Appunti Uniform Private Law

(UNESCO).

Theory:

Rodolfo Sacco’s “circle” concept is a way of looking at how formal rules (titulus)

and informal customs (modus) work together in a legal system.

Imagine a circle divided into four sections:

-M (Modus): This is where informal customs alone govern behavior. For example,

in some situations, people might follow unwritten rules or traditions rather than

relying on formal laws.

-T (Titulus): Here, only formal rules are needed to govern behavior. For instance,

when a law clearly states what should be done, people don’t need to rely on

unwritten customs.

-B (Both): This section shows where formal rules and informal customs both play

a role. Sometimes, the law and unwritten customs work together to guide

behavior.

-A (Alternative): In this part of the circle, people have a choice between following

formal rules or relying on informal customs.

In the middle of the circle, there’s a letter “V” which means that sometimes just

the intention or will of the people involved is enough to decide what happens.

So, Sacco’s circle helps us understand how formal rules and informal customs

interact and influence each other in a legal system. It reminds us that both are

important and can shape how people behave and make decisions . It emphasizes

the need to consider not only the written laws but also the broader social context

in which they operate when analyzing legal phenomena.

M: German solution T: French solution B: Austrian solution

Comparative law:

examines legal systems by comparing them with one another, analyzing how

legal texts translate into outcomes across different jurisdictions. It considers

various factors, known as legal formants, which influence these outcomes,

including legal transplants, infiltrations, social changes, and innovations. There

are several reasons for comparing legal systems:

1)Increasing Knowledge: In a globalized world, understanding neighboring legal

systems provides insights into different approaches to legal issues.

2)Evaluating Laws: Lawmakers compare legal systems to assess which laws best

address specific problems before introducing new legislation.

3)Cultural Understanding: Legal systems reflect cultural values, so studying their

development helps understand the culture of a country.

Legal formants:

(Legal formants are Elements that carachterize the positive law of a society and

represent the formal structure of the law,dall altra parte ci sono I criptotipi che

invece sono gli elementi informali spesso impliciti del diritto,pratiche sociali

tradizioni etc etc ambedue sono cruciali per una completa comprensione del

diritto)

Types of legal formants:

-Judicial: typical of England and all common law countries, it is based on case law

and the principle of ‘stare decisis’. The objects are decisions, opinions, orders

while the judges are the subjects.

-Legislative: traditionally prevailing in civil law systems. It is historically linked to

the French law (code Napoleon).(law is created from the parliament and the

institutions)

-Doctrinal: It played the most important role in German codification and it is still

powerful in civil systems. Doctrinal formants differ from legislative ones on the

interpretation of law. Example legal instruments used by UNIDROIT(based on the

work of scholars and on their publications that influences the decision of the

courts)

-Practical (theory of professor Diurni): an example could be contract law for

merge and acquisition.

At the private level we have doctrinal and practical formants, so we usually have

soft laws.

C ryptotypes, and to some extent synecdoches, are noticeable when we compare

different legal systems. A good comparative lawyer knows about the legal

systems being discussed but stays detached enough to see beyond the obvious

rules. They look for hidden patterns and practices by abstracting from the

surface-level details.(elemento che caratterizza il contesto storico e l’ambiente

culturale sociale ed economico nel quale il giurista si è formato)

Taxonomy :

Taxonomy in law is like organizing legal systems into groups, similar to how

scientists classify living organisms. It helps us understand the law better by

sorting its complexity. We can classify legal systems based on different criteria,

like whether the rules are binding or voluntary. Taxonomy also helps compare

legal systems globally, making it easier to see their differences and similarities.

For instance, we can group legal systems with civil codes together, like the

French family. Different scholars have proposed various classifications over time,

based on factors like history and key concepts. Overall, taxonomy helps us

navigate the diverse world of legal systems.

During the time we got different taxonomy coming from different scholars.

- Wolf, Arminjon and Nolde (1950) classified legal systems as civil law, common

law, mixed and others.

- Renè David (1960 and 1970) as common law, civil law, socialist law and other

conceptions of law.

- Zweigert, Kotz (1971) as French inspired civil law countries, German inspired

civil law countries, Anglo-American common law, Scandinavian legal systems and

religious or philosophical influences on legal systems.

However, these approaches were Euro- -American centred since they imposed a

western legalimperialism

Criteria of classification: the dissemination of some particular notions like the

legal transaction or good fate (canon law influence). In common law just formal

promises are binding (writ of ….), The first criteria is history, the second one is

notions.

Mattei’s theory(The problem of taxonomy and why Mattei developed his

theory)

The problem is that taxonomy is created based on Euro- American -Centric

approach Legal imperialism, so marginalization of the radically different

cultures.

Mattei ‘s theory is based on the idea that no matter where different legal

systems develop, every legal system has a dignity that has to be respected. So it

wanted to develop a global taxonomy where every legal systems has its own

place. Ugo Mattei developed the theory of the three patterns of law. In every

society, there are three main sources of social norms:

Politics (P) (legal process is often determined by political relationships)

 Professional law (L) (Wester tradition, includes civil and common law

 distinction)

Tradition (T) (religious and philosophical)



These 3 elements work in society at the same time but one of them prevail. And

when one prevails we have the hegemony of that element , that influence the

way in which the rules are produced and how they are perceived by the

community. A legal system that doesn’t have an high level of civilization we have

tradition or politics as a pattern of law. So we have shift from different patterns.

At its core, Mattei’s theory emphasizes the relationship between law and

individuals, focusing on how law affects and is affected by human behavior and

values.

Key aspects of Mattei’s theory include:

1)Focus on Individuals: Mattei posits that law should prioritize the interests and

needs of individuals over abstract legal concepts or institutions. He argues that

law exists to serve people and should be evaluated based on its impact on

human flourishing and well-being.

2)Social Context: Mattei emphasizes the importance of understanding the social,

cultural, and historical context in which law operates. He believes that legal

norms and institutions are shaped by broader social forces and must be analyzed

within their specific contexts.

3)Critique of Formalism: Mattei critiques formalistic approaches to law that

prioritize abstract legal reasoning and strict adherence to legal rules. Instead, he

advocates for a more flexible and contextual approach that considers the

practical effects of legal decisions on individuals and society.

4)Law as a Tool for Social Change: According to Mattei, law has the potential to

effect social change and promote justice. He argues that legal reform should aim

to address systemic inequalities and improve the lives of marginalized groups.

5)Holistic View of Law: Mattei’s theory rejects narrow conceptions of law as a set

of rules or commands and instead adopts a holistic view that encompasses legal,

social, economic, and ethical dimensions. He believes that law should be

understood as a dynamic and evolving system that reflects the values and

aspirations of society.

Overall, Mattei’s personalistic theory of law offers a human-centered approach to

understanding the role and function of law in society, emphasizing its capacity to

promote justice, equality, and human dignity. That’s why Mattei thinks that legal

systems are dynamic (“Legal systems never are, they always become”) and can

change their position over the triangle scheme over time. They are the result of a

layered complexity that stems from the accidents of legal history and from legal

transplants. And what determines the becoming is the variable role of different

patterns within legal systems. Consequently, legal systems can be grouped in

families according to the hegemony of one certain pattern. A legal system never

corresponds perfectly to a legal pattern. If this correspondence actually happens

it may be in a very limited and exceptional historical moment. Mattei’s

classification is not rigid, it is based on an impression of "hegemony",

acknowledging that individual characteristics of each legal family can be found in

any of the others and thus, in purist's terms, all legal systems are mixed. In

Mattei’s taxonomy, the traditional distinction between common law and civil law

is considered a subdivision within a highly homogeneous family of legal systems:

the western legal tradition or, more appropriately, the rule of professional law

Kelsen’s theory

Any legal norm receives its validity from compliance with a higher standard, thus

forming a hierarchical order. In the Kelsen Theory(formal theory of the sources of

law) we have:

- Fundamental level: national constitution and human rights treaties

- Legal level: national and local laws and treaties

Emphazise the hierarchical nature of legal norms((each level derives its validity

from compliance with the higher norm)

Application of choice of law rules and conflict of law rules:

Choosing the law for a legal dispute involving different places is called "choice of

law." It's usually stated in a contract, but if not, "conflict of laws rules" are used

to decide. These rules look at things like where the contract was carried out or

where the people involved live. The goal is to find the law most connected to the

issue using something called the Interest Analysis Approach. If there's no clear

choice, the law might default to where the seller lives for goods contracts or

where the property is for land contracts. Once the law is picked, it's used to solve

the prob