by Gebhard Rehm
The word ‘reception’ describes an almost ubiquitous legal phenomenon: one legal system borrows individual rules, institutions or even whole areas of law from another and implements them as its own. Often, the state where the reception occurs, also adopts the particular style or methodology of the system which served as the role model. The following samples illustrate a number of the multitudinous instances of reception: the adoption of Romano-canon law (Roman law, canon law) in Europe from about the 12th century onwards (early reception) which reached its peak during the 15th and 16th centuries (main reception); the statutes passed in the federal states of the United States which authorized the application of English law post-independence (so-called ‘reception statutes’); the spreading of the colonial powers’ legal traditions in the subjected territories by means of imposition; and finally the influence exerted by the western legal systems in the transformation states of central and eastern Europe as well as Asia following the political and legal reforms of the early 1990s.
While the adoption of a legal system which is defunct (such as the reception of Roman law in Europe) can be described as a process of ‘vertical reception’, ‘horizontal reception’ occurs where the stimulus comes from a legal system which is still operative. It is useful to distinguish these two forms in order to examine their different impacts, especially the inherently passive role of the model legal system in the case of a vertical reception. Yet it is, of course, not always possible to distinguish neatly between the two forms, such as where a state follows the example of another which has—in turn—modelled its law on a legal system of the past.
b) Scope of reception
Usually the process of reception is confined to individual areas of law or even to specific concepts or institutions. This is exemplified by the absorption of the so-called business judgment rule into German company law. In exceptional situations, however, a full reception takes place. A well-known example is the complete adoption by Turkey of the Swiss Civil Code (ZGB) and the Swiss Code of Obligations (OR) in 1926 (Turkish Civil Code and the Turkish Code of Obligations). Between these two extremes, we find the inspirational influence of the French Code civil and the German Bürgerliches Gesetzbuch (BGB) on numerous European and non-European legal systems. Here reception is neither a word-for-word translation, nor is it restricted to the one-off adoption of individual rules and principles.
c) The subject matter of reception
Often, when a reception occurs, the state concerned emulates a particular style or the methodology of the legal system it has chosen as its model. Reception is not confined to the adoption of foreign statutory law; it may also consist of the adoption of foreign case law, although such borrowings tend to be less evident. The Scottish legal scholar Alan Watson has coined the term ‘legal transplants’ so as to explain better the reception processes. Based on an analysis of Roman law, he demonstrates how extensively its concepts have become engrained in various legal systems—including some systems which one would not ordinarily count amongst those influenced by Roman law. Other suggested phrases for capturing the reception process include: ‘diffusion’, ‘legal transfer’, ‘influence’, ‘inspiration’, ‘export’ or ‘cross-fertilization’. They all describe or highlight different facets of the same phenomenon.
2. The reception of Roman law as an historical archetype
The reception process which features most prominently in the academic debate is that of Roman law in Europe, whose significance is certainly justified in light of its sweeping and enduring effect on numerous European states which later themselves became seedbeds for various non-European legal systems and which have continuously influenced one another. The reception of Roman law thus deserves particular attention. While one must not ignore similar historical or on-going processes, it neatly exhibits many of the pre-conditions as well as the effects and the mechanisms of a reception process.
a) Reasons for the reception of Roman law and its stages
After the ‘rediscovery’ of the Corpus Juris Civilis, the law imparted therein (ie the law of both the Western and the Eastern Empire) was interpreted and expanded upon by the medieval glossators and commentators. Together with the law of the Roman Church (canon law), it became a subject of research and teaching at universities—hence the term ‘learned law’. Canon law was of particular importance at the time. Historically it extended into many more walks of life than is the case in modern European legal systems which have been secularized either completely or, at any rate, to a large extent. Family law, the law of succession and contract law (legal instruments, prohibition of interest) were thus mainly administered by canon lawyers. From the Italian universities (Bologna, Padua, Naples, Piacenza), the study and teaching of Roman law quickly spread to France (Montpellier, Toulouse, Orléans, Avignon), Spain (Valencia, Salamanca, Lerida), England (Oxford, Cambridge) and Bohemia (Prague). Later, Roman law also became important in universities in Germany, Switzerland and the Netherlands, and—from the late 17th century onwards—in Scandinavia.
For a long time, it was generally thought to be the Emperor Lothar von Supplinburg who introduced Roman law into Germany by an imperial statute of 1135. Yet this assumption is incorrect; it was first refuted by Hermann Conring in 1643, a refutation subsequently confirmed by historical research (hence the German term Lotharische Legende—ie ‘Lotharian legend’). Roman law, after all, infiltrated even those countries which were not subjected to imperial authority. In actual fact, the reception of Roman law was a complex historical process spanning several centuries. Over the course of the process, the principles, methods and modes of arguing of Romano-canon law (so-called ius commune) gradually permeated the relevant European legal systems via the universities. It began with lawyers educated at Italian universities becoming judges and administrative officials or entering legal practice as advocates, bringing with them the medieval (and not necessarily the classical) Roman law. They thus imported it into their home countries and into the Church jurisprudence long before Roman law was properly taught in any of these legal systems.
There, Roman law was amalgamated with the locally applicable written or customary law (the so-called ius proprium). Yet this synthesis did not happen uniformly throughout Europe, but depended on the circumstances prevailing in different states and cities and on the protagonists dominating there. Rules and patterns of argument were discussed and developed further by legal scholars and practitioners (including the courts), thereby moulding them to fit the exact circumstances of their time and place. Given its high degree of systematization and abstraction, it was often easier to derive appropriate solutions from the ius commune than from the local ius proprium. The latter did not normally display much structure or follow any particular guiding principle. There is now almost universal consensus that the principal effect of the reception therefore lay in the ‘scientification of legal life’ (Franz Wieacker). In Germany, where the traditional law was fragmented and virtually without structure, the logical and well-ordered Roman law appeared superior, especially in light of the ever-increasing complexity of social life.
Besides its role in systematizing the law, Roman law was also used to fill gaps in the existing law and to provide a new basis for the legitimacy of local law (the scope and interpretation of which was frequently very uncertain). The law of some German areas, for example, made no provision whatsoever for sales warranties (and failed even to allow for a reduction of the purchase price price reduction equivalent to the Roman actio quanti minoris). Thus, it is unsurprising that the aedilitian remedies of Roman law (actio quanti minoris for a reduction of the purchase price, or outright termination by means of the actio redhibitoria) were readily adopted. Yet the ius commune was also enriched by absorbing individual aspects of local or regional law, especially in respect of new trade practices. As a result, the existing local systems were not completely ousted by Roman law. In fact, Roman law was sometimes superseded and even reversed. For example, in some places termination of a sales contract was refused in the case of minor defects (contrary to the Roman position).
b) Influence in different legal systems
The influence of Roman law differs markedly as between the different legal systems. In Germany, it was a malleable tool for legal harmonization after the demise of imperial authority following the end of the Hohenstaufen dynasty and the ensuing legal fragmentation. Here Roman law could usefully fill a noticeable and troublesome vacuum. In England, by way of contrast, where Roman law was for some time taught at the universities, its influence on the common law was not nearly as strong. Although recent research shows that Roman law did actually have a substantial impact on English law, its reception was much less intense than on the Continent. This is because—until well into the 19th century—legal education in England was a matter for the Inns of Court, not one for the universities. Regardless of the fact that the system of Roman law was taught at the universities, legal practice looked primarily towards the exigencies of concrete cases. The powerful position of the English kings—in conjunction with the emergence of a strong and self-confident class of lawyers—had, moreover, prevented a patchwork of legal systems, as had been the case in Germany. There was thus less need to have recourse to Roman law as a means of inspiration and as an aid to systematization.
In France, Roman law played a significant role (not least because the whole of southern France was under its influence), but French law is nevertheless not shaped by it to the extent that German law is. The Germanic rules of customary law pervading northern France (the so-called coutumes), which were subsequently confirmed, strengthened and—most importantly—unified by the Royal Ordonnances, constituted a bar to complete reception along the German lines. They are still distinctly recognizable within the Code civil of 1804. Furthermore, it is likely that (just as in England) a significant part was played by the influential French courts, advocates and other lawyers. Their vested interest in keeping the traditional law with which they were acquainted and which they had developed over many years of practical application and academic study, prevented French law from being replaced by Roman law. Powerful courts and legal practitioners had established themselves centrally in Paris and London. There were no similarly influential equivalents in Germany. This is partly due to the Holy Roman Empire’s distinctly federal structure. And even the Reichskammergericht (Imperial Chamber Court), established in 1495, cannot be compared with the centralized English or French institutions for two main reasons. Firstly, electors and the territorial rulers were able to exclude its jurisdiction. Secondly, the number of cases the Court decided (often without publishing them) was too small to have any substantial impact on lower courts. Last but not least, it was the fact that the Holy Roman Empire saw itself as the successor to the Roman Empire which gave historical legitimacy to legal continuity with Rome in such a way that countries with a less strong connection did not and could not emulate. The Renaissance’s esteem for ancient culture and ideas in fact also extended to the law.
c) The ‘maturing’ of Roman law
Having peaked during the Renaissance, the reception of Roman law later took the form of an usus modernus, a school of thinking developed mainly in France and the Netherlands and dominating legal discourse during the late 17th and the 18th centuries. Its aim was to reconcile traditional Roman law with the conventional concepts of national legal systems. The reason why traditional Roman law had been weakened was—at least as far as Germany was concerned—the refutation of the above-mentioned Lotharische Legende (ie the assumption that the application of Roman law had been authorized by imperial statute). The basis for the legitimacy of Roman law replacing local customary law was thus called into question. It was therefore necessary to prove that Roman law had actually replaced the previous customary law. To facilitate this almost impossible task, an ingenuous line of argument was devised. Ever since the establishment of the Reichskammergericht in 1495, there had been a rule (the significance of which has, however, been increasingly disputed in recent years) known as fundata intentio. It established a rebuttable presumption to the effect that all rules of the Corpus Juris Civilis had been absorbed into national law to the exclusion of any contrary customary law. By emphasizing this rule, it was possible to render the theoretical subsidiarity of Roman law practically irrelevant.
With the advent of natural law (or law of reason), however, the significance of Roman law waned even further. The door was thrown open for various codification projects, although these were mostly slow to break with the Roman legal tradition. This period, during which the substantive importance of Roman law temporarily decreased, saw the rise of lawyers propagating a return to the traditions of customary law. The conflict eventually culminated in the 19th century dispute between German lawyers over whether the reception of Roman law had in truth entailed an unacceptable degree of foreign infiltration, whether it had been a ‘national disaster’, and whether German and Roman law were, fundamentally, ‘irreconcilable enemies’. Invoking the Volksgeist (ie ‘people’s spirit’) which Friedrich Carl von Savigny’s historical school of jurisprudence had identified as a fundamental source of law, German scholars denounced Roman legal rules as alien to the people (volksfremd) and demanded that Germanic rules be applied in their stead. Savigny himself however never shared this opinion. It was also misplaced in light of the fact that there had historically never been a uniform set of Germanic rules.
Ultimately, this view did not prevail, but it did manage to delay the enactment of the BGB to a certain extent. Under the strong influence of pandectism (Pandektensystem) (and therefore indirectly also the reception movement), and more so than other national codifications of private law, the BGB actually absorbed and retained many of the ideas, rules and concepts of Roman law several centuries after the ‘true’ reception had actually taken place. Yet the Roman character of the BGB depends only partly on the adoption of substantive Roman legal rules governing certain core areas (such as contract law and property law). Even where Germanic principles have left their imprint on the code (especially in the field of family law), the pointedly scientific method of the BGB—much criticized as it is—shows that it is a child of Roman law.
3. Effects of reception
Reception does not automatically lead to the adopting state assimilating its legal system to that prevailing in the state from which the law was derived, especially since the ‘foreign’ rules will seldom be applied in the same manner. Instead, the adopted law will typically develop a life of its own under the influence of new political, economic, social, linguistic and cultural surroundings. As law in action, it will adjust to them. Even where the courts, academics and the other protagonists of legal life are fully aware of the reception process, the origin of the adopted rule in a foreign jurisdiction tends—over the course of time—to be increasingly neglected. Its ancestry then becomes largely irrelevant for its further development. Nevertheless, a reception will often result in the emergence of a common legal ‘language’. The lasting effect of the reception of Roman law in Europe consisted of precisely this: although the extent of the reception differed as between the various states, there developed over the course of many centuries a ius commune applicable in large parts of (continental) Europe and Scotland. Similar legal norms and institutions were applied and recognized, at least in part, and legal thought rested on similar principles and ideals, right up to the age of the great European codifications (eg Code civil, Allgemeines Bürgerliches Gesetzbuch (ABGB), Bürgerliches Gesetzbuch (BGB) and Swiss Civil Code (ZGB)). A comparable process is nowadays evident in company law and the law relating to the regulation of capital markets. Throughout the world, the subject is almost completely dominated by Anglo-American legal theory and practice, especially because of a wealth of experience and the predominance of US and English lawyers in mergers and acquisitions, corporate finance and corporate governance.
A special feature of the vertical reception of Roman law at least in Germany was that, for a long time, Roman law itself remained the direct source of legitimacy and hence of the applicable law (as explained above). It is, however, unclear whether medieval German lawyers handled Roman law in the same way as their Roman predecessors had done in ancient Rome. What is, at any rate, clear is that the rate of reception slowed down once the belief in the direct applicability of Roman law became unsustainable. By then however, Roman ideas had already permeated German legal thinking to a degree that made it impossible completely to reverse the infiltration process.
In conclusion, the notion of a ‘legal transplant’ is misleading if it is taken to suggest that a reception of law leads to the same legal position in the recipient legal system as in the parent system. Due to the political, economic, technological, religious and linguistic differences existing between the two systems, such cases will be extremely rare. With this caveat in mind, the transplant metaphor is nevertheless helpful. It allows us to describe the origin of particular legal institutions in foreign legal systems and can thus provide essential contextual information. There is no doubt that legal systems do look to (near and distant) places for inspiration and for suitable prototypes to copy. It makes little sense to reinvent the wheel.
4. Motivating factors, reasons and conditions for success
a) Motivating factors and reasons for reception
There are several different—though frequently concurrent—reasons why a legislature, or other agents shaping the law, may consciously opt for the reception of foreign law (always assuming that a legal system has a choice in these matters, ie that the law is not forced upon it as in the case of a colony). In drafting statutes, the draftsmen of new laws will often have insufficient time or expertise for in-depth preparatory work. This was particularly noticeable in recent decades, when the legal systems of states which had belonged to the USSR (Commonwealth of Independent States (CIS)) as well as those European states which had formerly been under Soviet influence were suddenly reformed. It was probably equally true of small medieval states. Occasionally, international organizations or foreign states promoting a particular law reform project will also exert more than merely ‘gentle pressure’.
Some legal systems rely on the (actual or alleged) superior quality of foreign or historically proven law. That was certainly one main reason why Roman law was so successful in Germany. In highly fragmented and heterogeneous legal systems, moreover, foreign or historical role models can serve as compromise solutions to expedite legal unification. The latter is usually desired or even necessitated in times of rapid economic and social development, especially in states whose legal system revolves around statutes. While a reception can also involve the adoption of case law, it is normally more prominent (at least on a superficial level) in legal systems predominantly based on statutory regulation. From a systematic point of view, it is simply easier to analyse and integrate a structured legislative regime than a bundle of judicial decisions.
Finally, the element of chance plays its part. For example, the decision-makers of one legal system may have been trained in another, which can thereby attain the status of a role model for reception purposes. Thus, the adoption of Swiss law in Turkey is sometimes related to the fact that the Minister of Justice responsible for the reform had been educated in Switzerland. Others assume that the explanation lies in the familiarity of Turkish diplomats with the French tongue (one of Switzerland’s official languages). Yet many instances of reception are not triggered by any conscious decision. Rather, they are a consequence of political, philosophical, religious, economic or technological changes. It is therefore virtually impossible to proffer a uniform ‘theory of reception’.
b) Conditions for a successful reception
Given the difficulties in defining an appropriate yardstick to measure how successful a reception has been, it is extremely hard to formulate the conditions for such success. There are, nonetheless, a few instances in which it can be said that the reception of foreign law and especially of foreign codifications has been particularly successful. Numerous states have looked to the French Code civil, the Swiss Civil Code (ZGB) and the German Bürgerliches Gesetzbuch (BGB) for inspiration when preparing their own national codifications of private law. Generally speaking, however, reception processes would seem to be most successful where they have been used to fill a gap in a state’s existing law (often due to a lack of legal uniformity or legal certainty) or where a state succeeds in educating its legal practitioners as to the proper application of the adopted rules and where—additionally—these rules do not differ dramatically from the law previously applied.
Without such integrative steps, the acceptance of foreign rules tends to take a long time. Even though the Swiss Civil Code (ZGB) and the Swiss Code of Obligations (OR) were enacted word for word in Turkey, legal practice remained initially unaffected. Only very gradually did the rules manage to establish themselves in the public consciousness, as the circumstances of social life slowly changed. However, complete identification with the law in action of Switzerland has still not been achieved (particularly in the tradition-oriented areas of family law and the law of succession). In recent years, much has been made of the ‘economic efficiency’ of an adopted legal institution as a factor influencing the reception’s success in the importing state. Yet historical evidence for this hypothesis is sparse; most authors, for example, expressly deny any causal nexus between economic efficiency and the reception of Roman law in Germany. With the exception perhaps of a few discrete areas, this explanation has little to commend itself. It is virtually impossible to capture juristic institutions in economic terms given that legal reality is characterized by the very opposite of perfect market conditions (namely factors such as inadequate information, tradition, and religion).
Wolfgang Kunkel, ‘Das Wesen der Rezeption des römischen Rechts (1957) 1 Heidelberger Jahrbücher 1; Franz Wieacker, Privatrechtsgeschichte der Neuzeit (1967) 97 ff; Franz Wieacker, ‘Zum heutigen Stand der Rezeptionsforschung’ in Festschrift Joseph Klein (1967) 187; Eduard E Hirsch, Rezeption als sozialer Prozess (1981); Alan Watson, Legal Transplants (1993); Pierre Legrand, ‘The Impossibility of Legal Transplants’ (1997) 4 MJ 111; Hans Schlosser, Grundzüge der Neueren Privatrechtsgeschichte (2005) 1 ff, 26 ff; Jan von Hein, Die Rezeption US-amerikanischen Gesellschaftsrechts in Deutschland (2008); Michele Graziadei, ‘Comparative Law as the Study of Transplants and Receptions’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (2008), 441; Gebhard Rehm, ‘Rechtstransplantate als Instrumente der Rechtsreform und -transformation’ (2008) 72 RabelsZ 1.