The Common Core Method and the Theory of Legal Formants

Sacco’s dissectioning the legal rule in a number of legal formants is the methodological step forward most useful for modern common core analysis.(from the Common Core website)

A discussion of the common core method in comparative law would be incomplete without mentioning the theory of legal formants that was introduced by Rodolfo Sacco.

Legal formants can be defined as all the elements that constitute the ‘living law’ of a country. They may vary in type and number from one country to another. Thus, it is probably impossible to compile a list of all legal formants that exist. Instead it is important to become aware of the three different kinds of perceptibility of legal formants. A part from the official sources of law, i.e. cases and legislation, other factors also influence how law is practiced in a particular country. Some of these other factors are more obvious, e.g. scholarly interpretation and judicial reasoning. Sometimes the elements of a legal phenomenon may only be partially obvious. Sacco calls the partially obvious legal formants synecdoche. In other cases, legal formants may be completely hidden. Sacco calls these hidden legal formants cryptotypes.

Cryptotypes (and to some extent probably also synecdoches) only become apparent when more than one system is examined through comparative study. Ideally the comparative lawyer, though privy to the legal systems discussed, is sufficiently detached as to abstract from the obvious rules in order to elicit implicit patterns and practices.

Three interesting contrasts are those between statute and the law as applied, the law as applied and the law as described, and between the situation the law deems to be normal and the situation that is normal in a sociological sense. (Sacco, infra, p. 378)

Through these implicit practices, rules that are prima facie contrary to each other, may indeed not differ from each other at all. It is the task of the comparative lawyer to discover such hidden commonalities among legal systems. And this, again, leads us back to the basic goal of the common core method in comparative law.

Bibliography

  • Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II), 39 Am. J. of Comp. L 1-34 (1991).
  • Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law (Installment II of II), 39 Am. J. of Comp. L 343-401 (1991).
Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s