Basic Transformation of Legal Pictures: Purpose and Method of Comparative Law

THE JOURNAL OF COMPARATIVE LAW Volume nineteen Issue one 2024 Editors WE Butler Michael Palmer An organ of The Association for Comparative Legal Studies Limited ISSN: 1477-0814 (Print) ISSN: 2767-1291 (Online) SKU: 2370001855779 www.lawbookexchange.com Cover design by Peter Lo Ricco CONTENTS Special Issue: The Worldview of Comparative Law Edited by O. V. Kresin W. E. BUTLER Introduction O. V. KRESIN O. V. Kresin World Picture of Comparative Law: “The Courage of Your Convictions” M. A. Damirli The Concept of Legal World Picture M. Nicolini “Writing the Earth and Representing the World“: The Cartographical Ambitions of Comparative Law O. Halabudenko Basic Transformation of Legal Pictures: Purpose and Method of Comparative Law J. Gordley Comparative Law and its Aspirations O. D. Tykhomyrov Comparativism, Philosophy of Law, and Comparative Jurisprudence D. O. Tykhomyrov O. V. Tkachenko After the “Picture of Law”: Legal Comparison as the Discourse of the Existence of Law A. Saidov National Legal Systems in the Context of Comparative Law A. V. Egorov National, Transnational, and Global Law: Trends of Development and Interaction H. Behruz The Impact of Religions on Law-Making and Classification of Legal Systems (Islamic Law) S. P. Rabinovych Conception of Human Rights as Component of Religious Legal System (Contemporary Catholicism) W. E. Butler Universality and Non-Universality in International Law: Comparative Reflections and Implications E. O. Kharytonov The Private and Public Law Dichotomy as the Paradigm of Global Law: Reality or Myth? O. I. Kharytonova M. Gutan The Concept of “Imitation” and its Epistemological Relevance in Comparative Law and Comparative Legal History C. M. de Iuliis The Business Judgment Rule in Anglo-American and Civil Law Systems: An Underlying Worldview G. Samuel Can Methods from the Social and Human Sciences be of Value in Understanding Comparative Law Methodology? A. Mercescu Units of Comparison Beyond (National) Law M. Graziadei Contested Economic Maps of Legal Systems M. Giraudo C. Varga Legal Images and Understandings of Law: Juristic Assumptions and Results, Student Evaluations and Choices C. Valcke Comparative Common Law Teaching: Why it is so Hard W. E. Butler Recently Appeared 19.1 • 2024 The Journal of Comparative Law JCL 19:1 (2024) 103 oleg a halabudenko Basic Transformation of Legal Pictures: Purpose and Method of Comparative Law OLEG A. HALABUDENKO* Comparative jurisprudence has travelled a long way in its historical development, which, in the legal systems embraced by the Western Legal Tradition, was initiated by forms of legal communication arising between the law of the urban community (urban law, ius civile) and the law of nations (ius gentium): Roman law’s originality lies in the fact that it has been formed as the law of a сity. At the same time, in the urban centres of the ancient world, one finds peregrines for whom – with the exception of the legal institutions of the ius gentium – not the same law applies as for Roman citizens.1 The dialectical link between the law of the city and the law of other communities serves as a basis for the future development of law in its pragmatic understanding as a means and method of legal regulation of the behavior of a subordinate subject of law. However, more importantly for the purpose of this study is that such a dialectical relationship serves as a heuristic communicative model that allows us to explore the essence and forms of legal communication between different legal cultures without detachment from reality. From the position of the dominant, until recently, pragmatic approach to law as an invariant way of achieving a certain result,2 forms of legal communication, reflecting the dialectical relationship between urban law and the law of nations serve as valuable material, as a formal basis for the construction of all possible typified legal constructions (models of relations as prototypes of legal constructions in their Kantian understanding) of modern legal orders. The latter is important for legal cultures united by a common tradition at a stable stage of their existence, but it is insufficient for understanding the principles, the foundations, of legal communication between legal cultures that do not share a common tradition. * Ph.D. in Law; Associate Professor, Department of Political Science and Law, Kyiv National University of Construction and Architecture. 1 See Martin Avenarius, “Roman Law as the Law of a City. the Origins of the Concept and the Changing Conditions of its Further Development”, Proceedings of the Institute of State and Law of the Russian Academy of Sciences. XIII, no. 3 (2018), pp. 7-47. 2 This approach assumes a vision of law as a means of changing the world without taking into account the connection with reality, or a conception of law whose connection with reality unexplainable with the proposed methodology, that is, approach legal regulation as a version of naive magical influence of legal norms on human behavior. 104 JCL 19:1 (2024) Basic Transformation of Legal Pictures The idea of law as a pragmatic means of regulating the behavior of subordinate subjects, which once triumphed in the minds of “lawyers who were seated in a comfortable chair acquired as a result of social revolutions”, turns out to be useless under the conditions of regional conflicts and the “global storm’”. In the latter circumstances, law is expected to explain patterns of communication between subjects from different cultures not bound by a common legal tradition. Comparative jurisprudence, having a scientific status, unlike legal dogmatics, considers legal phenomena and processes in connection with reality. Accordingly, comparative jurisprudence includes only those legal phenomena and processes that have a connection with reality – we define such a connection as the transcendental basis of law. At the same time, we argue that the only transcendence for legal phenomena and processes characteristic of particular legal cultures should be considered loci of law – its spatial dimension. Legal processes should be considered in the context of perception of legal communicative models (legal constructions) arising from the dialogue of different legal cultures, and transfer of the established concept of them in the course of legal communication to new loci – law of national States, City law, regional law, law of Virtual Worlds, emerging Global meta-law. In turn, in our opinion, legal phenomena as mental forms related to reality considered in a methodological way, through the search for their epistemic basis, allows us to understand their existence. The subject of this study is legal communication between different legal cultures. The main task is to find an answer to the question: how under conditions of conflict between cultures is their legal communication is possible? The answer implies, in the first place, an appeal to the methodological arsenal accumulated by comparative jurisprudence during the its previous stages of development. The latter allows us to draw a number of conclusions regarding the metaepistemic vision of law and its main categories – legal culture, legal tradition, codes of legal communication, and legal constructions. The first section of this article is devoted to the methodology and epistemic dimension of comparative jurisprudence. The second section, focused on the spatial organization of law, reviews legal communication arising in connection with the spatial localization of legal cultures as artifacts, setting the inherently transcendent existence of law at the level of national States, cities, regions, global and virtual levels. COMPARATIVE JURISPRUDENCE IN THE CONTEXT OF CHANGE IN ITS EPISTEMOLOGICAL DIMENSION The needs of legal communication between persons with different legal affiliations make it necessary to adopt a single code to enable biosocial interaction. In turn, the generation of the required code of legal communication becomes possible through a comparison of typical models of behavior (legal constructions). The present writer has hypothesized that the direct object of comparative jurisprudence is legal constructions: “legal constructions reflect specific aspects, demanded by practice, of a general conceptual nucleus being the foundation of JCL 19:1 (2024) 105 oleg a halabudenko a normative material of legal orders unified by a common legal tradition”.3 It is hardly possible to dispute that initially legal communication itself is caused by the needs of dialogue between actors of law – persons belonging to different legal cultures. Various facets of social reality – such as concepts, beliefs, norms, and values – are formed through continuous interactions and negotiations among society’s members.4 The rhetorical question posed by Franz Wieacker (1908-1994) – “Do the traits of our legal culture outlined here have a chance to become part of a future planetary legal culture?”5 – has an unequivocal negative answer. In this regard, Roger Cotterrell noted: “A law immersed within a culture is of necessity, and this must be emphasised, different from a law that exists in another culture”.6 However, it is the pluralism of legal cultures that gives rise to the necessity of legal communication, and in the scientific aspect, with regard to the subject and method of comparative law, such pluralism makes it necessary to cognize forms of communication through the establishment of the common and particular among legal phenomena and processes. The practical significance of comparative law is to develop ways and means of intercultural dialogue between actors involved in different legal discourses of different legal cultures. In this case, the discourse is understood as a complex communicative phenomenon, a complex system of knowledge hierarchy, including, in addition to the text, extra-linguistic factors, the consideration of which is necessary for understanding the text. The assertion that a con-text is the semio-socio-cultural environment in which the text unfolds, and consequently that the text and the con-text are so are so intimately related that neither concept can be comprehended in the absence of the other,7 is undeniable. But we unable to understand the logical meaning of the discourse field without knowing the rules of its reading, which are constructed in the process of dialogue and which endow it with inter-actor meanings. In juxtaposition with the tasks of intercultural dialogue provided by the search for ways of semantic transliteration and adaptation to the syntax of a text forms acceptable for comprehension, in other words, to the reception of the text inscribed in a different legal culture, the field of comparative legal research is narrowing. “Culture can refer not just to shared beliefs and values, and common traditions, but also to what anthropologists call ‘material’ culture – levels of technological development and economic interaction”, and hence – Not to be neglected, either, are shared emotional attachments and rejections: culture can be a matter of loves and hatreds, attractions and 3 O.A. Halabudenko, “Legal Constructions in the Focus of Inter-Temporal and Inter-Local Methods of Comparasion: The Methodological Aspect”, in William E. Butler and Oleksiy V. Kresin (eds.), The Interaction of Legal Systems: Post-Soviet Approaches (2015), p. 86. 4 See Peter L. Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (2011). 5 Franz Wieacker and Edgar Bodenheimer, “Foundations of European Legal Culture”, American Journal of Comparative Law, XXXVIII (1990), p. 27. 6 Roger Cotterrell, “Comparative Law and Legal Culture”, in R. Zimmermann and M. Reimann (eds.), Oxford Handbook of Comparative Law (2006), pp. 711-712. 7 See M. A. K. Halliday and R. Hasan, “The Structure of a Text”, in Language, Context, and Text: Aspects of Language in a Social-Semiotic Perspective (1985), pp. 52-69. 106 JCL 19:1 (2024) Basic Transformation of Legal Pictures repulsions, definitions of ‘us’ and ‘them’, that are not necessarily reducible to differences of tradition, belief or values; or to shared conditions of economic or other kinds of instrumental interaction. Thus, when people think of their cultural attachments they sometimes find that these are not entirely explicable in terms of beliefs/values, traditions or material interests (though efforts may be made to rationalise them in those terms).8 However, whatever the actual significance of emotions related to law, in actors representing “own” legal cultures, the transliteration of codes of “alien” legal culture is always carried out in a rational form. The starting point in this process is the rational form of legal formations understanding, which fulfils the function of transliteration of the codes of “alien” legal culture, and, accordingly, the irrational form of perception, which endows the compared legal cultures with distinctive features that do not imply any perception. Thus, dialogue between cultures is achieved through the acceptance of a common legal tradition, which serves as a code of legal communication and allows for effective communication. In turn, the basis of a specific legal culture is the community of legal ideas (concepts), conditioned by the manifestation of a certain legal tradition and finding the appropriate embodiment (reception) in typical legal forms. Hence, the study of legal culture (taking into account its socio-cultural components) outside the context of the legal tradition involved in its formation, reduces the subject of comparative jurisprudence to the field of knowledge related to legal geography. It is not difficult to see that the above approach to the vision of legal communication established between different legal cultures leads to a logical circle: speech is possible if a common code of communication is elaborated, which must precede the beginning of legal communication. The adoption of a common communicative code within a certain paradigms does not mean, however, that in the process of legal communication politicallegal terms are interpreted by participants absolutely identically. Thomas Samuel Kuhn (1922-1996), reflecting on commensurability, comparability, communicability, rightly noted, So long as the members of a speech community agree on a number of standart examples (paradigms), the utility of terms like ‘democracy’, ‘justice’, or ‘equity’ is not much threatened by the occurrence also of cases in which community members differ about the applicability of these terms. Words of this sort need not function unequivocally; fuzziness at the borders is expected, and it is the acceptance of fuzziness that permits drift, the gradual warping of meanings of a set of interrelated terms over time.9 When talking about legal culture, we should note that this concept itself outside the context of the general communicative code is devoid of connotative meaning. In other words, legal culture is a culture of value for its representatives and does not necessarily correspond to a civilizational ideal. Its real value 8 Roger Cotterrell, “Law and Culture – Inside and Beyond the Nation State”, Retfærd Argang, XXXI, no. 4/123 (2008), pp. 25-26. 9 Thomas S. Kuhn, The Road Since ‘Structure’: Philosophical Essays, 1970-1993, with Autobiographical Interwiew, ed. Hames Conant and John Haugeland (2000), p. 57. JCL 19:1 (2024) 107 oleg a halabudenko may be learned only in consequence of perceiving by representatives of other legal cultures (not always voluntarily) and, consequently, in the process of comparing its basic constructions and institutions with those that are known for representatives of the perceiving culture. Indeed, Gustave Le Bon has convincingly demonstrated that culture is by no means an indicator of a nation’s civilization, that civilizations are often led by peoples with underdeveloped, utilitarian cultures but strong character and ideals, that the power of civilization lays not in technical and cultural achievements, but in character and ideals, and finally, that even a higher culture, which is not peculiar to a nation, undermines its morals and destroys the values formed over centuries, which makes such a nation even lower.10 Thus, legal tradition is the common element that unites legal cultures between which there was no dialogue before, and its effectiveness is determined by the necessary epistemic authority, which, according to Jürgen Habermas (b. 1929), is achieved by the actions of the speech community. Thus, the need to establish a dialogue between the bearers of different legal cultures creates a new “legal situation” significantly different from that which existed within a particular legal culture. Such a «situation» can be characterized by special epistemic characteristics: the autonomous subject of legal communication ceases to exist, its place is taken by the named communicative community, the correspondent theory of truth is replaced by consensus theories, and the place of the epistemological subject is replaced by intersubjectivity.11 In other words, the question of – “is there some operation code or hidden formant we are missing that actually drives the pattern of law?”12 – within the framework of comparative jurisprudence suggests that there is an unambiguous answer. An attempt to overcome the logical circle set by the Habermas critical conception is made by Paul-Michel Foucault (1926-1984), who freed the key concept of “discourse” from any transcendental or any psychic basis and comes to the conclusion about the omnipresence, totality of political power. For Foucault, the human person – the primary medium of communication – is absent; he/she is nothing but an ephemeral construction of a historically conditioned discourse that dictates the “episteme” of a historical epoch.13 Niklas Luhmann (1927-1998), who, following the principle that if something does not create itself, it is not a system, completely separated mental processes from social ones and perceived the human personality in society as a communicative artefact, as a product of social autopoiesis acting in the context of an autopoietic social system.14 Thus, at the methodological level, the well-known dispute between realism and nominalism is resolved in a new reading: epistemological realism leads ultimately to holism, which affirms the reality and primacy of 10 See: Gustave Le Bon, Psychology of Crowds (2009). 11 See Jürgen Habermas, Theory of Communicative Action, Volume One: Reason and the Rationalization of Society (1996); Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, transl. William Rehg (1998). 12 Edward J. Eberle, “The Methodology of Comparative Law”, Roger Williams University Law Review, XVI (2011), p. 56. 13 See Michel Foucault, Discourse & Truth and Parrēsia, ed. Henri-Paul Fruchaud and Daniele Lorenzini; intro. Frédéric Gros (2019). 14 See Niklas Luhmann, Einführung in die Systemtheorie, ed. Dirk Baecker (5th ed.; (2009). 108 JCL 19:1 (2024) Basic Transformation of Legal Pictures society, and hence its inherent culture. For comparative jurisprudence, such epistemic paradigm, in particular, gives reason to draw the following conclusion: legal culture is not absorbed or determined by the general culture, legal culture is autonomous and capable of self-development. Moreover, from the point of view of the analytical approach to comparative jurisprudence, legal culture is structured, and therefore, it is acceptable to distinguish different indicators of legal culture – legal formants.15 Nevertheless, legal formants are not a simple collection of sources of law not only in their narrow sense (forms of law), but also in their broadest sense (the legal order as a whole). As Pier Giuseppe Monateri notes, “The theory of legal formants, also known as the dynamic approach to comparative law, focuses on law as a social activity: a formant of the Law is a group, a type of personnel, or a community, institutionally involved in the activity of creating Law”. Accordingly, “The main idea is to substitute the model of the law as a more or less consistent system of interrelated, hierarchically connected propositions, by a model of competing formants within the unique setting and constraints of one legal tradition”.16 Rather, it is permissible to define legal formants as a category of legal artefacts, which makes it acceptable to apply to them in such a case the relevant methodology. In this sense, the theory of legal formants offers a picture of laws as bundles of transplants of competing sources of law. The formant approach is then a totally comparative approach based on a kind of ‘external’ study of the law as a form of sociological or economic appraisal of lawyers’ activities, coupled with an ‘internal’ analysis of documents as a kind of form criticism.17 The analytical approach distinguishes legal culture from other cultural phenomena, structures it on the basis of empirical data, and thus makes it possible rationally describe the links between law and other cultural phenomena. However, the analytical approach leaves a number of fundamental questions unresolved. First, it is a question of the a priori foundations of a particular legal discourse. Indeed, if “discourse formations are historically contingent, lacking any a priori foundation”, then “every society has its own order of truth, its own politics of truth”.18 From the above assumption, we can draw the methodological conclusion that discourse patterns regulate themselves. Foucault’s attempt to abandon the idea of autonomous discourse in order to avoid autoreferentialism leads to the idea of searching for a quasi-transcendental basis for discursive practices, which he identifies with total power. For legal discourse, the norm of law is the embodiment of total power, and it is also recognized as the basic element of borrowing by the recipient culture - the “seedling norm” borrowed from the donor culture. 15 See Rodolfo Sacco, “Legal Formants: A Dynamic Approach to Comparative Law”, American Journal of Comparative Law, XXXIX (1991), pp. 343-401. 16 P. G. Monateri, Legal Formants and Competitive Models: Understanding Comparative Law from Legal Process to Critique in Cross-System Legal Analysis (2008) (available online). 17 Ibid. 18 Gunther Teubner, “How the Law Thinks: Toward a Constructivist Epistemology of Law”, Law and Society Review, XXIII (1989), p. 735. JCL 19:1 (2024) 109 oleg a halabudenko Ultimately, an effective way of solving the problem of the endless search for the foundation of episteme was proposed by Gunther Teubner, who develops Luhmann’s theory of autopoiesis in relation to law. This concept, adopted from biology, refers to a system that reproduces its elementary components by means of a functioning network of the same elements and, thanks to this, is separated from the external environment. In a social and, as we can assume, legal system, reproduction takes place in the form of communication. Thus, autopoiesis is a way of reproduction of a certain system identical to itself, provided by replication of the code of legal communication. Nevertheless, Teubner, reflecting on the fate of the “unified legal discourse”, which, in his opinion, is being deformed by “the invasion of poststructuralism, critical theory, self-referentiality and autopoiesis in the socio-legal world”, contrasts the volitional behavior of individuals with “infamous mystifications of collectivities”.19 Without going into polemics concerning the possibility of collective action, in reality we are talking about the dichotomy of legal discourse, its division into two components: power, on one hand, and structures of public consciousness, on the other. In this regard the question is: what should we recognize as the “centre” of legal constructions serving as the actual content and primary legal units of each legal culture – public authority or the will of individuals expressed in relation to legal constructions that have developed through autopoietic processes? And in this regard: should public authority be seen as something opposed to the biosocial forms of existence of human communities? If the latter is true, then no less important is the question: what are the limits of deformation of public consciousness exposed to the influence of power imperatives? Umberto Eco (1932-2016), resorting to the metaphor of sport as a rule-based competitive procedure, answered the questions posed in the following elegant way: So, there is a deep area of the collective sensibility that no one, whether through conviction or demagogical calculation, will allow to be touched. And there is a profound structure of the Social whose Maximum Cement, if broken up, would cause a crisis in every possible associative principle, including the presence of man on earth, at least as he has been present in the last tens of thousands of years.20 If we cease trying to find the missing structure within the logically flawed framework of structuralism, the answers to these meta-legal questions might be obtained by changing ideas about the grounds of any legal phenomenon or process. This is a constructivist approach to understanding legal phenomena and processes: that any “legal construction does not follow, but immediately precedes the legal statement and thus conditions the development of law”.21 The compared legal constructs have three basic ontological levels: (1) the level corresponding to public consciousness (the idea of law); 19 Ibid., p. 728. 20 Umberto Eco, Faith in Fakes: Travels in Hyperreality (1995), p. 160. 21 О. Halabudenko, “К вопросу становления понятия «юридическая конструкция»: методологический аспект” [Towards the Formation of the Concept of ‘Legal Construction’: Methodological Aspect], Закон и жизнь [Lex and Life], no. 10 (2010), p. 22. 110 JCL 19:1 (2024) Basic Transformation of Legal Pictures (2) the level of fixation in the form of normative statements (fixation of the legal idea in the legal text); (3) yhe level at which, as a result, of the legally significant behavior of the actor, the legal idea reflected in the legal text is transformed into a legal reality (the form of implementation of the right). Based on this perspective, the birth of the idea of law (a legal construct at the level of public consciousness) from law itself is logically impossible, no matter what power imperative applied in this case. On the other hand, the norm of law altogether as a normative statement, a rule of behavior and a regulatory rule – has an effective impact on individual and on public consciousness only when it is an element of a particular legal construction. Thus, an occupation regime’s order is not recognized as a legitimate legal form of impact on human behavior until it will be perceived at the level of social consciousness. In this regard, it is permissible to assume that legal constructions are the basic elements of legal reality that allow us to overcome the traps of collectivism. Consequently, it is not a political imperative or a normative statement that shapes public consciousness, but cultural factors – the faith that those institutions of organization of the biosocial life of a particular society are the most relevant to the tasks of its existence and, possibly, development. To what extent faith in institutions such as government, human rights, democracy, forms of organizing property rights, or, for example, shari’a law constructions, corresponds to the expected result is a question answered by the real state of affairs when we compare it with our expectations, with our beliefs. As soon as the pragmatic aspect of this or that institution accepted by the public consciousness, it immediately becomes an object of worship based on the faith that this idea-form of organization of bisocial life of the community is the best for its existence. This is how the idea of a “better law” is born, which in the end is generally recognized as law of the forum (lex fori) exercising jurisdiction ratione materia, ratione personae, ratione loci, ratione temporis. Metaphorically, this idea was accurately expressed by the Ukrainian poet Taras Shevchenko (18141861): “Truth, strength, and will are all one’s own in one’s house”.22 However, trivial it may seem, the tensions between cultures that arise during communication increase the risk of conflict. As Cotterrell aptly put it, “‘law and culture’ makes people angry”,23 and confrontation, as we can witness in practice, does not disappear when competing cultures are able to perceive each other’s language. Doubtless “language certainly is a problem and it might be even greater then most of us expect it to be”.24 In analyzing issues related to legal communication, however, it should be borne in mind that “the legal language will follow the legal order which uses that language (and not the other way 22 Taras Shevchenko, Зібрання творів: У 6 т. [Collected Works: In 6 vols.] (2003), I. p. 349. 23 Cotterrell, note 8 above, pp. 25-26. 24 Bernhard Grossfield, “Comparative Law as a Comprehensive Approach: A European Tribute to Professor Jack A. Hiller”, Richmond Journal of Global Law & Business, I (2000), p. 11. JCL 19:1 (2024) 117 oleg a halabudenko the fact that it is a part of social space that, in turn, cannot be homogeneous (the more actors are involved in communication, the denser is the social space). Second, the spatial differentiation of law turns out to be a problem that is difficult to solve using traditional legal tools, since the axiom of uniform legal influence does not allow us to determine the nature of this differentiation within the existing legal knowledge,45 unless we take into account the fact that legal constructions are not abstractions detached from the transcendent bases of human existence as a biosocial being. The said tendency related to the differentiation of legal space in the context of issues addressed by comparative jurisprudence suggests, in our opinion, paying attention to legal urbanism. Being an interdisciplinary research program, it at least allows us to study the city as a specific legal space. Legal urbanism enables us to find links between legal codes and codes that constitute the specificity of urban cultural phenomena, as well as to study the peculiarities of legal communication in the institutionalised organisation of urban life. In this regard, we agree with Olha Melnychuk that “the conceptual level of the methodology of legal urbanism is closely related to the peculiarity of the methodological situation in jurisprudence in general”,46 adding that this not only in general, but also in particular, and perhaps primarily in relation to methodological issues in comparative jurisprudence. In the view of Antonia Layard, “Drawing on a wide range of legal methodologies – socio-legal, comparative, or doctrinal analysis – urban law can study the city as a distinctive legal entity”.47 Another factor influencing changes in the legal map of the world is the rapid rise of globalism. Globalization has a strong impact on the national State, weakening its power and financial resources, directing its institutions to adapt in a globalized world.48 At the same time, globalization and related processes of global interaction, resulting in increased international trade and exchange of ideas, beliefs and culture, have a tangible impact on legal concepts and legal formants. Moreover, the need for international dialogue is of particular importance in view of environmental issues and the emergence of the concept of Global Environmental Law, which should be considered from a comparative legal perspective. According to Elisa Morgera, A perspective informed by global environmental law, understood as the promotion of environmental protection through a plurality of legal mechanisms relying on a plurality of legal orders, thus prompts the study of environmental law at the international, regional, national and subnational levels as inter-related and mutually influencing systems.49 45 О. S. Melnychuk, Міська правова система: теоретичні та нормативні засади [Urban Legal System: Theoretical and Normative Foundations] (2015), p. 14. 46 Ibid, p. 21. 47 Antonia Layard, “Researching Urban Law”, German Law Journal, XXI (2020), p. 1447. 48 D. G. Sevriukov, Суверенітет. Генеалогія ідеї в контексті політичної та правової історії [Sovereignty. Genealogy of the Idea in the Context of Political and Legal History] (2018), p. 184. 49 Elise Morgera, “Global Environmental Law and the Comparative Legal Method(s)”, Review of European Community and International Environmental Law, XXIV (2015), pp. 254-263. 118 JCL 19:1 (2024) Basic Transformation of Legal Pictures Taking into account the factors of unification of the City legal system, on one hand, and the influence of global processes on legal life, on the other hand, the loci physically present on the legal map include: city legal systems, national legal systems united by a certain legal tradition, and the global meta-legal system. As Yuri Oborotov noted, “today, under the influence of globalization processes, universal ideas about the development of the world order, the formation of inter-civilisational norms are being formed, and there is a move beyond the traditional (state-centric) organization and international institutions”.50 Societies are becoming more interdependent and hyperconnected due to globalization processes, but a “boat” that symbolizes the form of human communities’ co-habitation in the modern world, divided into separate “cabins” (jurisdictions), has not become safer as a result of globalization, and testing its strength like Noah’s ark, is not a good idea. The isolationism justified by overcoming the threat posed by a global pandemic and the bloody conflicts that followed, while not reversing, did put a tangible halt to the process of globalization. Under these circumstances, according to Klaus Schwab and Thierry Malleret, “The most likely outcome along the globalization–no globalization continuum lies in an in-between solution: regionalization”.51 Changes in the legal map of the world, influenced by the “globalization-no globalization” factor, should not be ignored by comparativism. They, in our opinion, imply a shift in the focus of attention of comparative jurisprudence from the legal systems of national legal orders to the meta-law of regional associations and, accordingly, the law of local communities. The global dimension of law has its limits, and therefore “the rule of law should not be seen as an absolute given with universal applicability but rather as a political ideal and a means to constructive international dialogue and the establishment of legitimate international organizations”.52 The correlation of the considered trinity of the modern legal dimension with the biosocial forms of life organization intensify as it increases civilization conflicts between the determining actors of the local civilizations. The barbaric aggression against Ukraine unfortunately confirms Samuel P. Huntington’s (1927-2008) prescient prediction that future wars will be between cultures, not between countries.53 The clash of civilizations has a rationale in that “after the end of the Cold War, world politics moved into a new phase, in which non-Western civilizations are no longer the exploited recipients of Western civilization but have become additional important actors joining the West to shape and move world history”.54 The question remains whether such actors will accept the forms of civilized communication, taking into account what was been said about it 50 Iu. N. Oborotov, «К вопросу о формировании глобальной правовой системы» [On the Question of Forming a Global Legal System], Наукові праці Національного університету “Одеська юридична академія” [Scientific Works of National University “Odessa Law Academy”], X (2011). p. 230. 51 See Klaus Schwab and Thierry Malleret, COVID-19: The Great Reset (2020) (available online). 52 Ellen Hey and Elaine Mak, “Introduction: The Possibilities of Comparative Law Methods for Research on the Rule of Law in a Global Context”, Erasmus Law Review, II, no. 3 (2009), p. 288. 53 See Samuel P. Huntington, “The Clash of Civilizations?”, Foreign Affairs, LXXII, no. 3 (Summer 1993), pp. 22-49. 54 S. Murden, “Cultures in World Affairs”, in J. Baylis, S. Smith, and P. Owens (eds), The Globalization of World Politics (5th ed.; 2011), pp. 416-426. JCL 19:1 (2024) 119 oleg a halabudenko above or being fascinated by perverted interpretations of institutions and legal constructions offered by the actors inciting bloody conflicts, or will join the ranks of mutant cultures. That is why, speaking of the three-dimensional physically present loci of the modern legal map of the world, the following question is pertinent: whether it is possible in such loci for inclusive institutions outside the legal tradition in which they emerged as conceptual forms of the biosocial life of the members of a certain society. To answer the question posed, legal comparativism should add comparative institutional studies to its methodological arsenal. If we take into account Huntington’s view that institutions are “stable, valuebased, repeatable patterns of behavior”,55 we can conclude – there are no universal forms of inclusive institutions that function equally well in all legal cultures. On one hand, we cannot ignore the fact that modern cities tend to show more common features among themselves than between them and the States where they are situated. This commonality is due to the similarity of legal institutions. The study of urban institutions developed in the Western legal tradition allows us to argue that thanks to them such features as communitarianism, constitutionalism, and secularism are added to the common features of law – objectivity, universality, and reciprocity of rights and obligations.56 These features of urban law are enshrined in virtually inclusive economic and political institutions of open-access orders. “The need to resolve internal elite conflicts and to guarantee that elite rights are conflict-free”, seen by researchers as the main impetus for the institutionalization of orders of open-access to economic and political life, is first realized at the level of the urban social landscape and enforced precisely by the institutions of urban law. However, the continued growth of nation-states, as opposed to the stable existence of cities earlier, was actually due to the “rising cost of war” as it involved the creation of new institutions to administer and finance warfare.57 On the other hand, by noting the differentiation of legal orders in relation to the characteristic features of the institutions in them, the following questions arise: what are institutions as objects of study? and, accordingly, can an institutional approach be useful for the purposes of comparative law? If institutions are, as Avner Greif suggests, a set of elements (rules, norms, beliefs, and organizations), 58 or, as proposed by Douglass C. North, they are the set of the same elements but without organizations,59 then, as they determine the characteristics of rule-based social orders, it should be recognized that institutions precede the legal order itself. This statement may seem absurd from the point of view of causality, but it makes sense if we consider that the legal formants that constitute institutions are determined by the logic of selforganizing autopoietic systems. 55 Huntington, Political Order in Changing Societies (1968). p. 12. 56 See Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (1983), pp. 357-403. 57 See Tilly, note 44 above. 58 See Avner Greif, Institutions and the Path to the Modern Economy (2006). 59 See Douglass C. North, John Joseph Wallis, and Barry R. Weingast, Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History (2009). 120 JCL 19:1 (2024) Basic Transformation of Legal Pictures Institutions in this case are interpreted in the context of the research project that applies the tools of neoclassicical economics to transaction costs, property rights, and public choice, which, in contrast to institutional political economy, takes out of the field of study “the importance of political realities in the selection of public policies and highlights the role of institutions in setting the terms of human interaction”, and focuses mainly on “rules of the game” or “restrictions which men impose on human interaction” that regulate the transaction costs and define the possibilities for economic development.60 If this hypothesis about institutions is accepted as true, it confirms the thesis that law is a self-developing system, the main element of which are legal constructions. Institutions, as interpreted by the authors who study them, are nothing other than legal constructions, with the only fundamental difference being that the set of elements in institutions – rules, norms and beliefs – is not differentiated, structurally unexplained, the connection between factual data and legal reality unexplained, systematically almost unexamined. In turn, the theory of legal constructions, having exhausted the field of their cognitive dimension, including the issues of intensionality and causal beliefs, needs to explain the role of transcendencies that condition the spatial dimension of the relevant legal constructions. In our opinion, legal spaces as such transcendencies should be considered. Accordingly, relevant shifts in the locus of law deserve to be recognized as a factor of legal change. There is no reason to deny the attractiveness of open-access models of social organization, namely: political and economic development, rich and vibrant civil societies with diverse organizations, more decentralized governments, widespread impersonal social relations, including the rule of law, secure property rights, fairness, and the treatment of all as equals.61 There is no reason to object North’s proposed features of social institutions characteristic of open-access orders, such as a consolidated political control over violence; a widely held set of beliefs about the inclusion of and equality for all citizens; entry into economic, political, religious, and educational activities; support for organizational forms in each activity that is open to all; rule of law enforced impartially for all citizens; impersonal exchange.62 At the same time, the transition to open access arrangements has taken place in the West. In this regard, based on the legal world map of the modern era, and adhering to the “convergence” hypothesis that “legal systems starting from different points tend to converge toward similar solutions”,63 prima facie, one might agree that legal orders “did not come to open-access along the same path or using the same institutions”.64 60 Fernando López Castellano and Fernando García-Quero. “Institutional Approaches to Economic Development: The Current Status of the Debate”, Journal of Economic Issues, XLVI, no. 4 (December 2012), p. 924. 61 North, et al., note 59 above, pp. 11-12. 62 Ibid., p. 114. 63 Mattei, et al., note 33 above, p. 508. 64 North, et al., note 59 above, p. 248. JCL 19:1 (2024) 121 oleg a halabudenko But were views on the institutions of open-access orders so different in the emerging national jurisdictions? And even more specifically in this context: why have institutions for the administration and financing of war emerged in the West, institutions that establish a monopoly on the use of force, modern credit institutions, and, above all, structures based on impersonal relationships? The answers to these questions are to be found in the characteristic features of the legal tradition, the representation of which was performed by the actors at that time. The formation of nationally organized legal orders happened in the context of modernization. However, the modern dimension of political power does not imply the rupture of relations with the institutions from which the legal tradition formed. On the contrary, modernity, realizing itself through revolutions, thus changes the cultural orientation of time, but retains the basic concepts of a certain legal tradition. In this sense, modern institutions are institutions of the same legal tradition. Outside of this tradition, as experience demonstrates, they prove to be of functionally unusable or limited functionality. Thus, the discussion – “Do human beings share the same or similar ideas about order? Do all cultures have certain features of order in common? Is there an invisible hand that creates patterns of orders without being noticed?”65 – is resolved with the conclusion that – “Our impetus for commonalties may not mislead us ‘to proclaim sameness’ and to blind our eyes to human differences”.66 The problem of the “implementation” of inclusive institutions outside the legal tradition that led to their formation cannot be solved solely by a structural analysis of the institutions themselves and their corresponding classification. The analysis of four criteria proposed by Huntington to measure the development of institutions (adaptability – rigoricity, complexity – simplicity, autonomy – subordination, coherence – separateness)67 without taking into account legal tradition as a factor in their formation, leads to the conclusion that institutions are nothing more than impersonal rules that perform the functions of organizing the life activity of a social organism. The distinguishing feature of such rules, according to North, is that they are “humanly invented constraints that shape human interaction”.68 In other words, institutions include not only formal-legal prescriptions, but also informal rules. However, if a legitimizing basis for such rules is not found, they will remain outside the purview of comparative law. Finally, when reflecting on legal spaces as factors that are beyond the established mental legal forms and, at the same time, condition them, one cannot ignore the dynamically forming Virtual legal space and the legal constructions typical for it. The Virtual legal space is a virtually present locus of the actual legal map of the world. There is no doubt that Virtual Reality, which replaces the real 65 See Grossfield, note 24 above, p. 25. See also Grossfeld, “The Invisible Hand: Patterns of Order in Comparative Law”, Journal of South African Law, no. 4 (1997), pp. 650-651. 66 Grossfield, note 24 above, p. 25. See also V. G. Curran and Grossfeld, “Dealing in Difference: Comparative Law’s Potential for Broadening Legal Perspectives”, American Journal of Comparative Law, LVI (1998), pp. 657-668. 67 See Huntington, note 55 above, pp. 12-24 68 North, et al., note 59 above, p. 3. 122 JCL 19:1 (2024) Basic Transformation of Legal Pictures world altogether, and Augmented Reality, which allows digital content to be layered over the real world, “like many big technological advances, will in some ways challenge legal doctrine”.69 In fact, if “societies have laws, so why should virtual societies be any different”?70 The problems associated with Virtual Reality exacerbate the question of the impact of the space of law on the relevant legal constructions. It is relevant for comparative law in this regard to find an answer to the question of the existence and validity of the law of the Virtual world different from the law applicable to the Virtual world. If comparative law scholars are not to ignore the law of Virtual worlds, the next objects of comparative law research would be to recognize: constructions of artificial intelligence and related biosocial interactions; constructions of the Social Credit System, constructions of virtual property, constructions of contracts (smart contracts based on blockchain technologies), including forms of investment and exchange governed by contract law in the real world; constructions of social groups operating in the Virtual world that “in the absence of legal regulation can and should develop their own norms to govern permissible and impermissible social interactions”.71 From the point of view of comparative-institutional research programs, issues related to access to Virtual public space are of interest as well. This is about spaces created by software developers that give users a digital, virtual room where the users can socially interact with other users on the virtual platform.72 They should be effectively explored in the context of institutionalizing the right of access. In general, the answers to questions about the law of Virtual legal space exacerbate the problem of establishing the limits of government-imposed law’s intensional interference and, in our opinion, allow us to clarify the idea of law as an autopoietic system. CONCLUSIONS Thus, comparative jurisprudence arises from the need for scientific reflection on the forms of legal communication established between actors who represent in certain legal forms the legal ideas of the legal culture with which such actors are associated. For civilization, the beginning of which initiated by significant changes in the forms of thinking, ways of organizing biosocial life and, accordingly, features of legal communication, chronologically defined by the Axial Age, it is initially about legal communication between representatives of urban law and those whom such representatives considered foreigners. 69 Mark A. Lemley and Eugene Volokh, “Law, Virtual Reality, and Augmented Reality”, University of Pennsylvania Law Review, CLXVI (2018), p. 1051. 70 James Grimmelmann, “Virtual Worlds as Comparative Law”, New York Law School Law Review, XLIX (2005), p. 147. 71 Lemley and Volokh, note 69 above, p. 1135 72 See Daniel B. Koburger, “Legal Implications of Public Spaces in Virtual Reality”, Landslide, XII, no. 1 (2019) (available online). JCL 19:1 (2024) 123 oleg a halabudenko Intertemporal comparative legal analysis demonstrates that the entire further process of development of legal cultures up to the present time has predominantly taken place in the dialectical form of interaction between City law and the law of other cultures. City law serves as a universal form of concentration of basic legal concepts that subsequently retranslated to the legal space beyond its jurisdiction and retains this property even when it loses its jurisdictional autonomy. The core of the legal culture that emerges from the dialectical unity of City law and the law of other communities is the Western legal tradition, which retransmits the unique code of legal communication known to us until today. During this period, a legal culture based on the Western tradition of law developed all possible forms of circulation and appropriation of goods, all possible and rationalized legal constructions to meet the needs of the existence of communities based on legal communication. The study of the unique code of legal communication proposed by the Western Tradition of Law is of particular importance for legal orders declaring European identity, and at the same time serves as a methodological basis for understanding the legal processes occurring in legal spaces at the global and regional levels. It is acceptable to assume that at present the arsenal of legal culture based on the Western tradition of law, at least within the nationally organized legal spaces, is exhausted. The real cause of the current crisis of humanity is connected with this state of affairs. There are signs of a kind of reversal (return) to the model that existed at the dawn of the formation of legal cultures united by the Western Tradition of Law, but this time at the global level, on the scale of humanity. It is about the increasing importance of the civilization of cities and, at the same time, the observed increasing crisis of national-States caused by their cultural heterotopia. At the same time, dramatic changes in the forms and ways of organizing the biosocial life of human communities are taking place against the backdrop of the contradictory process of globalization, leading to the formation of large legal spaces (regions) united by the commonality of legal culture. In addition, Virtual Legal Space, in which legal constructions immanent to it arise and function, is being added to the allocated loci of the actual legal map. In general, the examination of issues related to the changes on the legal map of the world leads to the conclusion that specific legal constructions have emerged in each of the loci mentioned above. However, the tensions between cultures that characterize each of these legal spaces must be overcome through legal communication in the interest of the continuation of human civilization under conditions of increasing conflict. In the current state of affairs the main question to be answered by comparative jurisprudence is to find the condition under which legal communication is possible. The state of affairs under study is characterized by a tangible primordial contraversion. On one hand, dialogue between cultures is possible if the code of communication is agreed and accepted by all participants in legal communication, but this is possible only if they accept a common legal tradition. On the other hand, we should recognize that every legal culture is a culture of values only for its representatives and does not necessarily correspond to the civilizational ideal. Comparative law should give an answer to a fundamental question: is it possible to apply its previously accumulated methodological arsenal to new 124 JCL 19:1 (2024) Basic Transformation of Legal Pictures realities, when it is not a question of comparing the formants of different legal families, but of ensuring legal communication of human communities in crisis? In current circumstances perhaps we should abandon the search for universal methods of comparative law, since each specific method or approach (functionalism, law and economics, theory of legal formants, and so on) is relevant only to a particular legal culture. The effective application of a particular approach (method) in comparative law is only possible if there is a metaepistemic paradigm that is accepted by the participants in legal communication. The problem of legal communication is not rooted in the plurality of methods of law, but in the peculiarities of legal cultures that have an autonomous idea of law in its ontological dimension. The plurality of legal cultures, in turn, predetermined by the differentiation of legal space, more precisely, by the existence of multiple legal spaces (homogeneous or heterogeneous loci). Second, it should be recognized that the effectiveness of a tradition that unites legal cultures (in this case, such legal cultures are united into a homogeneous legal locus) is determined by its epistemic authority, which is achieved primarily by the actions of the communicating community. The need for dialogue between speakers of different legal cultures creates a new “legal situation” different from the one that existed within a particular legal culture prior to the communication. Third, human communities existing within legal cultures are autopoietic social systems, identical to themselves and reproduced by replicating a code of legal communication. The actors of legal cultures, in turn, are their representatives, and the results of their actions are legal artifacts. Consequently, legal culture is not absorbed by the general culture (civilization); it is autonomous and capable of self-development. However, in conditions where there is a need for dialogue, particularly in the process of globalization or regional forms of coexistence of different legal cultures, the autonomous discourse of one or more of them, if it is based on “legal pathologies”, becomes a threat to other legal cultures, and possibly to civilization as a whole. Fourth, it is necessary to recognize that only the need to overcome a conflict situation gives rise to a dialogue of cultures. In all cases, the real cause of conflict is related to the tension between political power and the consciousness structures of a certain culture bearers. But we believe that political power does not have its own autonomous discourse; it only represents certain forms, structures of public consciousness, and therefore conflictogenicity is caused by the collision of different structures of consciousness. In other words, the “clash of civilizations” is primarily a conflict between the consciousness structures of different legal cultures. Neither linguistic identity, much less formal unification of terminological apparatus, nor even formal unification of institutions can overcome the clash of legal cultures if they are based on different legal traditions. Fifth, the structures of consciousness, which are reflected and consolidated in the form of legal constructions that serve as the basic building blocks of legal culture – legal artifacts that absorb all other factors related to their existence. A legal norm, or more broadly – a legal formant is not an autonomous legal unit. These are merely segments of legal constructions, the existence of which have three dimensions: the level of public consciousness, the level of fixation in legal formants, the level of direct legal reality manifested in the forms of realization of the idea of law. Comparison is always a comparison of legal constructs that fulfill the same function in different legal orders. Hence, an interlocal comparison of JCL 19:1 (2024) 125 oleg a halabudenko relevant legal constructions may serve for communicative success, or at least an awareness of what is happening in the context of the need to establish a dialogue between different legal cultures. THE JOURNAL OF COMPARATIVE LAW Volume nineteen Issue one 2024 Editors WE Butler Michael Palmer An organ of The Association for Comparative Legal Studies Limited ISSN: 1477-0814 (Print) ISSN: 2767-1291 (Online) SKU: 2370001855779 www.lawbookexchange.com Cover design by Peter Lo Ricco CONTENTS Special Issue: The Worldview of Comparative Law Edited by O. V. Kresin W. E. BUTLER Introduction O. V. KRESIN O. V. Kresin World Picture of Comparative Law: “The Courage of Your Convictions” M. A. Damirli The Concept of Legal World Picture M. Nicolini “Writing the Earth and Representing the World“: The Cartographical Ambitions of Comparative Law O. Halabudenko Basic Transformation of Legal Pictures: Purpose and Method of Comparative Law J. Gordley Comparative Law and its Aspirations O. D. Tykhomyrov Comparativism, Philosophy of Law, and Comparative Jurisprudence D. O. Tykhomyrov O. V. Tkachenko After the “Picture of Law”: Legal Comparison as the Discourse of the Existence of Law A. Saidov National Legal Systems in the Context of Comparative Law A. V. Egorov National, Transnational, and Global Law: Trends of Development and Interaction H. Behruz The Impact of Religions on Law-Making and Classification of Legal Systems (Islamic Law) S. P. Rabinovych Conception of Human Rights as Component of Religious Legal System (Contemporary Catholicism) W. E. Butler Universality and Non-Universality in International Law: Comparative Reflections and Implications E. O. Kharytonov The Private and Public Law Dichotomy as the Paradigm of Global Law: Reality or Myth? O. I. Kharytonova M. Gutan The Concept of “Imitation” and its Epistemological Relevance in Comparative Law and Comparative Legal History C. M. de Iuliis The Business Judgment Rule in Anglo-American and Civil Law Systems: An Underlying Worldview G. Samuel Can Methods from the Social and Human Sciences be of Value in Understanding Comparative Law Methodology? A. Mercescu Units of Comparison Beyond (National) Law M. Graziadei Contested Economic Maps of Legal Systems M. Giraudo C. Varga Legal Images and Understandings of Law: Juristic Assumptions and Results, Student Evaluations and Choices C. Valcke Comparative Common Law Teaching: Why it is so Hard W. E. Butler Recently Appeared 19.1 • 2024 The Journal of Comparative Law