Legal terminology and comparative law: the role of the operational rules. Prof. Dr. Elena Ioriatti Trento University (Italy), Faculty of Law
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1 Legal terminology and comparative law: the role of the operational rules Prof. Dr. Elena Ioriatti Trento University (Italy), Faculty of Law
2 Comparative Law Comparative law as a science (20 century) «Society of comparative law» (London) and «Société de Legislation Comparée» (Paris) Comparative law was introduced in Italy in the 20 Century by prof. Rodolfo Sacco (University of Turin, Accademia Nazionale dei Lincei) Academic chairs in comparative law
3 Comparative Law Science Knowledge Methodology
4 Knowledge Data = legal rules (norms)
5 The operational rules Show as the system really works...beyond definitions and the legal language -
6 A) Methodology: the Theory of the Formants Legislation, constitutions, decrees (legislative formant) Case law (case law formant) Scholarly writtings (doctrinal formant) R. SACCO, Legal Formants: A Dynamic Approach To Comparative Law, in The American Journal of Comparative Law, Volume 39, Issue 1, 1 January 1991, p. 1 ff.
7 The formants Legal rules can be found in the different formants of the various countries (legal systems)
8 Example 1: l erede apparente A person who believes himself to be heir disposes of property (he has inherited) to a third person, who is in good faith. The transfer is valid in Italy, under the definition «trasferimento dell erede apparente al terzo») R. SACCO, Legal Formants: A Dynamic Approach To Comparative Law, in The American Journal of Comparative Law, Volume 39, January 1991.
9 The formants Italy Code art. 534: yes Case law: yes Doctrine: yes France Code: X* Case law: yes Doctrine: no Belgium Code: X Case law: no Doctrine: no *This is a theoretical case. Note that the legislative formant might have changed after the French reform of the law of contract of 2016.
10 The operational rules The definition «trasferimento dell erede apparente al terzo» is present only in the Italian legal language, but the same operational rule exists in France too (case law formant).
11 The operational rules The theory of the formants draws a distinction between the operational (working rules), the real practices of a legal system and the definitions (legal language), the symbolic, linguistic set utilized by the jurists to decribe the legal rules.
12 Example 2: medical malpractice In American law medical malpractice is classified as a Tort, whereas in France it is considered a Breach of Contrac. French law on contractual liability is strict, so that the victim does not need to prove that the doctor was in fault. In Usa tortious law medical malpractice is based so the victim has to prove the doctor s fault. on negligence and The two systems are apparently at opposite P.G. Monateri, The ABC of comparative law: legal formants and comparison, at
13 Medical malpractice French case law has introduced a distinction between two different kind of contractual obligations : obligations de moyen and obligations de resultat: in routine medical operations a doctor is under a duty de resultat and so the victim of a damage has not to prove the fault of the doctor; in non routine operations the doctor is under a duty de moyen, which means that he just promised to use his professional skill, and so the victim of a damange must prove a doctor's fault, to be compensated. P.G. Monateri, The ABC of comparative law: legal formants and comparison, at mparison
14 Medical malpractice American courts (case law): in routine medical operations the courts apply the doctrine res ipsa loquitur, so the victim's damage is evidence of the doctor's fault and the victim is not required to prove it. Res ipsa loquitur is not applied in non routine operations, and so the victim must prove that the doctor was in fault. P.G. Monateri, The ABC of comparative law: legal formants and comparison, at nd_comparison
15 The operational rules in medical malpractice The definitions (legal language) are different Usa: tort (tortius iability) France: contract (contractual liability).and assume different legal rules: France: victim has not to prove the doctor s fault; Usa: victim needs to prove the doctor s fault. The operative, working rules are the same in Usa and France: In routine cases victims do not need to prove the fault. In non routine cases victims must prove the doctor s fault.
16 B) Methodology: the Factual approach How operational rules are collected - Questionnaires; - National answers and reports; - Final reports.
17 The Factual approach Level 1: Mr. White believes himself to be heir and disposes of property (he has inherited) to Mr. Blue, who is in good faith. 1: Is this transfer of property valid in your legal system? 2. If yes, where is the rule formulated? 3. If no, can Mr. White recover property? If yes, under which conditions? Opertive rules of all the countries (legal systems) involved.
18 C) Methodology: genotypes and fenotypes The construction of the common system Genotype Elements that are fundamental of a specific category. Fenotype The real characters of the operational rules present in the different legal systems. When some of those characters coincide with the fondamental elements of the genotype, the operational rule belongs to that specific category. R. Sacco, Legal Formants: A Dynamic Approach To Comparative Law, in The American Journal of Comparative Law, Volume 39, January 1991.
19 Genotypes and fenotypes. Example n. 1 The Construction of the common system GENOTYPE - Transfer of property by someone acting as an heir. - Good faith of the receiving person. FENOTYPE All the countries in which these elements are present...regardless other characters, for instance the good/bad faith of the pretended heir and other detalis.
20 The Factual approach Level 2: In 2017 Mr. Green underwent an appendectomy (routine operation) but contracted an infection during the operation. 1. Can Mr. Green take action for compensation against the doctor? 2. If yes, what is Mr. Green required to prove? 3. Particularly, must Mr. Green prove the doctor s fault?
21 The Factual approach Level 2: In 2017 Mr. Green underwent an heart transplant (non routine operation) but after the surgery he needed the support of the heart machine anyway. 1. Can Mr. Green take action for compensation against the doctor? 2. If yes, what is Mr. Green required to prove? 3. Particularly, must Mr, Green prove the doctor s fault?
22 Genotypes and fenotypes. Example n. 2 The constraction of the common system. GENOTYPE Routine operations Non routine operations no doctor s fault to be proved doctor s fault to be proved Fenotype All the countries in which these elements are present...regardless the legal classification of the responsability is tort or contract, regardless the kind of action, regardless the prescription.
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