established legal rules to moral values and rules of justice. It is, moreover, a very striking example of judge made law, which goes far beyond “concluding a regularity” or “finding the law, which was there since times immemorial”.

Indeed, in Common Law rules and principles are present too in judicial reasoning, be it less visibly.As statutory law has been increasing considerably in the UK in the course of the last few decades30, deductive reasoning, comparable to what may be found on the Continent, is also present here:

“By way of example, in English law, section 108 of the Housing Grants, Construction and Regeneration Act 1996 contains a general rule of law (the major premise) that a party to a construction contract is entitled is entitled to refer a dispute under the contract to adjudication. Therefore, where a particular disputes arises in a particular construction contract between a particular employer and a particular contractor (the minor premise) we can conclude, as a matter of deductive logic, that either party is entitled to refer that dispute to adjudication (conclusion).”31

Also on the Continent there is much more legislation outside the Codes than in the Codes, but the codes contain some basic principles, which in England still are to be found in Common Law case law. Behind the codes there is a strong presumption of coherence and completeness, which is much less present in the Common Law. This may affect the interpretation of statutes to some extent, but in terms of inductive and deductive reasoning the situation should be comparable, when it comes to applying legislation.

30 See the examples given by Jack Beatson, as early as in 1997, in ‘Has the Common Law a Future?, 56 Cambridge Law Journal, 1997, 291-314, at 300-30131 Paul Chynoweth, ‘Legal Research’ in A.Knight & L.Ruddock (eds) Advanced Research Methods in the Built Environment,, Oxford: Wiley-Blackwell 2008, 28-38, at 32

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According to David Sugarman the common law frame of mind

“assumes that although law may appear to be irrational, chaotic and particularistic, if one digs deep enough and knows what one is looking for, then it will soon become evident that law is an internally coherent and unified body of rules. This coherence and unity stems from the fact that law is grounded in, and logically derived from, a handful of general principles;”32

And he continued:

“The exposition and systematization of these general principles, and the techniques to find and to apply them and the rules that they underpin, are largely what legal education and scholarship are all about.”33

Thus legal principles have to be ‘found’ or ‘reconstructed’ in legal scholarship, as, in the Common Law, they are mostly not to be found in the written law as such.

Of course, one has to clarify what is meant by ‘principle’ in this context. Brian Simpson uses the term ‘general theoretical propositions of the common law’, which can take a variety of forms, such as ‘doctrines’, ‘principles’, ‘general principles, ‘rules’, ‘definitions’ and others.34 Even a precedent might be treated as a warrant for a statement of principle.35 Some of these general propositions may be found in judicial decisions, some in statutory law, some in scholarly legal writings. Some may have an unclear origin but belong to the core principles of the common law, such as the doctrine of offer and acceptance. As in the English tradition legal scholarship has for a long time mostly been the work of prominent judges, it is difficult to draw a line between both ‘sources’. Anyway, legal scholarship, whoever is practising it, aims at structuring the unstructured materials and at reducing its complexity by wording general concepts, rules, principles, definitions, doctrines and the like. Because of a lack of professional full time legal scholars, investing the bulk of their time in research, in England until recently, the development of such general theoretical propositions in legal doctrine is, until now, less developed than on the Continent.36

In Continental Europe legal scholarship developed as from the eleventh century (with the founding of the University of Bologna) and culminated in the nineteenth century codes. However, the proliferation of legislation outside the codes, the increased importance of case law, and other factors, have created, in the course of twentieth century, a renewed need for general principles, adjoining the ones included in the codes. Remarkably, this has been mainly the work of judges, rather than of scholars. It started in France, in administrative law, where

32 David Sugerman, ‘Legal Theory, the Common Law Mind and the Making of the Textbook Tradition’ in W.Twining (ed.) Legal Theory and Common Law, Oxford: Basil Blackwell 1986, 26-61, at 2633 O.c., l.c.34 Brian Simpson, ‘The Common Law and Legal Theory’ in W.Twining (ed.), Oxford: Basil Blackwell 1986, 8-25, at 935 R.B.Ferguson,’The Horwitz Thesis and Common Law Discourse in England’ 3 Oxford Journal of Legal Studies, 1983, 34-58, at 4536 This is not true for legal theory. In this field Anglo-American writings are rather dominating the international debate.

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after the Second World War hardly any regulation existed in the area of administrative law. Rather than creating their own rules, judges tried to derive some general principle from the available materials, which then they could apply to the case.37 For example, the principle of the continuity of public services could be derived from the functions of the State and then be used to declare valid a decision by an official whose nomination had meanwhile been annulled. Whereas the wording of such principles had first been introduced by administrative courts in France to fill gaps in the law, it soon spread to all areas of law and to many other countries. Not only gaps in the law, but also an abundance of rules around the same issue creates a need for a general principle, which may reduce the complexity of the law. Anyway, continental case law has, on this point, come closer to the judicial tradition of the Common Law.

In the Common Law, on the other hand, and notwithstanding the sometimes cultivated appearance of the opposite, general rules, principles and doctrines are regularly worded by courts (be it mostly by defining the exact scope of an existing rule, principle or doctrine)38, by scholars and by legislators. From that point of view, lawyers do not reason differently in England compared to the Continent. Lord Reid has even emphasised the function of judges to enunciate general principles, not to lay down “hard and fast rules”.39

A typical example, also showing the intertwinement of inductive and deductive reasoning, is to be found in the opinion by Lord Diplock in Home Office v Dorset Yacht Co Ltd:

“The method adopted at this stage of the process is analytical and inductive. It starts with an analysis of the characteristics of the conduct and relationship involved in each of the decided cases. But the analyst must know what he is looking for; and this involves his approaching his analysis with some general conception of conduct and relationships which ought to give rise to a duty of care. This analysis leads to a proposition which can be stated in the form: ‘in all decisions that have been analysed a duty of care has been held to exist wherever the conduct and the relationship possessed each of the characteristics A, B, C, D etc., and has not so far been found to exist when any of these characteristics were absent.’ For the second stage, which is deductive and analytical, that proposition is converted to: ‘in all cases where the conduct and relationship possess each of the characteristics A, B, C, D etc., a duty of care arises.”40

Actually, the first question is, inductively, which rules may apply to the facts of the case, and the second one, deductively, to what extent do the rules invoked by the claimant apply to the facts?For example, in the Transco case the claimant suffered damage from the collapse of an embankment owned by the local authority and on which the claimant had an easement of support for a gas main. He claimed in court that the authority was strictly liable for non-

37 In the Aramu decision of 26 October 1945, the French Conseil d’Etat worded the general principle of the right to defense and annulled on that basis a disciplinary sanction imposed on a public officer (see further fn 51)38 See, e.g., the case law related to the English sale of goods law, quoted by Ferguson, o.c. (fn 63), 43-45 and the example above of White v Jones39 In Broome v Cassell & Co Ltd (1972) AC 1027, at 108540 House of Lords, (1970) AC 1004

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natural user of land under the rule in Rylands v Fletcher. The first judge considered that this rule applied to the facts, but the Court of Appeal and the House of Lords defined the scope of the rule differently so that it didn’t apply to the facts in the Transco case:

“irrespective of whether the claimant’s easement of support was a sufficient propriety interest to enable it to recover damages under Rylands v Fletcher, the facts upon which the claimant relied fell outside the ambit of rule.”41

Different interpretations42 of the rule lead, deductively, to divergent decisions. In the Transco decision the exact scope of the rule is extensively worded, adding

“The subsequent complications and misunderstandings have arisen, not from the original rule and its rationale, but from additional criteria, often inappropriately expressed, introduced in later cases.”43

This means that these ‘later cases’ have worded a new rule, in the sense or rewording the rule of Rylands v Fletcher, which the House of Lords is now rewording again, claiming that this has always been the meaning of the rule “from the time of its birth in 1866-1868 (…) when it was seen as being no more than a statement of the existing law and not an innovation at all”44

41 Transco Plc v Stockport Metropolitan Borough Council House of Lords 19 November 2003, (2004) 2 AC 142 In the same decision Lord Hobhouse of Woodborough noted that the rule in Rylands v Fletcher “has been attacked as obsolete, unworkable or, more simply, as not being a rule at all. It has been rejected as ‘heresy’ in Scotland … It is, for example, no longer used in Australia, having been subsumed into the general law of negligence.” (paragraph 51)43 Para 5444 Para 51

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3.2 Continental Reasoning

The continental lawyer, on the other side, is presumed to reason from provisions in a Code which he applies to facts. Facts are presumed to come into play only at the end of the legal reasoning, when the applicable rules are deductively applied to the facts. In practice, however, the facts often play an important role, both in the choice and in the interpretation of the rules which will be considered to apply to them45. Nowadays this is generally accepted in continental legal theory.46A Code is a coherent and presumably complete set of rules governing a large area of the law, such as commercial law. So the answer to the legal problem would be assumed to be found in the Code. The role of the judge is seen as confined to finding the applicable provisions, at the most complemented with some interpretation, without any moral or other policy reasoning influencing the judicial decision. One often refers to the famous quote by Montesquieu “the judge should merely be the mouthpiece of the legislator”, his master’s voice. Hence, it is argued, there is no active role for continental judges, and continental legal systems are not flexible as Code provisions have to be applied blindly.This goes together with a more abstract approach on the Continent, when compared to the Common Law. Indeed, continental legal doctrine, both in Germany and in France, which prepared the codes, has developed towards a more systemic approach, which implies more abstract concepts and general rules and principles. It is also true that, in 19th century, part of German legal doctrine turned into a caricature of abstract legal thinking by playing with legal concepts like an algebra and applying the ‘mathematical’ results blindly to whatever facts. This has been called ‘Begriffsjurisprudenz’, ‘Concepts theory of law’ or conceptualism47. However, this has just been one theory among many others, during a limited period of time in just one part of Europe48. Legal practice has always been quite different, everywhere on the Continent. Moreover on the Continent it has been argued, by prominent legal scholars, that judges reason more inductively than deductively.49

3.2.1 Law Outside Codes

Not all Continental countries have codes, such as for instance the Nordic countries, and in codified legal systems only part of the law is codified. A typical example is administrative law. Already in 1887 a French scholar could write that it is doubtful whether a codification of administrative law would even be possible:

45 See eg Théodore Ivainer, L’interprétation des faits en droit, Paris : LGDJ, 1988. He discussses, for example, the influence of new technologies when interpreting an Act (p.277-278)46 See, e.g., Aulis Aarnio, Robert Alexy & Aleksander Peczenik, ‘The Foundation of Legal Reasoning’, 10 Rechtstheorie, 1981, 133-15847 On Conceptualism, see James Gordley, The Jurists. A Critical History, Oxford: University Press, 2013, 212-21548 Gordley notes a remarkable similarity among nineteenth-century French, German and Anglo-American jurists (o.c., 222).49 Walter van Gerven & Steven Lierman, Algemeen Deel in the Series edited by R.Dillemans & W.van Gerven, Beginselen van Belgisch Privaatrecht, 2nd ed. (actually a completely different book, on different topics, compared to the first edition in 1969), Mechelen: Kluwer, 2010, 262-263, with references.

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« Le droit civil, commercial, criminel est codifié; le droit administratif ne l’est pas, et il est douteux qu’il puisse l’être… La jurisprudence est ici la véritable source de la doctrine, parce qu’elle seule peut dégager les principes permanents des dispositions contingentes dans lesquelles ils sont enveloppés, établir une hiérarchie entre les textes, remédier à leur silence, à leur obscurité et leur insuffisance en ayant recours aux principes généraux du droit ou à l’équité. »50

This could perfectly have been written by a common lawyer, with the exception of the first part of the first sentence.

Also for the codified parts of the law Continental lawyers know that legislation outside the codes has become much more important than the provisions in the code, at least in quantitative terms. Moreover, the importance of judge made law next to, and even against, the literal terms of legislation has increasingly been accepted, sometimes more openly (most notably in The Netherlands as from the 1970’s), sometimes hidden behind the façade of strictly applying legislation. In areas which are politically less interesting, legislation often has, for a long time, not been adapted to changed circumstances or views in society. However, judges did so, mostly through a broad interpretation of statutory provisions, but also through the creation of so-called ‘unwritten general principles of law’, which they then used to fill gaps in the legislation or even to ‘correct’ a strict application of statutory law.51

3.2.2 Some cases

A. Male adultery

An example of changing the law through a broad interpretation can be found in the Belgian case law as to male adultery. The Code Napoleon, which remained valid in Belgium after its independence in 1830, distinguished between male and female adultery as a reason for divorce. If a wife had committed one act of adultery, this sufficed both for the man to ask for divorce and for the wife to be guilty of a crime (art.389 Belgian Penal Code between 1867 and 1974). However this situation did not apply to the male adulterer. Those who voted for the Code Napoleon, all wealthy male persons, 'understood' the sexual needs of men. So it was considered to be acceptable for a married man to have one (or more) lovers and even renting a flat for them, where the man could meet his mistress, and maintaining them did not raise any objection. Nevertheless it would be a step too far for the married man to keep and maintain his lover in his home, under the nose of his wife. Hence, in such cases, the wife could ask for a divorce (art.230 Cc)52 and the man could be punished by a criminal court (art.389 Belgian 50 Edouard Laferrière, Traité de la juridiction administrative, VII, quoted by B.Janneau, Les principes généraux du droit, Paris : Sirey, 1954, 251 It started in France in 1945, with the Aramu decision of the Conseil d’Etat in a case of administrative law (26 October 1945, to be found in: : M.Long, P.Weil, & G.Braibant, Les grands arrêts de la jurisprudence administrative, Paris: Dalloz, 1969, 260; for other and more recent decisions, see: M.Long, P.Weil, G.Braibant, P.Devolvé & B.Genevois, Les grands arrêts de la jurisprudence administrative, 18th ed., Paris: Dalloz, 2011, 344-349; 415-421; 874-887). It spread over all other jurisdictions, including the Cour de cassation, and later on to several other continental legal systems.52 This seems to have been a compromise between an equal treatment of husband and wife on the one hand and completely liberty for the husband, on the other (see the discussions in the Conseil d’Etat as reported in Jean

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Penal Code between 1867 and 1974). As for suing in divorce, it sufficed for a man to prove one single adultery act on behalf of his wife, but the wife, in order to obtain a divorce, had to prove that her husband was “maintaining his concubine in the home of the spouses”.

This provision did not change in Belgium until 1974. Yet, from the middle of 19th century, judges interpreted the article of the Civil code in such a way that divorce could be obtained almost as easily by women as men. Only the concept of ‘concubine’ left some difference. One act of sexual intercourse was not enough to make a women one’s concubine53, but several (a few) did suffice for the judges. ‘Maintaining’ seems to imply a substantial financial effort by the man, but for courts just giving a gift sufficed for considering a man to ‘maintain’ his girlfriend. Moreover maintaining one’s girlfriend in “the home of the spouses” did not prevent judges from applying it to whatever place where the husband met his girlfriend, including a second residence, a hotel room54, a tent, a caravan55, a flat owned or rented by the woman56, etc. As the wife is entitled to follow her husband wherever he goes, the courts reasoned, any place where the man finds himself should be considered at that time to be “the home of the spouses”57. So, through a very broad interpretation which obviously conflicted with the intention of the authors of the Code Napoleon, judges adapted this provision in accordance with changed views on moral duties of spouses and equal treatment of husband and wife. The Belgian legislator never reacted to this jurisprudence of the courts. Precisely because judges had almost completely emptied that discrimination between husbands and wives there was no pressing need to change the Code on this point. Finally, the legislator abolished the different treatment of men and women as late as in 1974. Indeed, today, sexual intercourse outside marriage is no longer a reason for divorce; it suffices to obtain a divorce that one of the spouses no longer wishes to live with the other one, whatever the reasons for that may be.

B. Abuse of rights

The most striking of the unwritten principles developed by courts on the Continent is the prohibition of ‘abuse of right’. Rights which follow from a strict application of legislation are denied to the unreasonable right holder on moral grounds. This is a typical example of natural law reasoning within an otherwise dominant positivistic thinking among continental lawyers.58

Guillaume Locré de Roissy, Législation civile, commerciale et criminelle ou Commentaire et complément des codes français , vol.II, Brussels: Tarlier, 193653 Although even on this point exceptions can be found in case law (see e.g. a decision of the Brussels Civil Court of 11 August 1860, Belgique Judiciaire 1861, 55)54 Dinant Court 14 May 1962, Jurisprudence de Liège 1962-63, 10; Brussels Court of Appeal 17 May 1967, Journal des Tribunaux 1968, 65055 Bruges Penal Court 21 October 1969, Rechtskundig Weekblad 1969-70, 632-63456 Court of Cassation 20 April 1959, Pasicrisie 1959, I, 829-83057 “En matière d’adultère, on entend par maison conjugale, non seulement le domicile du mari, mais encore la residence que le mari aurait en dehors de son principal établissement et dans laquelle sa femme aurait le droit ou l’obligation d’habiter.” (Brussels Court of appeal 16 June 1875, Pasicrisie 1875, II, 337)58 In his book The Jurists (OUP 2013) James Gordley devotes a chapter to this ‘super-doctrine’ under the heading ‘The appeal to social purpose: abus de droit‘ (pp 292-296), offering a historical analysis of its birth.

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For example in France there have been some extreme cases of conflicts between neighbours. In one case, which has been decided in 1855, the owner of a house built an enormous fake chimney just to annoy his neighbour (with its shadow) and without it being of any other use for the owner. The court of Colmar ought in principle to have accepted this on the basis of the very broad wording of property rights in article 544 of the Civil code: they are defined as the rights to use, to enjoy and to take profit of one’s property “in the most absolute way”. Nevertheless, the court considered the building of this chimney an ‘abuse’ of his property rights and, hence, ordered the pulling down of that fake chimney59. One year later the Lyon Court of appeal decided in the same way against someone who had blocked up a water source on his land which took away the water from neighbouring sources but which was of no use to the landowner who simply let the water flow into a river60. Subsequently, the prohibition of abuse of rights was extended to cases where the proprietor had a genuine interest in what he did, but where he could have acted in another way that would have caused less damage to others.61

These cases are excellent examples of ‘facts creating law’. When, deductively, a strict application of legislative rules leads to an undesirable result (on moral grounds) an inductive reasoning leads from the facts and the moral rules to new legal rules. A typically Common Law reasoning on the Continent. This doesn’t mean that the Common Law would accept a concept like ‘abuse of right’. Rather not: if it is a lawful act one has the right to do it, however ill the motive might be62. However, a similar result may be achieved through the concept of ‘unreasonable behaviour’.63

In the case Ruxley Electronics v Forsyth a swimming pool had been built six foot nine inches deep, whereas according to the contract it had to be seven foot six inches. The Court of Appeal decided that a new swimming pool had to be built in conformity to the contract. The House of Lords, however, following the trial judge just awarded a modest financial compensation (£2,500), on the basis of the following reasoning:

“the respondent has acquired a perfectly serviceable swimming pool, albeit one lacking the specified depth. His loss is thus not the lack of a useable pool with consequent need to construct a new one. Indeed were he to receive the cost of building a new one and retain the existing one he would have recovered not compensation for loss but a very substantial gratuitous benefit, something which damages are not intended to provide.”64

On the Continent the reasoning in such a case would have been that the size of the damage is disproportionate compared to the cost of building a new swimming pool. Hence, the claim for a new pool would be considered an ‘abuse of right’ and the claimant should be happy with more limited damages, compensating his loss. The result would have been the same.

59 Colmar Court of appeal 2 May 1855, Dalloz Périodique 1856, 2, 960 Lyon Court of appeal 18 April 1856, Dalloz Périodique 1856, 2, 19961 Civil court Draguignan 17 May 1910, Dalloz Périodique 1911, 2, 13362 House of Lords, Bradford Corporation v Pickles (1895) AC 58763 See e.g. Ruxley Electronics Ltd v Forsyth, House of Lords 29 June 1995 (1996) 1 AC 344; Hollywood Silver Fox Farm v Emmett (1936) 2 KB 46864 (1996) 1 AC 344 by Lord Jauncey

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It should be noted that some continental judges would rather follow the Court of Appeal on the basis of the principle pacta sunt servanda, especially as they might consider that the less deep swimming pool was not fully useable for the claimant, who was very tall. The comment by Lord Jaucey above that a new swimming pool would be “a very substantial gratuitous benefit” is awkward. If it replaces the badly constructed pool, there is no benefit at all. If a new pool would be built next to the previous one, it is hard to see any benefit in this case. A second pool takes extra land and requires a lot of extra expenses for maintenance. The first pool is still too deep to be used for small children and adults can swim in one pool only at the same time. There may still be good reasons to award damages instead of a new pool, but the reasoning of Lord Jaucey doesn’t hold.

C. Cohabitants as Sureties

Mainly in the eighties and nineties of last century there was quite divergent case law in Germany as to cohabitants standing as securities for the debts of the other and often not being well aware of the risks of such an undertakingSome courts have argued, in accordance with a pure doctrinal point of view, that there was a valid contract, as the cohabitant being adult was presumed to know what she signed. Other judges considered this to be an unacceptable outcome and looked for ways to reach a more equitable decision. A similar opposition is to be found in England in the same period.In both legal cultures one notes a deductive reasoning from the valid rules and principles by those accepting the validity of the contract, whereas those courts that want to escape that result try, inductively, to find or construct other theories by which the surety contract could be declared invalid.

In three similar cases in Germany the lowest courts (Landgerichte) and the highest court (Bundesgerichtshof) followed the doctrinal view: the autonomy of the citizen to enter into a contract (Privatautonomie), laid down in the German Constitution (art.2 §1), and the principle of the binding force of obligations, as laid down in the Civil Code (§242).65 However, the three courts of appeal in these cases (Oberlandesgerichte) and the German Constitutional Court (Bundesverfassungsgericht) decided in an opposite way, through a completely different interpretation of the Privatautonomie principle. According to the Constitutional Court this principle imposes a duty on the courts to check the contents of the contract, when it lays an unusually heavy burden on one of the contracting parties and when it is the result of structurally unequal power positions.66

In England, in a similar case Barclays Bank plc v O’Brien, the county court took a position similar to the decision of the German Bundesgerichtshof above. The court accepted that the wife, standing as a security, had been misled by her husband, but the bank could not be liable for that. Thus the contract she entered into with the bank was held to be valid.67

65 Bundesgerichtshof 9th civil chamber (Zivilsenat) 19 Jan.1989 (1989) 106 Entscheidungen des Bundesgerichtshof in Zivilsachen; 28 Feb.1989 (1990) 107 Entscheidungen des Bundesgerichtshof in Zivilsachen, 92; 16 March 1989 (1989) Zeitschrift für Wirtschaftsrecht, 62666 BVerfG 19 Oct. 1993 (1994) 89 Entscheidungen des Bundesverfassungsgerichts 214, 23467 Referred to in the decision of the Court of Appeal, (1992) 4 All.ER, 983

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The Court of Appeal didn’t like this result and constructed a special equity theory, based on a 1992 decision, Turnbull v Duval:

“If a wife signs a security document at her debtor husband’s request the creditor will be unable to enforce the security unless either the debtor or the creditor has taken positive steps to try and ensure that the wife understands the import of the security documents or unless she has obtained independent advice.”68

The case was taken to the House of Lords, which considered that Turnbull v Duval could not be used as a precedent for the case under consideration. However, according to the supreme court, it did not seem necessary to construct such a special equity theory. The same result could be reached through the concept of ‘undue influence’ and the doctrine of notice. The Law Lords argued that in a relationship based on confidence, such as between wife and husband, there is a presumed undue influence. This moves the burden of proof to the ‘stronger party’, who has to show evidence that there was no undue influence. The bank was made liable on the basis of the doctrine of notice. The House of Lords considered it the duty of the creditor to enquire and to inform the cohabitant: the creditor has to take

“reasonable steps to satisfy himself that the surety entered into the obligation freely and in knowledge of the true facts” and to “warn the surety (at a meeting not attended by the principal debtor) of the amount of her potential liability and of the risks involved and advise the surety to take independent legal advice.”69

Again, as in the decision of the German Constitutional Court, this amounts to substantive, not just formal autonomy.

In both legal systems a deductive reasoning from precedents or statutes in their common acceptance leads to some harsh result, which for part of the judges is a cause to reason inductively: which result would be fair and how may we reach it with legal concepts, principles and possible interpretations that fit with our legal system?It is interesting to note that the opposition is not between the German legal system and the English legal system, but within each of those systems: the difference in reasoning is linked to the personality of the more formally oriented judges, having a feeling to be bound by rules, to be interpreted narrowly, however harsh the result may be, as opposed to more functionally oriented, more flexible, judges, who feel free to interpret and use concepts, rules and principles more creatively. Of course, the legal and dogmatic framework is different and the judges have to reason with quite divergent legal materials and doctrines, but the underlying reasoning is comparable on both sides, in both legal systems.

The same problem has arisen in other countries too. In France, in 2016, it has led to a new article 1143 in the Civil Code:

68 Scott LJ in Barclays Bank plc v O’Brien 4 All ER 983, 993e69 Lord Browne-Wilkinson in Barclays Bank plc v O’Brien, (1993) pp.431j-432a

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“There is also duress where one contracting party exploits the other’s state of dependence and obtains an undertaking to which the latter would not have agreed in the absence of such constraint, and gains from it a manifestly excessive advantage.”

Of course, also under the new provision case law in France may diverge considerably. More ‘liberal’ judges may refrain from applying article 1143, considering that there is no ‘exploitation’ of someone’s dependency, or no ‘dependence’, or no ‘manifestly excessive advantage’, whereas more ‘socially oriented’ judges may be happy to use that provision for protecting weaker parties against economically strong organisations such as banks.Birke Häcker notes that German courts have been reluctant to use a somewhat similar provision in §138 BGB70 outside a three-party scenario of a bank extending credit to a customer on the basis of a personal guarantee provided by a close family member. The far reaching consequences, most notably that the contract will be completely void, has probably influenced this reluctance.71

The German Supreme Court considered, for instance that economic benefits are conspicuously disproportionate to the performance when the wife is even not able to pay, from her own means, the interests on the debt.72

D. Vague concepts

Because legislators have been increasingly aware of the fact that not everything can be regulated in advance by way of general rules, continental legal systems have introduced vague concepts, such as ‘interest of the child’, ‘good faith’, ‘equitable’, ‘reasonable’73. These concepts should allow courts to decide in an appropriate way on the basis of the concrete facts of the case. In fact, this ad hoc wording is a deliberate delegation by a legislator to judges which results in a typical 'Common Law' position for the courts. It allows the facts ‘to speak’ and the judge to decide each case on the merits of the specific facts. Interestingly enough, also for the English Common Law, Patrick Atiyah noted, in the context of the relationship between Common Law and statute law:

70 “any legal transaction is void by which a person, through exploiting another’s predicament, inexperience, lack of judgement or considerable weakness of will, causes economic benefits to be promised or granted to himself or a third party in return for a performance, if these economic benefits are conspicuously disproportionate to the performance.”71 Birke Häcker, ‘A German Lawyer Looks at the Reform’ in: J.Cartwright & S.Whittaker (eds) The Code Napoleon Rewritten, Oxford, Hart: 2017, 387-407, at 40472 “Wie der erkennende Senat bereits in seinem Vorlagebeschluss an den Großen Senat vom 29. 6. 1999 (NJW 1999, 2584 = LM H. 11/1999 § 765 BGB Nr. 138a = WM 1999, 1556 [1559]) näher dargelegt hat, ist eine krasse finanzielle Überforderung des mitverpflichteten Ehepartners oder nahen Angehörigen bei nicht ganz geringfügigen Bankschulden grundsätzlich dann zu bejahen, wenn er voraussichtlich nicht einmal in der Lage ist, die laufenden Zinsen mit seinen eigenen finanziellen Mitteln auf Dauer aufzubringen.” (BundesGerichtsHof, 14. 11. 2000 - XI ZR 248/99 (Stuttgart) NJW 2001, 815). The court of first instance (Landgericht) had considered the contract to be valid, whereas the Oberlandesgericht decided in the same sense as the Supreme Court.73 Especially the Dutch Civil Code of 1992 used such vague concepts, most notably the power conferred to the judge to decide ‘naar billijkheid en redelijkheid’ (according to equity and reasonableness) in all cases where a strict interpretation of the statute or the contract would lead to unreasonable or unequitable results. (book 2, art.8; book 6, art.2 and art.248 Burgerlijk Wetboek)

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“There are, first, statutes which have deliberately adopted a very open-textured type of language, and thereby delegated to the courts the responsibility for creative development of case law.”74

Examples of “exceptionally wide discretions” given by Atiyah, in 1978, include, in the law of contract, frustration, misrepresentation, exemption clauses, and consumer credit contracts. The law of torts rests heavily upon reasonableness as a standard of conduct, and “the modern law of matrimonial property illustrates best the extraordinary lengths to which discretion has replaced rule.”75

It may, then, be a little surprising that the concept of ‘good faith’ in European consumer law has been considered a ‘legal irritant’ to the English Common Law76. It is true that, at first sight, general legal rules and principles, such as the good faith principle, seem to be opposed to the more concrete approach in English law -- concrete and precise rules in statutes and contracts, and case by case approach by courts. However, general principles and vague concepts do in fact facilitate such a case by case approach, as the examples above show. Nevertheless, it is true that before case law is well established around a vague concept there is a period of uncertainty concerning exact rights and duties to be derived from it, be it that a strict wording of them may also create false certainties which may not be followed by courts.Anyway, English judges have always been reluctant – and probably still are – to accept a general principle of good faith:

“the general antipathy of English judges to the idea of a general ‘overarching legal principle’ or even implied term requiring good faith in the contracting parties also reflects a concern that this would undermine the force of express terms, whether negotiated or not.”77

Shortly after the enactment of the EC Directive on Unfair Terms in Consumer Contracts Jack Beatson commented on its implementing in UK law:

“It uses concepts unfamiliar to the English common law, in particular that of good faith. These are concepts which English commentators find it difficult to come to terms with.”78

74 Patrick S. Atiyah, ‘Common Law and Statute Law’, 48 The Modern Law Review, 1985, 1-28, at 375 Atiyah, O.c.(1980), 125576 Günther Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences’, 61 Mod. L. Rev. 1998, 11. It should be noted that Teubner is a German (teaching at that time in London) and that his interpretation of the English reaction to the good faith concept in the European Directive may have been more pessimistic than the way English lawyers, or at least some of them, actually looked at it. However, it is true that a duty of good faith does not fit very well in the English tradition of business oriented contract law, which tends to reward the clever business person and to ‘punish’ the less intelligent or less attentive consumer, whereas on the Continent the focus is rather on the protection of the weak parties to a contract, including the worker, the tenant and the consumer. Also, such a transplant is ‘irritating’ the English doctrinal legal system in the sense that it needs to come to terms with it, integrating it somehow and partly adapting it. Moreover, it is irritating the more liberal Anglo-Saxon economic system with which it does not fit well. It is from these perspectives that Teubner is using the term ‘irritant’. An example of the business orientation of the Common Law is Arnold v Britton, Supreme Court, (2015) UKSC 3677 Simon Whittaker, ’Contracts, Contract Law and Contractual Principle’ in: J.Cartwright & S.Whittaker (eds) The Code Napoleon Rewritten, Oxford, Hart: 2017, 29-55, at 4278 Jack Beatson, ‘Has the Common Law a Future?’, 56 Cambridge Law Journal 1997, 291-314, 292

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Eventually, it is neither the idea of a legal principle or even of ‘good faith’ (see above the cases of cohabitants standing as security)79 which wouldn’t fit with the Common Law, but the idea of a very general, overarching principle imposing good faith on all contractual parties under all circumstances, as it was worded by Moore-Bicks LJ. in 2016:

“English law does not recognise any general duty of good faith in matters of contract. It has, in the words of Bingham L.J. in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd (1989) QB 433, 439, preferred to develop “piecemeal solutions in response to demonstrated problems of unfairness”, although it is well-recognised that broad concepts of fair dealing may be reflected in the court’s response to questions of construction and the implication of terms. In my view the better course is for the law to develop along established lines rather than to encourage judges to look for what the judge in this case called some “general organising principle” drawn from cases of disparate kinds.”80

This is clearly the traditional position of the English Common Law, but the position of the High Court and of other Common Law jurisdictions suggest that there might be another dominant view in the future.

Also influential in England is the feeling that a general duty of good faith in contract law would be against ‘business common sense’. On the Continent, on the other hand, moral considerations take preponderance over business rationality.

Also the fear for ‘floodgates’ is always present in English courts. A general principle of good faith

“would be invoked as often to undermine as to support the terms in which the parties have reached agreement.”81

This chapter, in which we examined continental legal reasoning in a perspective different than what a Cour de Cassation decision might suggest82, will now be followed by a brief examination of what ‘legal reasoning’ is, in general, and to what extent the context of each legal system (legal culture, paradigmatic framework) determines (the outcome of) this reasoning.

4. Some Specific Modes of Legal Reasoning79 And see also the contracts in Common Law of “the utmost good faith” mentioned by Beatson (o.c., 304)80 Moore-Bick LJ in MSC Mediterranean Shipping Co SA v Cottonex Anstalt (2016) EWCA Civ 789, at 45 (under the heading of ‘Good Faith’), reacting against the first judge, Justice Leggatt, who found support in an unanimous judgment of the Supreme Court of Canada of 2014 and some English decisions to see “increasing recognition in the common law world of the need for good faith in contractual dealings.” (High Court, Queen’s Bench Division Commercial Court 12 Feb.2015, (2015) EWHC 283 under the heading ‘The ‘legitimate interest’ principle’.81 Moore-Bick LJ in MSC Mediterranean Shipping Co SA v Cottonex Anstalt (2016) EWCA Civ 789, at 45 (under the heading of ‘Good Faith’).82 Compare the findings of Mitchel Lasser, which show a notable discrepancy with the Cour de cassation, between a formal, apparently purely deductive reasoning and a much more informal, inductive approach behind the scenes (M.de S.-O.-l’E Lasser, Judicial Deliberations.A Comparative Analysis of Judicial Transparency and Legitimacy, Oxford University Press, 2004)

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In this section we will discuss three elements which play an important role in legal reasoning: ‘general justice’ vs ‘individual justice’, the interpretation of statutes, and references to authority.

4.1 General Justice vs Individual Justice

Both on the Continent and in England there has been a development from an emphasis on a strict application of rules in 19th Century to a more pragmatic approach today. This is evident for the Common Law from a historical analysis, carried out by Patrick Atiyah, on the changes in the function of the judicial process in England.83 In eighteenth and nineteenth century the chaotic content of the law, and most notably of Equity, created a demand for coherent principles84. With the integration of Equity in the Common Law and the emergent preponderance of legislation in the twentieth century, there was more room for a pragmatic approach.

A strict application of general rules focuses on equal treatment of all those to whom the rules apply. In contrast, focusing on the specific characteristics of the case may lead to a more flexible interpretation of a rule, felt to be too general, and to a more individualised justice. With regard to France, François Gény’s book on the methods of interpretation in private law, published in 189985, was a milestone in the development of a more flexible approach to legal interpretation, after a period of dominance of the Exegetic School, which favoured a very strict application of the Civil Code. In Germany, in the second half of 20th Century, Josef Esser’s works, arguing for the social acceptability of judicial decisions86, have been very influential. Legal doctrine and case law had already accepted a flexible approach to contract interpretation when circumstances had fundamentally changed and made the contract too onerous for one party. When, in 2001, the part of the German Civil Code on the law of obligations was revised, the legislator confirmed this approach in the new § 313.87

83 Patrick S. Atiyah, ‘From Principles to Pragmatism: Changes in the Function of the Judicial Process and the Law’, 65 Iowa Law Review, 1980, 1249-127284 Atiyah, o.c., 1251: “The idea that a vague body of discretionary rules could continue to co-exist with the more certain body of common law rules was giving way to the idea that all law should depend on fixed principles.85 François Gény, Méthodes d’interprétation et sources en droit privé positif, 2 vol., Paris: Librairie Générale de Droit et de Jurisprudence, 1899 (reprint in 1954)86 Josef Esser, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts, Tübingen: J.C.B.Mohr, 1956 (2nd ed.: 1974), in which continental approaches to legal interpretation are compared with the Common Law ones; Josef Esser, Vorverständnis und Methodenwahl in de Rechtsfindung, Frankfurt: Athenäum Verlag, 1970, in which he analyses the interpretation process as a dialectical discussion between norms, facts and legal solutions, mainly guided by social values (as seen by the judges) rather than by statutory norms.87 Law of 11.10.2001, in force as from 1.1.2002. §313 allows an adaptation of the contract by the judge when circumstances have fundamentally changed after the contract had been concluded, when this affects the core of the contract, when the risk for such changes doesn’t lie with the losing contracting party on the basis of a contractual or statutory provision and when he didn’t contribute to those changes. This is called ‘Wegfall der Geschäftsgrundlage’ (loss of the contractual basis). This more flexible approach in legal doctrine and case law had mainly developed through the concept of Treu und Glauben (good faith) after the tremendous inflation following the end of the first World War, when a bread or a stamp cost millions of Mark, a little fortune before the war.

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In Italy, a work of Emilio Betti on interpretation in human sciences might be mentioned, the eighth chapter discussing legal interpretation and emphasizing the importance of the facts of the case when interpreting a statute88. In The Netherlands, the Dutch Civil Code of 1992 confirmed a long established flexible interpretation by courts.

In this context it is not surprising that the European Court of Justice, since its creation in 1958, has been using a teleological interpretation, not a strict application of the wording of the European rules. The fact that some quite broad and rather vague concepts, such as ‘abuse of economic power’, ‘disturbing the market’, etc., are used in the European rules has facilitated such an approach, if not made it necessary. Equally the European Convention on Human Rights uses vague concepts such as ‘equal treatment’, ‘freedom of speech’, ‘fair trial’, as fundamental rights inevitably do. Accordingly the European Court of Human Rights had to take a case by case approach which was more guided by current views than by the intention of the parties to the Treaty in 1950.89 Although this Court has regularly been criticised for its too progressive approach, overall the liberal approach and broad interpretation of all the European courts has, undoubtedly, had an influence on national courts on the Continent, as already mentioned above.

4.2 The interpretation of statutes

Statutory law plays a comparable role on both sides of the Channel, at least quantitatively. Qualitatively, fundamental principles in continental legal systems are to be found in the codes, whereas in the Common Law they often will still be offered by important court decisions from the past. Statutes often tend to regulate only part of the area, which needs special rules, the other aspects still being governed by the common law.90 But, as such, the interpretation of statutes should a priori follow the same road in legal reasoning in both legal cultures. Indeed, in their comparative analysis of statutory interpretation, Summers and Taruffo note “a shared general conception of good reasons for the resolution of interpretational issues”, implying “a deep common rationality rooted in shared values”. These similarities, according to these authors, “consist mainly of: (1) a set of major types of arguments that figure in the opinions; (2) the materials incorporated into the content of such arguments; (3) the main patterns of justification involved; (4) the modes of settling conflicts between types of arguments; and (5) the role of precedents interpreting statutes.” Arguments, they note, are most often invoked in opinions as reasons to justify the decision reached. This means that their comparative analysis is not focusing on reasoning as such, which would be much more difficult, but on the way the judges argue in support of their decisions. Of course, there is a link between both, but it is my conviction that similarities are largely to be found at the level of reasoning, whereas the differences are to be found at the levels of paradigmatic, cultural framework and tradition of style of wording judicial decisions. The ‘common core’ of arguments used in statutory interpretation includes mainly: references to the ‘ordinary meaning’ or the ‘technical

88 Emilio Betti, Teoria generale della interpretazione, Milano: Giuffrè, 1955 89 This was even explicitly stated by the Court in the Marckx case of 13 June 1979 (see above, footnote 86)90 Simon Whittaker,’Contracts, Contract Law and Contractual Principle’ in: J.Cartwright & S.Whittaker (eds) The Code Napoleon Rewritten, Oxford, Hart: 2017, 29-55, at 39

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meaning’ of words in statutes, or the content of other parts of the same statute (‘contextual harmonization’); the use of precedents already interpreting the statute at hand, or of statutory analogies; arguments based on general legal concepts or principles; arguments based on history or teleology (the purpose of the law). Such arguments are obviously revealing with regard to the reasoning underlying statutory interpretation. They show that the reasoning runs parallel in the legal cultures studied.

David Miers saw a tension in Anglo-American legal theory between two extreme theories, neither of which represents the mainstream treatment of statutory interpretation in that tradition. The first theory “conceives the statutory text as an object capable of bearing meaning independent of the interpreter (and, indeed, of the author’s possible intentions) which is in large measure self-interpreting..”, whereas the second one “regards the interpreter as being the appropriate object of study, whose discretion to create meaning is considered to be more or less constrained by a variety of factors (of which the canonical terms of the text are but one).”91 Approaches to be found in legal theory literature probably come closer to the actual reasoning of judges than the way the result is presented in judicial decisions. Ferguson has analysed the way in which English judges keep up appearances, “in other words, in the character of judicial discourse conceived of as a publicly accessible objectivation”92 He concluded a marked stability over time of English judicial discourse between 1801 and 1975, whereas views on interpretation have changed significantly during that period. In the field of interpretation of contracts, an emphasis on the wording of the text is typically to be found in a Court of Appeal decision of 1911:

"If there is one principle more clearly established than another in English law it is surely this: It is for the court to construe a written document. It is irrelevant and improper to ask what the parties, prior to the execution of the instrument, intended or understood. What is the meaning of the language that they have used therein ? That is the problem, and the only problem"93

In 1997 Lord Hoffmann took a quite different position:

"The meaning of words, as they would appear in a dictionary, and the effect of their syntactical arrangement, as it would appear in a grammar, is part of the material which we use to understand a speaker's utterance. But it is only a part; another part is our knowledge of the background against which the utterance was made."94

Differences in the frequency of arguments used may easily be explained by the context. The European Court of Justice, for instance, has always preferred a teleological interpretation, mainly because this was the best way to interpret rather vague dispositions in the European treaties and also in order to move forwards in the direction that those treaties had as their general aim. According to Summers and Taruffo, arguments from statutory analogies are widely deployed on the Continent, but far less influential in the UK and the USA. They 91 David Miers, ‘Legal Theory and the Interpretation of Statutes’, ch.7 in W.Twining (ed.) Legal Theory and Common Law, Oxford: Basil Blackwell 1986, 115-135, at 11792 R.B.Ferguson, ‘The Horwitz Thesis and Common Law Discourse in England’, 3 Oxford Journal of Legal Studies, 1983, 34-58, at 4293 Cozens-Hardy MR in: Court of Appeal, Lovell & Christmas Ltd v Wall 104 LT, 1911, 8594 House of Lords, Mannai Investment Co Ltd v Eagle Star Life Assurance Co, A.C. 1997, 749

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rightly explain this by the more limited role of legislation in Common Law legal systems, compared to Continental ones where legislation is presumed to regulate everything. Statutory analogies may fill possible gaps on the Continent, whereas the Common Law fulfils that role in the UK and the USA.

Judges in the USA and in the UK make frequent use of arguments based on hypothetical cases. In most other systems this occurs less often. Sometimes “a hypothetical case is put to which common sense supposedly supplies a clear answer; then an analogy is drawn between the hypothetical case and the case in hand.”95 But the obvious explanation for the use of hypotheticals is that Common Law judges are, by doing so, testing the generalizability of their decisions. If their decision is going to act as a precedent, even more if a binding one, this is a sound technique. Continental judges do not need to do this, for generalization is in the interpreted statute. Future judges will refer to this statute, not necessarily to prior interpretations by other judges. Moreover, in the UK there is the fear of ‘opening the floodgates’ for series of cases which a certain interpretation or change of the law might make possible. This sometimes acts as a block to certain interpretations. However this kind of fear is much less present on the continent.

Policy arguments and arguments based on economic rationality are more present in Common Law judicial decisions96 compared to the Continent. In the continental perspective policy is a matter for legislators, not for courts, The Common Law has developed through judicial decisions and the policy choices made by judges. Hence, policy arguments in judicial decisions fit much better with the Common Law97 than with continental legal systems, at least in the reasons given explicitly. On the continent policy reasons may be hidden behind other arguments. The same goes for arguments based on economic rationality. This kind of arguments is linked to a traditionally more business (or liberal) orientation of the Common Law98 and especially with regard to contracts and torts. The development of Law and Economics as a discipline is now supporting such arguments. They are not absent on the continent, but hard to be found in judicial decisions. In legal writings, however, it is not exceptional, be it not yet common, to find economic concepts used such as ‘transactional costs’. Also, European Union Law being focused on creating and maintaining a free market one may expect a much more business oriented case law in the European Court of Justice than in the average court in the Member States.

4.3 Reference to authority

95 R.B.Ferguson, ‘The Horwitz Thesis and Common Law Discourse in England’, 3 Oxford Journal of Legal Studies, 1983, 34-58, at 47, quoting examples from case law.96 Eg Lord Denning, concerning the policy as to recovering economic loss, in Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd (1973) 1 QB 27 Court of Appeal; Barclays Bank v O’Brian, Court of Appeal 3 WLR 593 by Scott LJ (married women providing security for their husband’s debts)97 John Bell,Policy Arguments in Judicial Decisions, Oxford: Clarendon Press, 198398 See, e.g., Transco Plc v Stockport Metropolitan, House of Lords 19 November 2003, (2004) 2 AC 1, paragraphs 46 and 60 (with contradictory positions)

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Authority plays a crucial role in law. The myth is that on both sides of the Channel judges do not make law; they just word the law as it is, repeating the content of an Act of Parliament, not changing it, on the Continent, or they state the law as it has been since times immemorial in the Common Law.99 On occasion the opposite is emphasised: courts adapt the law to changed circumstances and social needs. The myth mainly aims at hiding a creative judicial activity, which may be controversial, behind the authority of the legislator or the tradition. Indeed, courts have to refer to recognised authorities to legitimate their decisions. Simpson even noticed, a few decades ago, an “increased importance attached to authority, in particular quoted judicial opinions, in the working of the system.”100

On the Continent those authorities are legislation, court decisions and legal doctrine, in that order. In the Common Law, when no legislation applies, it is court decisions and legal doctrine, in this order. When legislation applies, the authorities will be the same as on the Continent. However, one should bear in mind that in England, compared to the Continent, the development of legal doctrine as an authority in its own right is a recent phenomenon.

“Academic law remained a fairly moribund, amateurish profession throughout the first half of the twentieth century. Never mind that judges were disinclined to allow citation of academic writings in court; academics, what few there were, were often disinclined to write.”101

Whereas, as noted by Duxbury

“In the second half of the twentieth century, the academic legal profession in England has not only grown significantly but has become much more organized, prolific, competitive, self-assured and able to provide practitioners, and to some extent judges also, with appropriate expertise and critical advice.”102

Of course, the relative weight of the authorities may diverge, including among the legal systems on the Continent. Higher courts have more authority than lower courts. Not all doctrinal legal writers have the same weight. Legal doctrine is a stronger authority in Germany than in any other European country. In England it used to have no authority at all, except when written by legal practitioners, but today legal doctrine is catching up rapidly as an important authority in the Common Law jurisdictions.103 Decisions of the European Court 99 See, e.g., Richard Nobles & David Schiff, ‘Why do judges talk the way they do?’, 5 International Journal of Law in Context, 2009, 25-49, 39 ff; Bernard Rudden, ‘Courts and Codes in England, France and Soviet Russia’, 48 Tulane Law Review, 1974, 1010-1028, at 1011.100 Brian Simpson, ‘The Common Law and Legal Theory’ in W.Twining (ed.) Legal Theory and Common Law, Oxford: Basil Blackwell 1986, 8-25, at 8-9; Simon Whittaker,’Contracts, Contract Law and Contractual Principle’ in: J.Cartwright & S.Whittaker (eds) The Code Napoleon Rewritten, Oxford, Hart: 2017, 29-55, at 31-33, giving four characteristics of the Common Law as opposed to French law: (1) norms in contract law are overwhelmingly non-mandatory, (2) no general control on the validity of the contract, (3) a different conception of legal certainty: a very broad legislative proposition looks clear and accessible in France and therefore supportive of legal certainty, but in England it may look uncertain in its application and therefore disruptive of legal certainty, (4) no general legal principle, such as good faith or fairness to counter the freedom of contract and the binding force of contract. 101 Neil Duxbury, Jurists & Judges. An Essay on Influence, Oxford: Hart 2001, 71.102 O.c., 73103 Extensively on this: David Sugarman, ‘Legal Theory, the Common Law Mind and the Making of the Textbook Tradition’ in W.Twining (ed.) Legal Theory and Common Law, Oxford: Basil Blackwell 1986, 26-61;

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of Justice and of the European Court of Human Rights have a similar authority in all European countries, civil law and common law systems alike.

In the UK the use of authorities by court has to some extent been regulated by a Practice Direction (Citation of Authorities), issued by the Lord Chief Justice in 2001104. Some types of judgment can be cited only if they purport to establish a new principle or extend the present law and, hence, judgments must contain an express statement that they purport to establish a new principle or extend the present law. Such rules would be unthinkable on the Continent. Courts are not presumed to word new principles, even if sometimes they have done so. Equally they are not expected to change the law. Sometimes it is accepted that courts may develop the law, adapt it to changed circumstances, and it is generally accepted that courts may interpret the law and precise its content and scope. However, lower courts are mostly not bound by precedents on any of those points. Hence, these precedents are weaker authorities than in the Common Law and there is no need to regulate references to them. Reference to a statutory provision will suffice. Even references to ‘unwritten general principles of law’ will suffice as such, without any reference to the court decision in which the principle had been introduced. Even more, court decisions may never be used as the legal basis for another judicial decision. Only statutory law and, exceptionally, customary law or unwritten legal principles can be referred to as a legal basis. References to case law and legal writings may be used to support the actual choice and interpretation of those legal sources, including their applicability to the facts of the decided case.

Authorities are referred to in the first place to support a court decision, but they are not necessarily the source of knowledge on which the judicial decision is based. When a statute is interpreted, the meaning given to it is constructed by the judges, not derived with logical necessity from that text, but it is, on the Continent, still presented as “the will of the legislator”. In the same way, in the Common Law, references to precedents may hide a change in the law; the precedent might be followed in appearance only. Also on the Continent it is not uncommon to present a change in the law as following established precedents, and, by this, hiding that change. Moreover judges may well deny that they make law and pretend that they are just applying pre-existing rules, that is to say legislative rules on the Continent, Common Law rules in England, Ireland and Wales.105

Neil Duxbury, Jurists & Judges. An Essay on Influence, Oxford: Hart 2001, 61-115. In a 1995 House of Lords decision: “I am not suggesting that to the already extremely lengthy appellate process there should be added the reading of lengthy passages from textbooks and articles. But such material, properly used, can sometimes help to give one a better insight into the substantive arguments. I acknowledge that in preparing this short judgment the arguments for and against the ruling in Ross v Caunters were clarified for me by academic writings.” Per Steyn L.J., in White v Jones (1995) 2 AC 207104 (2001)1 WLR 1001105 Lord Esher worded it as follows: “(T)here is in fact no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable.” (in Willis v. Baddeley [1892] 2 QB 324, 326 (CA)) An attitude which had already been criticised by John Austin, commenting on Blackstone, as “the childish fiction employed by our judges, that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity and merely declared from time to time by the judges.” (Lectures on Jurisprudence, or the Philosophy of Positive Law, R.Campbell, ed.,student edition New York: Henry Holt, 1875, 321.

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5 Rights v Remedies

The history of the Common Law explains why actions and the remedies linked to them are at the core of legal reasoning, whereas on the continent the focus is on rights. In Middle-Ages access to common law courts was limited to actions for which a writ was available. The claimant had to buy the correct form of writ.106 Hence, legal reasoning in common law has been moulded that way and didn’t substantially change up to now.107

Although Roman Law was also build on actions, the continental legal systems didn’t inherit this procedural approach, but have always reasoned from rights. However, this doesn’t mean that legal reasoning would be completely different on both sides of the Channel. Rights are not absent in the Common Law. The availability of an action gives right to a remedy. The ‘Bill of Rights’ has not been called ‘Bill of Actions’. Human Rights could hardly be moulded into (more limited) actions. On the Continent, on the other hand, when rights are offended some remedy will be offered. Rights, actions and remedies are closely intertwined. Rights and remedies are two sides of the same coin, be it a Euro or a Pound.Just like with inductive and deductive reasoning, the starting point may be different, if not in the judicial reasoning itself, at least in the way it is presented, but the actual reasoning will be an interaction between both. It is true that a narrow approach to actions may limit the actual rights recognised by the court, but the same happens with a strict interpretation of a statute.Moreover, as noted by Geoffrey Samuel, it is not always easy to distinguish between ‘right’ and ‘remedy’.108 When analysing ‘remedies and reasoning’ the same author writes:

“How, then, does the remedies model of judging and reasoning function? It is really a question of where one starts. The rights model approaches judging from the position of a formalised, abstract and coherent (supposedly) system of pre-ordained rights expressed as ‘axiomatic’ principles. Do the facts reveal that the claimant has a right to the particular remedy claimed? A remedies approach, in contrast, starts out from the remedy itself: does the claimant justly deserve a remedy on these facts? This difference of approach can result in a different form of reasoning.”109

In a way it is just a matter of wording things. On the continent someone has some right and in order to cure the offense the law offers a certain remedy. The common law makes a kind of shortcut: the person has a right to a particular remedy. The result is the same. Of course, the

For an anthropological analysis of this ‘authority of the pa de S.O.-l’E. Lasser st’ in the Common Law, see: Louis Assier-Andrieu, L’autorité du passé. Essai anthropologique sur la Common Law, Paris: Dalloz 2011106 Raoul Van Caenegem, Judges, Legislators and Professors, Chapters in European legal history, Cambridge University Press, 1987107 « typically, English law fastens not on principles but on remedies » House of Lords, Davy v Spelthorne BC (1984) AC 262 by Lord Wilberforce; “The judge seems to have thought that it did not matter much what was the proper cause of action; it all came back in the end to the universal tort of negligence. I do not share this view.” Court of Appeal Esso Petroleum Co Ltd v Southport Corporation (1954) 2 QB 182 by Denning LJ 108 G.Samuel, A Short Introduction to Judging and to Legal Reasoning, Cheltenham: Edward Elgar, 2016, 74, commenting on Lord Nicholls dissenting opinion in Mercedes Benz AG v Leiduck (1996) 1 AC 284 Privy Council109 O.c., 77

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different approach has consequences for judicial reasoning and may also entail differences as to the practical results, but eventually ‘rights’ and ‘remedies’ are present in all types of reasoning, everywhere, no matter where one starts.

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6 Reasoning within diverging frameworks

Reasoning may have universal characteristics, as legal theory assumes, but it is also obvious that legal systems may diverge considerably as to concepts, rules, values, culture, tradition, etc, and that this is influencing the roads followed in legal reasoning and/or its results as most comparatists emphasise.Indeed, the culture of the legal community involved, which is often, but not always, located at the level of a State, will strongly influence (judges’) legal reasoning. Some views are deeply embedded in this culture and constitute the paradigmatic framework within which lawyers reason and within which divergent opinions and debates are possible. François Gény gave the example of a French judge, Paul Magnaud, in the late 19th century who reasoned outside that framework110. Magnaud always decided according to his, rather progressive, views on equity, in favour of the poor, whatever the legal rules were111. Unfortunately, on appeal judges decided otherwise, precisely because his legal reasoning did not remain within the paradigmatic framework of French legal culture in that period.

This paradigmatic framework112 includes:(a) A concept of law (including the position of law towards other social norms)(b) A theory of valid legal sources (including their hierarchy)(c) A methodology of law (e.g. the standard style of writing for statutes and for judicial

decisions)(d) A theory of argumentation (can, for instance, non-legal arguments be used?)(e) A theory of legitimation of the law (e.g. a purely formal legitimation or (also) one on

the basis of moral or religious values?)(f) A common basic ideology (common basic values and a common basic world view

prevalent in that community and society, not only related to law)It should be obvious that diverging views on one or more of those points will influence legal reasoning. For instance, the acceptance on the Continent of ‘travaux préparatoires’ as a useful source for interpreting statutes may lead to other results than if it was not classified as a valid legal source, as is still generally the case in the Common Law. The acceptability or not of non-legal arguments within legal reasoning may also strongly influence the result. For

110 François Gény, Méthodes d’interprétation et sources en droit privé positif, 2 vol., Paris: Librairie Générale de Droit et de Jurisprudence, 1899 (reprint in 1954)).111 Paul Magnaud (1848-1926) was the president of the civil court of Château-Thierry between 1887 and 1906, when he was elected as a ‘radical-socialist’ member of parliament. He tried to change the law on many points, but without success. For most of those changes France had to wait almost one century. In 1910 he did not wish to continue in politics and returned to being a judge again, first in the Seine court and later in the Paris Court of Appeal.112 See, more extensively, on this: Mark Van Hoecke & Mark Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards A New Model for Comparative Law’, 47 ICLQ 1998, 495-536, at pp.513-520; see also: Jeremy Webber, ‘Culture, Legal Culture, and Legal Reasoning: A Comment on Nelken’29 Australian Journal of Legal Philosophy, 2004, 27-36

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example, policy arguments113 and arguments from economic rationality114 are much more present in Common Law judicial decisions than on the Continent.The question remains whether legal reasoning as such is different or whether only the elements with which one is reasoning diverge.

Louis Assier-Andrieu has argued that the link between both legal cultures and their history is a more important element in distinguishing the Common Law from Continental law than the opposition of Code versus case law.115 In the Common Law the judge links his or her decision to a long chain of predecessors and, through it, to the fundamental values of society116, whereas for the French lawyer there is no relevant history before the French Revolution117. Moreover, legislation is always oriented towards the future, abolishing the past law. Assier-Andrieu may be right in his analysis, but this will tend to just add some mystification to the arguments offered in a judicial decision than it will affect legal reasoning as such. Anyway, it is also part of the paradigmatic framework of each of those legal cultures.

In order to analyse differences and divergences between legal reasoning in the Common Law and on the Continent, we will here discuss the role of courts, the legal profession, the style of judicial decisions and the role of legal traditions.

6.1 The role of courts

According to Eisenberg the two paramount social functions of courts, at least in Common Law, are the resolution of disputes (in which taking initiative is up to the parties, not to the judges)118 and the production of legal rules on that occasion, complementing legislation119.World-wide there will be an agreement on the first function, as this is considered to be the core task of courts everywhere, even if negotiation and compromise outside court are in most cultures considered more desirable. Sometimes courts may play a more active role in the trial, whereas in other cultures courts will simply let the parties ‘fight’ and then decide according to the law. The second point, however, has been the subject of debate from the 19th century onwards in most of the countries.

113 John Bell, Policy arguments in judicial decisions, Oxford: Clarendon Press, 1983.114 For example in contract interpretation the argument from business rationalty plays an important role for rejecting an interpretation which doesn’t make sense from that point of view (e.g. House of Lords, Chartbrook v Persimmon, (2009) 1 AC 1101, where the interpretation accepted by the lower courts has been rejected as “commercial nonsense” (n 89) For more case law, see Kim Lewison, The Interpretation of Contracts, London: Sweet and Maxwell, 4th ed,, 2007, ch. 2.07 ‘Business Common Sense’, at pages 36-42.115 Louis Assier-Andrieu, L’autorité du passé. Essai anthropologique sur la Common Law, Paris: Dalloz, 2011, p.245; also Bernard Rudden has emphasised the importance of a different attitude to time in England, as compared to France (Bernard Rudden, ‘Courts and Codes in England, France and Soviet Russia’, 48 Tulane Law Review, 1974, 1010-1028, at 1027-1028)116 O.c., p.243117 “L’histoire est celle d’une marche linéaire vers un absolu juridique incarné par le Code civil.” (o.c., p.189)118 Melvin Aron Eisenberg, The Nature of the Common Law, Cambridge (MA): Harvard University Press, 1988,4119 “it is socially desirable that the courts should act to enrich the supply of legal rules that govern social conduct” (Melvin Aron Eisenberg, The Nature of the Common Law, Cambridge (MA): Harvard University Press, 1988, 5)

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Most notably the Exegetic School, in 19th century France, has considered that only legislators are entitled to make rules. Judges should just apply them, not adapt them, whatever good reasons there may be. It has sometimes happened that courts openly regretted in their decisions that they had to decide the way they did and urged the legislator to change the law. Other schools, however, ‘La libre recherché scientifique’ in France120, the Freirechtslehre121 and the Interessenjurisprudenz122 in Germany, the Functionele Rechtsleer123 in The Netherlands, ‘L’uso alternative del diritto’ in Italy124, and Scandinavian Legal realism125 in the Nordic countries emphasised the importance of reaching an adequate and equitable solution, taking into account the facts of the case. In legal practice some judges argued very legalistically, whereas others interpreted the law rather broadly in order to reach a more equitable solution, but hiding it behind a veil of apparently strict interpretation of the law.

In Germany it is largely accepted that trials aim not only at solving problems between parties but also at further developing the law126. In The Netherlands, the supreme court (Hoge Raad) evolved slowly from a strict interpretation of statutory law in 19th century to a more flexible approach. In 1963 the legislator changed the task of the Hoge Raad. Until then the supreme court could only review the legality of lower court decisions on the basis of statutory law (wetgeving); but since 1963 it has to review it against the law more broadly (recht)127. This clearly allows the Hoge Raad to be (very) creative in its decisions, taking into account equity, reasonableness, ethics, and so on, and this court has largely used this opportunity.It should be noted that the role of higher courts is somewhat different in the Common Law, when compared to the Continent. In the UK there is no free access to the Court of Appeal or the Supreme Court. Permission has to be obtained. On the Continent there is generally free access to all levels of the judiciary. In Common Law it is up to the Supreme Court (and before the House of Lords) to decide on the exact content of the law and to word new rules and principles. Lower judges are bound by precedents of higher courts and not expected to introduce new rules or principles128. On the Continent lower judges are generally free to take a different position on legal issues than the higher courts. This may act as a feedback: when

120 François Gény’s rather moderate approach (see his Méthodes d’interprétation et sources en droit privé positif, 2 vol., Paris: Librairie Générale de Droit et de Jurisprudence, 1899 (reprint in 1954)).121 Hermann Ulrich Kantorowicz (1877-1940)122 Philip Heck, ‘Gesetzesauslegung und Interessenjurisprudenz’, Archiv für die civilistische Praxis, 1914, 1ff., emphasises the central role played by private and societal interests protected by the law when interpreting statutes123 Most notably Jack ter Heide in his Rotterdam inaugural lecture (De onafhankelijkheid van de rechterlijke macht. Een functioneel-analytische beschouwing, Amsterdam/Brussels: Agon Elsevier, 1970) and in his contribution to the volume ‘Taak en opleiding van de magistraat’ (M.Storme, ed., Ghent 1973, 31-61 with an English summary at pp.60-61)124 A leftist, marxist attempt to use the law in favour of the poor through a creative interpretation of the law (see e.g. Thomas Blanke, Pietro Barcellona, e.a., L’uso alternativo del diritto, Roma-Bari: Laterza, 1973)125 Karl Olivecrona, Law as Fact, London: Stevens & Son, 1971 (1st ed.: 1939); Alf Ross, On Law and Justice, London: Stevens & Son, 1974 (1st ed.: 1958), esp. pp.108-157126 Christian Heinze, ‘Verfahrensrechtliche Aspekte der richterlichen Rechtsfortbildung in Deutschland’, RabelsZeitschrift 2016, 254-287, at 256 with references127 Art.79 Wet Rechterlijke Organisatie; see for this historical development: Ernst Numann, ‘Rechtsfortbildende Funktion der Hoge Raad der Nederlanden’, RabelsZeitschrift 2016, 313-326, at 314-316 (English summary at 325-326)128 “The role of an appeal judge is not, …, to assert general principles of law or even general rules.”(Geoffrey Samuel, A Short Introduction to the Common Law, Cheltenham: Edward Elgar, 2013, 37

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most of the lower courts would discard a precedent it is very likely that the higher court will follow the lower courts and adapt its jurisprudence. Concurring and dissenting opinions are expressed in decisions of the UK Supreme Court, not on the Continent, where the principle of collegiality makes the judges issuing a single judgment of the court itself, in which there is no room for individual opinions.

In England, resolving disputes, as task for judges, has also been opposed to “laying down principles”129. Indeed, views on the role of the judge vary and have varied considerably, both within the Common Law130 and on the Continent. Both areas have in common a constant tension between judge and legislator and between the individual judge on one side and precedents and majority ruling on the other.131

In practice, courts on the Continent play a much more important role than the traditional – and still official – view would suggest. In Belgium, Robert Kruithof has argued that although decisions of the Court of Cassation are formally not ‘arrêts de règlement’, as the judge is not entitled to formulate (new) general rules in his judgment, in a material sense they are in reality.132 According to Bernard Rudden the (French) Court of Cassation “can act more decisively and more boldly – not less – than the English court”.133

In addition, the creation, in the course of (mainly the second half of) twentieth century, of constitutional courts, in many European countries, and supra-national, European courts with the power to quash legislation, has influenced the traditional view on the role of courts and their (subordinate) relationship with legislation134. Courts are now also perceived as the protectors of citizen against political majorities, which is the core task of constitutional courts, and against too generally worded rules, leading to absurd or unjust results in some cases. In contrast to the view dominating in the period after French revolution, the relationship between legislator and judge is now conceived more as a division of labour than as a strict hierarchy. Of course, it is still up to the legislator to lay down the rules, but, as the legislator cannot foresee every single case, some room must be left to the judge when applying those rules.

129 See however further chapter ‘4.2.3 Reference to Authority’ and the Practice Direction (Citation of Authorities) 2001130 A.G.Chloros, ‘Common Law, Civil Law and Socialist Law:Three Leading Systems of the World, Three Kinds of Legal Thought’, The Cambrian Law Review, 1978, 11-26, 13; David Dyzenhaus & Michael Taggart in Douglas E.Edlin (ed.), Common Law Theory, Cambridge University Press 2007, 134-135131 David Dyzenhaus & Michael Taggart, o.c., 134-135132 Robert Kruithof, ‘Naar een ‘gouvernement des juges’ in het verbintenissenrecht?’ in Hulde aan Prof.Dr.R.Kruithof, Antwerp: Maklu & Brussels: Bruylant, 1992, 57133 Bernard Rudden, ‘Courts and Codes in England, France and Soviet Russia’, 48 Tulane Law Review, 1974, 1010-1028, at 1026, with, at p.1025, an example of the Court of Cassation creating a new rule outside the code, if not against it.134 E.g.: Bertrand Mathieu, ‘Le Conseil Constitutionnel législateur positif’, Revue internationale de droit comparé 2010, 507-531

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6.2 The Legal Profession

It is well known that the position of judges and of legal academics may well vary within Europe.135 In England, Wales and Ireland judges have a key position in the legal system, including being a source of law, whereas on the Continent they are presumed to be completely subordinated to the legislator. As for legal academics, it is the other way around: in France and even more in Germany136 law professors are highly esteemed and play an important role in the development of the law. Historically it was such scholars who prepared and drafted the Codes.

In England, legal education was traditionally organised by legal practitioners within the Inns of Court; for before 1826 there were no law faculties in England. Even today, university education is more limited than on the continent for two reasons. Firstly, most students end their studies with a bachelor degree (LLB), after three years of study. They will have to add a further year of professional study and examinations if they want to go into legal practice. Many UK students do now go on to do a master degree in law (LLM) and such a degree usually takes one year. On the Continent, legal studies at university will mostly take five years. Secondly, the number of courses to be taken is less than half in England, compared to the Continent, and only a very few are compulsory. On the Continent virtually all courses at bachelor level are compulsory. Inevitably, such differences influence legal reasoning, or at least the sources one takes into account when reasoning about law.

As a result of the late introduction of law faculties in England and the slow development of scholarly activities in them, legal doctrine is less developed than on the Continent. However, it would be a mistake to assume that there would have been no legal doctrine in England before 1826. From the 16th century legal doctrine has been elaborated by judges, in court decisions that would become, as from 19th century, binding precedents.137 Some of those judges also wrote authoritative textbooks on law (Coke, Blackstone for example) but it is only in more recent times that textbooks and articles written by academics (rather than by renowned judges) have become authoritative in court, as there was no developed legal doctrine in England before that:

“The common law in the eighteenth century was still based on an oral tradition, not a dogmatic one. Lacking a Roman base, England could not produce a Pothier or Thibaut or Savigny, since the English analyst had no clear foundation of concepts to build on. … much of

135 For a historical and comparative overview, see Raoul C. Van Caenegem, Judges, Legislators and Professors. Chapters in European legal history, Cambridge University Press, 1987136 Stefan Grundmann & Karl Riesenhuber (eds), Private Law Development in Context. German Private Law and Scholarship in the 20th Century, Cambridge/Antwerp/Portland: Intersentia, 2018, most notably Part I, p.3-109, the other parts containing a presentation of 37 important German scholars, at p.111-850137 Binding precedents were not possible until there were comprehensive and reliable law reports, which did not occur in England before the early ninenteenth century (J.P.Dawson, The Oracles of the Law, Ann Arbor 1968, 78. Before that the authoritative force of precedents in England must have been comparable with the current force of precedents on the continent: strong, but not absolute (M.Lobban, The Common Law and English Jurisprudence 1760-1850, Oxford: Clarendon Press, 1991, 83)

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Bentham’s codifying of the law served as a vehicle towards the building of a dogmatic system.”138

However, Bentham’s analytical work, trying to make sense of the common law has not been influential as it remained unpublished until the twentieth century.139

In Germany, the Civil Code of 1896 had been prepared in different stages by law professors and indeed for most of 19th century there were debates among the law professors which were strongly to influence the content of drafts of the BGB. It started with a debate in 1814 between Anton Thibaut, who argued in favour of creating one civil code for Germany140 (at that time still divided into many little kingdoms), and Friedrich Carl von Savigny, who considered the time was not yet ripe for such a code141. Later in the century different drafts for a code had been prepared, in 1887 and 1895142, with divergent contents, depending on the most influential law professors of the moment. Because of a lack of political unity between the German regions, only academics could play that role. In consequence, law professors in Germany have up until today kept the high status linked to that role.

In France, the situation is different. Here too, a long standing history of academic writing had laid the foundations for a code, most notably the Code Napoleon. In fact several prominent legal scholars were directly involved in the preparation of this code and even Napoleon himself participated in about half of the debates on the draft project. However, the political context was different. Before the French revolution only wealthy men (no women, indeed) could become a judge, as the position was not paid (the candidate had to pay) and thus case law tended to be somewhat biased towards the interests of noble men and high bourgeoisie. In addition, the courts in those years sometimes enacted rules to be applied in the future, as if they were legislators (arrêts de règlement), and as a result the governments after 1789 were quite distrusting judges. Democratically elected Parliaments (even if democracy at that time was still quite elitist) should be the ones to enact rules and judges should simply apply them. For controlling this the cassation court was created (originally ‘tribunal de cassation’) but initially two ‘wrong’ decisions in the same case would have been submitted to Parliament, which would eventually decide the case. Moreover, it was (and still is) strictly forbidden for judges to use a decision on a case for wording some general rule143. The emphasis on the importance of Parliament and its legislation also put academics in a rather marginal position after the codifications. The only thing law professors were permitted to do in their lectures was to repeat the code, adding perhaps some explanation on where various provisions came 138 M.Lobban, o.c., 118139 O.c., 120140 Anton F.J. Thibaut , Über die Notwendigkeit eines allgemeinen bürgerlichen Rechts in Deutschland, Heidelberg: Mohr & Zimmer,1814141 Friedrich Carl von Savigny, Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft, Heidelberg: Mohr und Zimmer, 1814 ; English translation: Of the vocation of our age for legislation and jurisprudence / Frederick Charles von Savigny ; [translated from the German by Abraham Hayward], New York : Arno Press, 1975.142 Ludwig Enneccerus & Hans Carl Nipperdey, Allgemeiner Teil des bürgerlichen Rechts, 14th ed., 1st vol. (erster Halbband: Allgemeine Lehren, Personen, Rechtsobjekte) Tübingen: J.C.B.Mohr 1952, 32-36143 Art.5 Code civil: “Il est défendu au juges de prononcer, par voie de disposition générale et réglementaire, sur les causes qui leur sont soumises. »

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from historically (Roman law, customary law, old French law, canon law, etc.). When a first comment on the Code Napoleon was published, Napoleon is said to have exclaimed: “My Code is lost”, as he feared that lawyers would misinterpret his code or try to change it through interpretation, whereas the text of the Code was, according to him, clear and understandable for any educated citizen, without legal education, and did not need interpretation. Hence, in this view, academics should teach, not write papers or books. Yet French law professors have often been legal practitioners as well - more than in Germany - and they partly derived their relatively high status from their successes and influence as legal practitioners.144 Of course, this changed in 20th century, but the core of this ideological framework, of this paradigmatic view on the role and position of academics, has survived to an important extent to the present day.

6.3 The style of judicial decisions

The way judges draft their judicial decision has often been confused with the way they reason. Yet there is a major difference between legal reasoning and the way the results of that reasoning are presented to the parties and the public. First, one is not always aware of each step in one’s own reasoning. Subjective elements, values, beliefs, moral judgments, personal experience and the like influence our reasoning much more than we think. This is also the case for a judge who tries to be as objective as possible.145 Moreover, there is always an underlying strategy when drafting a decision, mainly aiming at convincing the reader that this decision is the right one. The way this is done is diverging according to local, mainly national, traditions. Teachers of comparative law like to show how different English, French and German legal decisions may be.146

A French Cour de cassation decision is like an oracle. It mentions the applicable articles from a statute, code and/or the constitution, the criticised decision of the lower court and then its decision, without further reasons being given. Facts are absent, because the Cour de cassation does not decide on facts, only on the legality of the attacked judicial decision. A German decision of the Bundesgerichtshof looks like a doctrinal piece of work, in which facts are more developed than is the case with its French counterpart. The English Supreme Court, and, before, the House of Lords, offers a story in which the facts of the case play a central role. Discussing precedents and their applicability on the facts is another major characteristic of these decisions.

Diverging approaches, indeed, but does this mean that judges in those countries would reason very differently? Probably not. The framework for their reasoning is different and this strongly affects the way the results of the judicial reasoning are being presented. Facts cannot play a (visible) role in a decision of a court which has the duty to judge the decision of a 144 See on the position of French legal scholars in 19th century and their link with legal practice: Philippe Jestaz & Christophe Jamin, La Doctrine, Paris: Dalloz, 2004, 115-120145 On the problem of (lack of) objectivity in law, see: Jaakko Husa & Mark Van Hoecke (eds.), Objectivity in Law and Legal Reasoning, Oxford: Hart, 2013146 See e.g. Bernard Rudden, ‘Courts and Codes in England, France and Soviet Russia’, 48 Tulane Law Review, 1974, 1010-1028, at 1019-1023 for the style of English and French judicial decisions

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lower court on its procedural and legal merits, not on its evaluation of facts. Previous cases, of course, play an important role in a legal system with binding precedents; in other legal systems precedents certainly are relevant and often an important one, but less visibly.Facts are so important in English judicial decisions because of the weight of precedents: they are only binding if the facts are the same on all relevant points. If a court wishes to avoid a precedent it will argue that there is some important difference between the 'material facts' of the case and those underlying the binding precedent.147

Differences are most notably visible in decisions of the supreme courts, but there is not much difference between a French, German or English decision of a lower court. In all of them facts are important and the applicable legal rules are important. These applicable rules are mostly statutory law, including in the UK nowadays. Lower courts in Germany (or anywhere) do not have time to produce a thorough piece of legal doctrine in their decision and so the style of their judgments may be closer to an English one than to a decision of the Bundesgerichtshof.Of course, there remain important differences in style, partly linked to the differences in the way language is used in the respective cultures: rather abstract, with long and complicated sentences in German; very concrete, using short sentences in English. Sometimes apparently very rational in French, but often using a more literary style too. Again, this is the way thoughts are being expressed in the different (legal) cultures; it does not necessarily mean differences in the way judges reason.

In Western societies there has been a development from legitimation of law on the basis of authority to legitimation on the basis of content. For judicial decisions, this means that the French Cour de cassation still represents the 19th century model in the way its decisions are drafted (apparently pure authority), whereas the German and English decisions, but also the ones of lower French courts and of the supreme administrative court, the Conseil d’Etat, tend rather to convince the reader by giving good reasons. In fact, the French situation is a little complicated, as the Cour de cassation has from the very beginning (end of 18th century) been assisted by advocates general who draft their lengthy opinion, as is also the case with the European Court of Justice, which strongly influences the subsequent decision of the court. In cases where the court follows the opinion of the advocate general, the reasons for its decision may, at least implicitly, be found in the opinion of the advocate general. The court will not repeat them.148

According to Dyzenhaus and Taggart “the emphasis on reaching a result – on resolving the dispute at hand by authoritative decision – rather than on reasoned elaboration is deeply engrained in the common law.” 149 Exactly the same could be said of the French Cour de cassation. However, this is not true for most other courts on the Continent, including lower French courts. Indeed, one of the main tasks of a cassation court is to assess the reasons given

147 Eg Lord Simon in F.A. & A.B. Ltd v Lupton (Inspector of Taxes) House of Lords 21 October 1971, (1972) AC 634, at pp 658-659; Transco Plc v Stockport Metropolitan Borough Council House of Lords 19 November 2003, (2004) 2 AC 1148 See also the analysis by M.Lasser referred to in footnote 62149 David Dyzenhaus & Michael Taggart in Douglas E.Edlin (ed.), Common Law Theory, Cambridge University Press 2007,140

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in attacked decisions. If no adequate reason is given that decision will be quashed. Before 1790 there was no court of cassation in France or any other country on the Continent, nor was there any official publication of court decisions. Hence, on these points there was not much difference between England and the Continent. On both sides of the Channel there must have been a long tradition of authoritative judicial decisions without much reasoning.150, even more as non-professional judges, such as juries, played an important role in the past. In a strongly layered, authoritative society one would not expect it to be otherwise. Relative democratisation after French Revolution changed this in France, and in the territories it occupied, until the defeat of Napoleon in 1815. In other countries such as Britain or Germany something comparable happened later. Today, reasoning has become important for court decisions in any democratic society, and also increasingly for administrative decisions.151

6.4 Legal traditions

World views may vary across cultures and determine the outcome of (legal) reasoning even if, in other ways, the methods of reasoning are the same. Sometimes such views are deeply rooted in a long standing tradition, but in other cases the tradition is of more recent origin, replacing opposite views which were previously dominant. Nevertheless such recent traditions are generally perceived as always having been there, as being part and parcel of the national (or regional) legal culture.

Research in the field of contract interpretation, for instance, has shown how varying views on interpretation have been dominant in the history of English, French and German law.152 Today it seems that ‘objective’ interpretation, looking only at the text of the contract (or statute), is one of the core elements determining the English legal cultural identity, whereas ‘subjective’ interpretation, looking for the real intention of the contracting parties (or legislator), is typically French, the Germans, for their part, taking an intermediate position (what could reasonably have been understood by an outsider).

The explanation for these differences is partly to be found in the underlying theories of meaning. In the English tradition the meaning of a text is to be found in the text itself, not from the way people read it, nor from actual intentions of the legislator or contracting parties as it would appear, for instance, from travaux préparatoires or prior negotiations. Accordingly, references in English judicial decisions will be made to the ordinary meaning or to the technical meaning of words, perhaps hiding some other elements that might have been taken into account in determining this ‘meaning’. On the Continent, there are a variety of theories of meaning, which have been more or less influential in the course of time. The

150 Dyzenhaus and Taggart quote Lord Mansfield in 1790: “Consider what you think justice requires, and decide accordingly. But never give your reasons; for your judgment will probably be right, but your reasons will certainly be wrong.” (o.c., 143-144). It should be noted tha key decision up until the 19th century in the courts of common law was that of the jury.151 See the overview as to Australia, Canada, New Zealand, the UK and the US in Dyzenhaus and Taggart at 144-146152 M.Van Hoecke, ‘Deep Level Comparative Law’ in: M.Van Hoecke (ed.), Epistemology and Methodology of Comparative Law, Oxford: Hart, 2004, 165-195.

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dominant French view is that the meaning has to be derived from the real intention of the legislator, if need be by using travaux préparatoires or other sources to determine this intention. This intended meaning will side-line the apparent meaning of the statute. In Germany the dominant view is more objective. Indeed, it may be difficult to find out the real intention of the legislator, apart from the conclusion that there may be divergent intentions and even conflicting intentions among members of parliament. Thus the focus in Germany is on the meaning that the average citizen would give to the text, not the ordinary (or technical) meaning of each separate word, and not the purely subjective intention of the legislator. These views are not strongly linked to any long standing tradition. From other research, concerning the interpretation of contracts, it transpired that each view can be found in all legal systems at some point of time in history153. Accordingly, it makes it plausible that the currently dominant views on ‘meaning’ influence more the presentation of the legal arguments than the legal reasoning as such. It is interesting to note that in the UK the argument from legislative intention seems most frequently to be used to reinforce the argument from the ordinary meaning or the technical meaning of the words used.154 This means that English judges have, in one way or another, consulted the ‘dictionary meaning’ in order to check that it fits the (real) intention of the legislator.

In practice, however, some intermediate position seems mostly to be taken everywhere. In England the emphasis has shifted from the sheer text to its context, from the ‘objectivity’ of the text to the objectivity of the reasonable outsider:

“The aim of the inquiry is not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant language. The inquiry is objective: the question is what a reasonable person, circumstanced as the actual parties were, would have understood the parties to have meant by the use of specific language.”155

In order to avoid having to question or to change a deeply rooted legal principle or doctrine judges may want to follow other roads to reach the desirable result. For example in the House of Lords’ 2009 decision in Chartbrook v Persimmon the Lords tried to keep up the principle that prior negotiations should not be taken into account when interpreting a contract, whereas they did so in this case, but hiding it behind the remedy of correction of a mistake, supported by documents from the negotiations preceding the signing of the contract.156

In Ruxley v Forsyth (1996) it could be argued that the House of Lords did not change any rule as such; the judges simply reconstructed the facts by shifting the 'damage' from the defective

153 Mark Van Hoecke, ‘Deep Level Comparative Law’, ch.9 in M.Van Hoecke, ed., Epistemology and Methodology of Comparative Law, Oxford: Hart, 2004, 165-195154 Zenon Bankowski & D.Neil MacCormick, ‘Statutory Interpretation in the United Kingdom’, ch.10 in: D.Neil MacCormick & Robert S.Summers (eds.), Interpreting Statutes. A Comparative Study, Aldershot: Dartmouth, 1991, 359-406, 365155 Lord Steyn in Sirius International Insurance Co v FAI General Insurance Ltd, 1 W.L.R., 2004, 3251; for many similar statements in other cases, see Kim Lewison, The Interpretation of Contracts, 6th ed., London: Sweet & Maxwell, 2015, nr.2.03, pp.34-41156 (2009) 1 AC 1101

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pool - held to be an objectively 'reasonable' pool - to the mind of the claimant (mental distress). They thus 'avoided' rather than changed the contractual expectation rule.157

In France, looking for the real, common will of the parties, rather than focusing on the wording of the contract is still imposed by article 1156 of the Civil Code and applied by courts. However, in recent years the approach has been more contextual. The Cour de cassation has developed a theory of ‘contractual coherence’: attention should be paid to the behaviour of the contracting parties, which may have created legitimate expectations with regard to the other parties. Hence, the contractual relations are based not only on a written contract, but also on the behaviour of the contracting parties before the contract is concluded and during its execution.158 This means that the focus is less on what the contracting parties really wanted and more on what a reasonable outsider would think the parties wanted.Eventually, a new provision (art.1188) has been introduced, in 2016, into the French Civil Code, offering a more objective interpretation of contract law, after the traditional rule kept from the 1804 Civil Code159:

“A contract is to be interpreted according to the common intention (will) of the parties rather than stopping at the literal meaning of its terms” (formerly art.1156 Cc)“Where this intention cannot be discerned, a contract is to be interpreted in the sense which a reasonable person placed in the same situation would give to it.” (new provision)

By this new provision French, German and English law have come closer to each other in the field of contract interpretation.

Another example of characteristics from one legal culture being found in another culture at another time in history is the originally strong procedural character of English law. The writ system, known as the forms of action, are comparable to the Roman law mentality about a millennium earlier with its emphasis on actiones and formulae.160

A similar asymmetric historical comparability has been noted by Reinhard Zimmermann as to the strict interpretation of statutes which are contrary to the common law. A similar attitude was adopted by learned lawyers in 13th and 14th century Italy, in 16th century Germany and in England up to now.161

157 See Geoffrey Samuel, Short Introduction to Judging and Legal Reasoning (2016), pp 90-91158 Philippe Delebecque & Frédéric-Jérôme Pansier, Droit des obligations, Contrat et quasi-contrat, 5th ed., Paris: Litec, 2010, 191-193 (nr.305), with many references.159 Art.1188 : « Le contrat s'interprète d'après la commune intention des parties plutôt qu'en s'arrêtant au sens littéral de ses termes. Lorsque cette intention ne peut être décelée, le contrat s'interprète selon le sens que lui donnerait une personne raisonnable placée dans la même situation. »160 A.G.Chloros, ‘Common Law, Civil Law and Socialist Law: Three Leading Systems of the World, Three Kinds of Legal Thought’, The Cambrian Law Review, 1978, 11-26, 15; Peter Stein, ‘Logic and Experience in Roman and Common Law’, 59 Boston University Law Review, 1979, 433-451, at 438-441161 Reinhard Zimmermann, ‘Statuta sunt stricte interpretanda? Statutes and the Common Law: A Continental Perspective’, 56 Cambridge Law Journal, 1997, 315-328

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7 Conclusion

Both in Civil Law and in Common Law legal reasoning has been presented by some as purely deductive and by others as largely inductive.162 In legal theory it has convincingly been shown how deductive reasoning is central to judicial reasoning, once the premises have been determined.163 Some of those premises may be arrived at through inductive reasoning as the examples above on abuse of rights or male adultery have shown. Neil MacCormick made clear that this also applies to Common Law judicial decisions164

Even if today some still try to keep up the appearance of the opposite extremes as linked to those two legal cultures respectively, the reality in legal practice is, and always has been, one of similarity. As Peter Stein wrote:

“Sometimes we common lawyers rely on logic and at other times on experience. Whereas Holmes in 1881 saw logic as a threat, Cardozo in 1921 saw it as one of a number of techniques available to judges.”165

In civil law systems it is not difficult to find judicial decisions or legal writings that exemplify one of those opposite positions, whereas in legal practice judicial decisions will sometimes present themselves as purely logical deductions and at other times be more creative and adapt the law to current needs in society, openly or hidden behind an apparently strict application of the law.Also in the Common Law, sometimes continuity of case law is emphasised, but on other occasions its ability to adapt to changed circumstances and to develop the law is recognised:

“The exceptional category of cases where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation is not the product of Victorian contract theory but the result of evolutionary developments in case law from the 1970s.’166

Of course, the style of drafting judicial decisions is very different on both sides of the Channel, sometimes even among civil law systems. And this creates the impression that the

162 For some overview and defence of an intermediate position, see Richard A.Posner, ‘The Jurisprudence of Skepticism’, 86 Michigan Law Review, 1988, 827-891 163 For the Common Law, see, e.g., Kent Sinclair, ‘Legal Reasoning: in search of an adequate theory of argument’, 59 California Law Review 1971, 821-858164 Neil MacCormick, Legal Reasoning and Legal Theory, Oxford: Clarendon Press, 1978, 28-29. A good and short overview may be found in: Fernando Atria, On Law and Legal Reasoning, Oxford: Hart, 2002, 172-184. In an overview of legal research in the construction area Paul Chynoweth emphasises the deductive nature of legal reasoning and gives the example of an application of the English Housing Grants, Construction and Regeneration Act 1996 (P. Chynoweth, ‘Legal Research’ in: A.Knight & L.Ruddock (eds.), Advanced Research Methods in the Built Environment, Oxford: Wiley-Blackwell, 2008, 28-38, at p.32165 Peter Stein, ‘Logic and Experience in Roman and Common Law’, 59 Boston University Law Review, 1979, 433-451, at 451166 Lord Steyn in Farley v Skinner, House of Lords 11 October 2001, (2001) UKHL 49, under point VI.

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underlying legal reasoning is different. Moreover, each legal system has its own rules, legal sources and traditions. Accordingly the materials with which lawyers from different countries reason are different and the way in which they (have to) present this reasoning may vary considerably.Mitchel Lasser notes

“…the French, American, and EU judicial systems each wrestles with its own particular problematic. Each has an interpretive and conceptual conundrum that it seeks to resolve – or at least to manage – in a way that is characteristic of that system …. This problematic shapes (and is shaped by) the judicial system that addresses it, thereby perpetually creating and recreating that system’s particular argumentative, conceptual, and institutional universe.”167

Diverging arguments and argumentative strategies do not mean that the way judges reason is necessarily different.168 Even traditions, which are presented as part of the national culture “since times immemorial”, often appear to have started rather recently, sometimes replacing an opposite previous tradition, which happens to be currently dominant elsewhere. Of course, the environments are different and, hence, the materials with which judges reason are different and this may create the false impression that judges, and lawyers more generally, would reason differently across borders.

It is striking that in the international debate in legal theory on legal reasoning it is implicitly assumed that the way in which we reason in law is universal, and that this assumption was never challenged. In comparative law, on the other hand, there is a tendency to overemphasise the differences, sometimes even to the point of incommensurability of the respective legal cultures, which then would be unable to simply understand each other. Atiyah and Summers have taken some intermediate, and more realistic, position, when comparing English and American law. They also criticise the presumed universality of legal problems in legal theory as opposed to important differences in legal practice:

“…both countries recognise the concept of binding precedent, but their conceptions of precedent are very different, … The English conception is more formal: precedents bind because of their source, because they are decisions of higher courts, irrespective of their content. In America the authority of precedents is less exclusively source-oriented. Precedents tend to bind because the principles they embody are widely thought to be right and good, and if they are not right and good, they are less likely to be treated as binding.. Thus, in this basic respect, among others, the very nature of law in America is different from what it is in England.”169

The same could be said about the role of precedents on the Continent when compared to England.167 M.de S.O.-l’E. Lasser, Judicial Deliberations, Oxford: OUP, 2004, 23168 Mauro Bussani even writes “that most of the differences between common and civil law can be found in the realm of taxonomies and cultural approaches rather than at the level of the operative rules.”(‘A Streetcar named Desire: The European Civil Code in the Global Legal Order’, 83 Tulane Law Review, 2009, 1083-1101, at 1091) Differences as to reasoning are not mentioned.169 Patrick S.Atiyah & Robert S.Summers, Form and Substance in Anglo-American Law, Oxford: University Press, 1987, 417

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The last sentence in the quote from Atiyah and Summers is worded in very strong – probably too strong – terms, as one could argue that the nature of law, regulating behaviour in society and solving conflicts, is exactly the same in any country. However, it is true that the framework within which lawyers (have to) reason is different and that this will influence legal reasoning, at least at the level of the arguments used and the way it is presented to the outside world, but basically legal reasoning should be comparable on essential points: a combination of inductive and deductive reasoning, steered by values about good and bad, some respect for legal authorities and for tradition, for the coherence of the legal system, but also some openness to social needs. There is some rationality in any reasoning, and certainly in legal reasoning in Western countries today.

Of course, much more could be said about reasoning in general and its rationality. History and anthropology offer many divergent ways of thinking. Both in time and space strong Western rationalism has been an exception, but it has become deeply rooted in our cultures. It is still prevailing in the Western world and has also influenced legal thinking in other cultures, such as Asian and African cultures, which have a less rationalist tradition.170 Even within the Western rationalist tradition there have been, and still are, varying views, such as more formalistic approaches (eg in 19th century Europe) and anti-formalistic, more functional reactions to it (eg in 20th century Europe), but they are mostly developments within those societies and oppositions within them, much less than differences among cultures.171 However, this dimensions of the debate exceed the scope of the present paper, which aimed at offering a more nuanced view on the discussed legal cultures than a superficial approach could suggest.

I hope to have shown that both the optimistic view of legal theorists and the pessimistic view of part of the comparatists does not fit with reality and that the underlying ways of legal reasoning are rather similar across Common Law and Civil Law notwithstanding a different framework for legal reasoning and apparent differences in the way the reasoning is presented. For all legal systems we may accept “that the goal of the careful judge is nothing more pretentious than a reasonable decision.”172 The elements that determine that reasonableness may diverge, but the underlying reasoning will be comparable.

170 For a more detailed analysis, see: Mark Van Hoecke, & Mark Warrington, 'Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law', 47 International and Comparative Law Quarterly, 1998, 495-536, at 502-508171 For an epistemological analysis, see Geoffrey Samuel, A Short Introduction to Judging and to Legal Reasoning, Cheltenham: Edward Elgar, 2016, esp. chapter 4 and 5 at pp 83-154. For a historical analysis, see: James Gordley, The Jurists. A Critical History, Oxford: University Press, 2013172 Richard A.Posner, o.c., 891

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