The crisis of international relations and international law, together with the rising anti-EU forces, questions the academic imaginary about the integration of legal systems. This post explains how legal academia articulated such an imaginary, sheds light on some decisive factors that it overlooked, and argues for a more nuanced and respectful understanding of how legal systems operate.

Legal Development and the Call for Judicial Transplants

A few decades ago, the notion and practice of transnational legal transplants, borrowings, and dialogues were among the defining characteristics of constitutionalism as a field of study. Legal theoreticians and practitioners were keen to partner in developing coordinated methods of legal analysis and interpretation and distilling a series of rights and principles that would apply across jurisdictions. Looking abroad for inspiration and solutions to common problems was even encouraged among judges. Synthesizing different strands of legal thinking to bring them together was one of the drivers of comparative law studies, sparking interest in foreign law among scholars. International and supranational courts became hotspots of such practices, as their bird’s eye view on multiple national jurisdictions allowed them to investigate several domestic regimes at once and encouraged them to mutually borrow solutions and ideas from each other.

The U.S. largely seemed an outlier in this scenario. The inward-looking legal education of American lawyers, the precarious status of international law in U.S. Courts, Justice Scalia’s vitriolic criticisms that awaited his fellow Justices on the Supreme Court each time they cited or drew from foreign jurisdictions, and even the threats of impeachment that were directed against the Justices that indulged in such a practice placed U.S. legal practice and theory on a very different footing.

After all, the notions and practices of transnational legal and judicial dialogue and transplants were trying to respond to urgent needs. Globalization had given individual, social, and economic life a new horizon—one that went well beyond national borders. New ideas and lifestyles called for the law to adapt to new circumstances, while debates abounded about the pace, the extent, and the content of adaptation. Expecting the legislative process to match the speed of social change was unrealistic: judges and academics felt they needed to promptly provide support and fill legal vacuums. Courts operating in post-Communist states set out to rejuvenate domestic laws by injecting principles and interpretive patterns that were common in liberal democracies, without having to wait for the new legal and political infrastructures to change national constitutions and/or domestic statutes. Supranational and international institutions that national states had erected similarly felt they needed to move forward and secure legal development and coordination, even beyond what states initially intended. All in all, the practice of judicial dialogue was largely rooted in the belief that economic, social, and political progress needed legal change and that legal change required progressive interpretation.

Circumstances seemed to have made the distinction between civil law and common law obsolete. An American intellectual titan such as Guido Calabresi started a decades-long conversation with his book on Common Law for the Age of Statutes, whichaddressed the rise of statutes in the United States and what it meant for judicial interpretation, while academics and practitioners in civil law countries, also under the pressure of the EU Court of Justice and the European Court of Human Rights, understood that case law was becoming a protagonist in their jurisdictions.

The Winter of Judicial Dialogues

After a few decades, the almost universal hype for legal transplants has largely waned. When the hype wanes, two explanations are possible. Aspiration may have materialized, making hopes a reality. Or vice versa, reality may have disproved or at least eroded the ideal. Given the current diplomatic clashes and the crises of international and supranational institutions, the case of judicial and legal dialogue seems to fall within the second option.

Many judges still believe that judicial dialogues are necessary; many academics still craft legal theories drawing from multiple legal universes and argue that common law and civil law deal with similar problems in approximately the same way. But they are countered by larger numbers of their peers, who are skeptical of inter-jurisdictional borrowings and do not believe that different legal regimes can or should assimilate. The group of post-Scalia originalists who disapprove foreign citations has skyrocketed in the U.S. and is drawing attention also outside. Incursions in foreign law in the U.S. Supreme Court have virtually disappeared. Legal resistance to the amalgamation of domestic law with non-national law has appeared in Eastern Europe. Brexit was a huge blow to the ideal of legal integration and the prospect of reconciling common law and common law jurisdictions. British proposals to withdraw from the European Convention of Human Rights or to mitigate the impact of its Court’s case law still linger on pan-European integration.

Multiple reasons that cannot be dealt with here have played an important role in this sea-change, which has made an almost universally shared ideal and a common enterprise a controversial aspiration and a contested project. A new emphasis on national identity, the corrosion of interstate relationships, the rise of anti-globalization movements, widespread hostility toward judicial overreach, and the capture of some domestic apex courts are all extremely relevant aspects of this new scenario. However, one specific reason, which was mostly voiced by Brexiteers and is now revamped by British critics of the European Court of Human Rights, stands out for its legal salience.

Underneath most of the efforts to bring the laws of different states closer and generate a uniform set of principles, values, rights, and patterns of interpretation lies the implicit belief that civil law and common law, the most successful legal models on a global scale, are fairly similar and can be brought together. They would be close enough so that it would be possible to tie them together through judicial practice. This possibility would have even become a necessity since common law and civil law share the legal space of the EU and have both been influential in the development of the European Court of Human Rights case law.

At this junction, however, things get complicated. The emphasis on legal rapprochement and the call to generate a discrete body of law and a judicial mentality that would address similar issues in different courts according to the same principles and with the view of filling legislative gaps in the same ways have overlooked some critical aspects of both common law and civil law traditions. They may subscribe to some common principles and partially operate according to the same logic but evolve and understand constitutional and statutory interpretation differently.

Given word constraints, I will limit myself to sketching out what distinguishes common law from civil law in the field of legal interpretation and development.

Misinterpreting Legal Interpretation and Evolution

Adapting to changing circumstances is difficult; and lawyers and judges have often struggled to deal with unprecedented issues or to make sense of shifting legal landscapes. But how legal theorists and practitioners have handled these problems has not been the same across jurisdictions. As I aim to show in this paper, common law and civil law countries have often taken different approaches, although a superficial look may suggest otherwise.

In both civil law and common law jurisdictions, massaging existing laws and case laws to align them to new needs, heeding societal calls for change, and embracing new values has been common practice. Looking abroad for inspiration, matching the performances of other countries in the field of rights and interpretation patterns, and amalgamating different legal regimes in order to progress towards a shared standard have married the notion of legal progress with that of legal integration. In both legal universes, judges and academics who have espoused a globalist understanding of legal institutions have often argued for activist approaches to adjudication and for patterns of legal interpretation that would update the meaning of existing statutes or constitutional provisions or tweak settled case law in light of changing scenarios. This approach has partnered with the purposivist style of interpretation of EU law embraced by the EU Court of Justice and with the doctrine of the European Court of Human Rights that has understood the European Convention as a “living instrument” that can adapt through the passing of time.

However, there is more to this than meets the eye. This evolutionary path is not uniformly shared among common and civil law practitioners, academics, and jurisdictions. The reception of such a path within several common law countries has been hugely different from what has happened in some civil law countries.

Common-law practitioners and theorists are often very wary of the perils of changing the law by reversing precedents or reinterpreting statutes or constitutional provisions. When common law courts make their jurisprudence evolve, dissenters and academics often criticize them, arguing that judges should not short-circuit the political process and jeopardize social reliance on precedents for the sake of pursuing progress and legal change. Precedents as well as the wording of statutes and constitutional provisions—they maintain—severely limit judicial lawmaking, and patrol the division of labor between courts and lawmakers.

Civil-law judges live in a very different universe, for which the historical trajectory of French legal culture is exemplary. For roughly a century, Its Code Civil (1801), which was initially conceived to ensure legal certainty and strip judges of their then ample discretion, has been advocating a progressive approach to legislative interpretation. Therefore, French academia has been inviting legal change through judicial lawmaking rather than criticizing it. Its approach to judicial interpretation, as well as that of many more civil law countries in Europe and elsewhere, has resonated much more with the forward-looking approach of the two European Courts than with the controversial role of legal innovation through adjudication in common law courts.

What Is at Stake: Rethinking Legal Science

The collapse of the global community of courts, judges, and academics has many reasons, as I mentioned at the beginning. Political, institutional, and ideological forces are at work, distancing legal orders from each other, immunizing state sovereignty from foreign, supranational, and international influences, and pushing countries to look inward. Outward-looking institutions, courts, and academics often counter these forces, arguing that these new phenomena are hijacking the decades-long project that has boosted transnational borrowings, supranational, and international institutions, and projected jurists and courts on a global plane.

However, the crisis of judicial borrowing and the progressive approach to legal interpretation should remind academics that the movement that has driven the globalization of constitutional law and its forward-looking model of legal interpretation has been based on certain ideological premises and has been pursuing specific political and institutional goals. These ideals may be good or even necessary but they should not be considered as the standard mindset for legal scholars across jurisdictions. They are a legitimate intellectual option, not the default position.

Andrea Pin (andrea.pin@unipd.it) is full professor of Comparative Law at the University of Padova (Italy). A former clerk at the Italian Constitutional Court, he is now McDonald Distinguished Senior Fellow at the Center for the Study of Law and Religion, Emory University. He has authored five books, the latest of which is Religious Freedom without the Rule of Law: The Constitutional Odysseys of Afghanistan, Egypt, and Iraq and the Fate of the Middle East (Brill 2024).