Legal Reasoning and Legal Integration
| Author | Jaap Hage |
| DOI | 10.1177/1023263X0301000104 |
| Published date | 01 March 2003 |
| Date | 01 March 2003 |
Jaap Hage∗
10 MJ 1 (2003) 67
Legal Reasoning and Legal Integration
Summary
According to Legrand, harmonization of European private law by means of a
European Civil Code would not work, because of the different legal cultures
(mentalités) within which such a code would have to operate. In the civil law
tradition, legal reasoning on the basis of such a code would be deductive in the
sense of the application of rules that are posited prior to the cases to which they
should be applied. In the common law tradition, the starting point of legal
reasoning is in the cases themselves. As a consequence, common law reasoning
would abstract less from the peculiarities of individual cases.
The main point of this paper is that Legrand’s picture of civil law reasoning is
based on the subsumption model of rule application, which does not allow
adaptation of the law to the needs of concrete cases other than through the
limited possibilities of interpretation. It is argued that this picture is wrong. As
an alternative, the reason-based model of rule application is proposed, which
allows legal decision makers much more leeway to tailor the law to the needs of
concrete cases. In a comparison with case-based reasoning it is argued that
rule-based reasoning, according to the reason-based model, gives the decision
maker the same leeway.
The final conclusion is that possible differences in legal culture between the civil
law and the common law tradition are not rooted in the distinction between rule-
based reasoning and case-based reasoning, and are therefore merely contingent.
There is no reason why the introduction of a European Civil Code could not
∗ Lecturer in Jurisprudence at Maastricht University (NL). The author wishes to thank Jan Smits for
valuable comments that made it possible to clarify some obscure parts in the argument of this paper.
Whether this attempt to clarify has succeeded is left to the judgment of the reader. In any case, the
author takes sole responsibility for any remaining obscurities and errors.
Legal Reasoning and Legal Integration
68 10 MJ 1 (2003)
overcome the differences between the two traditions. Whether this would be
desirable is a different question.
§ 1. Introduction
Asking the right question is half of the answer. This valuable insight is not only
applicable to problems in our daily lives, but also – and maybe even more so – in
academic research. Jurisprudence is no exception here, and many a jurisprudential
discussion has benefited from somebody asking the right questions. In the author’s
opinion, the main virtue of legal theory in its old fashioned sense of applying techniques
from analytical philosophy to jurisprudential issues, is that it helps to ask the right
questions. Given the right questions, ‘ordinary’ legal knowledge often suffices to
answer them. The purpose of this paper is to illustrate this general point by showing
how techniques from modern legal logic can benefit the actual discussion about
European legal integration.
A few years ago, Pierre Legrand published an eloquent argument against the
introduction of a European Civil Code as a means to achieve integration of European
private law.1 His argument rests on two pillars. One is that integration is not desirable.
The other is that integration cannot be achieved by means of a uniform European Civil
Code. Legrand criticizes the proposal in favour of a European Civil Code on four
grounds, one of which (the relevant one for our purposes) is that such a code ‘would fail
to effect the universal reach for which it stands’. The presence of one and the same code
cannot lead to the same law if this code is to operate within two fundamentally different
legal cultures, namely the cultures of civil law and of common law.
Legrand writes in this connection of two different mentalités. On the one hand there is
the mentalité of the civil law tradition. According to Legrand, using an analysis of
Pitkin, the civil law tradition takes abstract rules as the starting point for decision
making and sees decision making as ‘deductive in the sense that the rules that structure
it are posited prior to the practices that apply it’.2 The common law tradition, on the
contrary, takes its starting point in concrete cases. When reference is made to an old
case in order to decide a new one, the old case is not abstracted into a general rule, but
is rather taken integrally, that is with all its factual details in place. Legrand quotes
Samuel in this connection: ‘legal development is not a matter of inducing rules, terms or
institutions out of a number of factual situations. Rather it is a matter of pushing
outwards from within the facts themselves.’3
1. P. Legrand, ‘Against a European Civil Code’, 60 Modern Law Review 1 (1997), 44-63.
2. Compare in this connection also Jan Smits, The Making of European Private Law, (Intersentia, 2002),
82 on the syllogistic nature of legal reasoning in the civil law tradition.
3. P. Legrand, 60 Modern Law Review 1 (1997), 50
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