1 Introduction

While comparative law has historical roots dating back to the inception of measurements of similarities and differences among legal systems, it has yet to establish itself as a prominent field within modern legal studies when compared to traditional areas like criminal and private law. Ongoing debates on its nature, methodology, and other aspects persist [on legal comparison and method among others see: 1,2,3,4,5,6,7,8]. The unique relationship between comparatists with various legal and non-legal disciplines, has led to consequences, including the fundamental question of the scope and nature of comparative law [see among others: 9, 10].

Rodolfo Sacco emphasized that the debate surrounding the scientific nature of comparative law stems from an inadequately formulated question. Viewing every field as a blend of science and methodology diminishes the theoretical significance of the dispute between science and method [11,12,13,14]. It is crucial to recognize that the use of comparative law enables observations and insights inaccessible to those solely focused on the law of a single country. Various methods and methodological tools in comparative law should shield practitioners from simplistic perspectives or nihilism, serving as essential tools for understanding law as a global phenomenon [10, pp. 50 and 277].

This contribution aims to elucidate specific aspects of Rodolfo Sacco’s influential work in comparative law,Footnote 1 illustrating how it continues to shape the perspectives of young scholars. It delves into two key aspects of his research that significantly still influence the work of a young scholar and briefly underscores the importance of legal comparison in the contemporary European legal context.

2 The First Influence

The “legal formants theory,” a cornerstone in Sacco’s teachings, represents a methodological contribution to comparative law. This theoretical framework is deeply rooted in the post-World War II tradition, which was initiated by scholars like René David in France, Konrad Zweigert in Germany, and Gino Gorla in Italy [17,18,19]

The word formant is borrowed from linguistics, where the structuralist approach had its origins, a point well acknowledged. Sacco considered the 1965 publication of “Définitions savantes et droit appliqué dans les systèmes romanistes” in the Revue internationale de droit comparé, along with the publication of “Contratto e negozio a formazione bilaterale” [20] during the same period, to be the first outlines of his theory of legal formants. His theory was introduced to the scientific community in 1974 with 'Les buts et les méthodes de la comparaison du droit’ [17, p.10], an Italian paper for the IX International Congress of Comparative Law. From 1980, the book “Introduzione al diritto comparato” [21] helped popularise it among students [see also: 22].

Sacco's theory emphasized the role of legal formants (components, from the French word composants) within every legal system. These formants encompass norms from legislators, judicial decisions, and scholarly works specific to legal domains, challenging the traditional monolithic view of legal systems. Instead, legal systems are recognized as fluid structures shaped by diverse—and sometime conflicting—components. In contrast to positivism, which confines legal norms to official sources, comparative law embraces a spectrum of legal rules and institutions. Formants act as dynamic contributors, actively shaping the distinctive characteristics of each legal system [23, 24, p. 25].

This methodology facilitates visualizing the inherent dynamism in cross-system comparisons [13], revealing how each legal system is influenced by distinct components. This approach allows for discerning differences between declamation statements and operational rules, as well as understanding the dissociation among different formants [25, p. 49; 13, p. 385].

Initially addressing specific legal issues and providing precise legal answers, formants have transformed into enduring assets for scholars in comparative law. They transcend various historical periods and legal environments, proving invaluable for comprehending the inherent complexities of legal systems [6, 26]. It is essential to acknowledge the intricate connection between comparative law and formants, with the core aim of the formant approach being to challenge the positivistic notion equating normative declarations with written legal norms [27].

Obviousness is portrayed as both a strength and a weakness of this idea [27, 28, par.44]. Nonetheless, even if it may appear clear to some scholars, disrupting the principle of unity that in the general imagination firmly represents the law shapes the minds of students taught in comparative law through the formant theory.

The strength of the work of Sacco is testified also by the fact that even if elaborated in a different period, in which a strictly positivist approach was prevailing, it can be still up to date. It not only highlights the dynamic nature of legal systems but also proves applicable to contemporary contexts, such as the complex structure of the legal system of the European Union (EU) [29, 30].Footnote 2

Indeed, over the years, the evolution of the legal formants theory has underscored that the European Union (EU) legal system comprises diverse components and among them, the decisions of the Court of Justice of the European Union (CJEU or Court), the opinions of Advocates general. This awareness highlights the role of judges of the CJEU, and their interpretation is essential to determine the meaning of a legal text or a term [13, 29, 30].

3 The Second Influence

The exploration of the relationship between law and language was a significant aspect of Sacco's research interests. Beyond drawing parallels between linguistic and legal structures, he emphasized the indispensable role of language in understanding and practicing law [32, p. 126].

According to Sacco, “(a)ny student can benefit from some well-written literature, and linguistic analysis can teach something to any comparable science” [33, p.7]. A first hand understanding of language is crucial for effective comparative work, especially in the legal realm, where ‘form is substance’ [10, p. 153].

Despite Sacco's acknowledgment that law precedes language [33, 34], and not all law is verbalised, it is indisputable that the linguistic manifestation of law is the prevalent one today [35, pp. 63–65].

This profile of the legal phenomena has gained increased importance due to globalisation, Europeanisation, and the complexities of our contemporary context. It favours the emergence of new legally relevant situations, necessitating language systematization and assessment. Over time, this has led to the fragmentation of law and the growing need for its unification or harmonisation. Nonetheless, as stated “le parcours qui mène au but est encore long” (translated in English: the path leading to this goal is still long) [32, p. 7].

As widely recognized, Sacco emerged as a pioneering scholar who actively explored the role of language in the harmonisation process of European law, exemplified by his influential publications: “Les multiples langues du droit européen uniforme” [32] and “L’interprétation des textes juridiques rédigés dans plus d’une langue” [36].

Language plays a pivotal role in this process, it involves legal cultures and legal systems: for instance, the linguistic diversity of the European continent is a significant aspect of the cultural, common heritage, and European identity. The importance of language as means of cultural communication and social cohesion is at the core of the European institutions’ political choices to promote respect for and defence of diversity, both linguistic and cultural, and to raise citizens’ awareness of these values [37, 38, pp. 6–7]. The EU’s multilingual regime, a unique and debated system, adds complexity to this scenario. For instance, we recall, among others, the point of view of C.J.W. Baaij in his book “Legal Integration and Language Diversity: Rethinking Translation in EU Lawmaking”. According to the author, the key to consistent interpretation and application of EU law lies in the field of translation. He critically assesses current translation practices in the EU legislative process and advocates a new approach: the ‘source-oriented’ approach, suggesting that the English language version should be considered the original and only authentic legislative text. This approach favours syntactic correspondence and the use of neologisms for EU legal concepts over the clarity and fluency of translations into other languages [39].

While numerous opportunities exist for learning foreign languages today, and AI-driven translation tools offer the capability to comprehend and generate content in unfamiliar languages, it is crucial to acknowledge the distinct challenges associated with legal language and the translation of legal concepts.

In multilingual legal systems like Italy and the Trentino South-Tyrol region, where norms are formulated in multiple languages due to bilingual legislative features, the significance of the law-language relationship is even more pronounced. Moreover, some of these systems are simultaneously members of the unique multilingual institution of the EU [40].

Within the EU’s multilingual regime, characterized by a multi-layered translation system, challenges arise from the interpretative pluralism, the borrowing of technical terms from national and international law [41, p. 168; 42], but at the same time the autonomy of the EU legal language and concepts. This complexity is of particular interest to comparatist lawyers.

In this context, the ability of comparative law analysis to extend to the periphery of legal boundaries and uncover components beneath the surface of concepts and terminology is particularly relevant. This is attributed to the culture-specific nature of EU legal concepts, intricately tied to the European system of reference yet comprised of interlinked linguistic elements detached from any national culture. Shaped and organized by multilingualism, EU law stands as an example of a complex legal system where the methodological toolkit of comparative law plays a crucial role in visualizing the linguistic structure inherent in EU legal discourse [23].

Against this backdrop, the following paragraphs briefly underscore the importance of legal comparison and linguistic analysis in the EU legal context, particularly in the work of the CJEU.

4 EU Legal Context and Comparative Law

Nowadays, the integral connection among comparative approach and methods with the EU legal language, law drafting, and interpretation is widely acknowledged. Comparative law, a crucial instrument at the time when the EU was born, has significantly contributed to its evolution. Comprehensive comparative studies have traditionally paved the way for legal harmonisation in expanding spheres of economic and political integration [43].

The impact of the comparative perspective extends beyond influencing the text of the Treaties and the design of European institutions [43, p. 88]. Institutions such as the European Commission or the Research Service of the Court of Justice frequently employ comparative analysis in the groundwork for adopting Union measures or interpreting acts [see among others: 44, 45]. The EU law approach is inherently pluralistic, marked by the coexistence and occasional clash of different legal cultures, where comparative law plays a central and indispensable role [28].

It is common ground that national legal data still play a role in identifying and differentiating legal systems. While recognizing the continuing importance of national data in identifying and differentiating legal systems, it is evident that in our increasingly globalised world, jurists should go beyond studying only their national legal systems and focus on supranational, international, and transnational law. For instance, as each legal system that joins EU is characterised by the coexistence of two layers of legal rules—national and supranational—comparative law becomes crucial in striking a balance between unity and diversity within the EU [46].

In this challenging context, it is not surprising that comparative law has demonstrated a keen understanding of its own methodology and role. A recurring question is whether comparative research can effectively document trends toward convergence or divergence within the European and national (or international/supranational) legal systems or among various national systems within the common European structure [43, pp. 100–101]. The EU’s interconnectedness with its constituent parts makes relying on traditional comparative legal approaches designed for comparing 'discrete and independent municipal law systems’ [23] challenging, leading to the development of new comparative approaches and an emphasized need for an interdisciplinary perspective. This perspective was clearly already acknowledged and welcomed by Sacco in his research, by underlying the connection, for instance, between law and language, but also anthropology, and history [47].

5 CJEU as a Comparative Law Laboratory

As already expressed, the decisions of the European judges can be considered as crucial components of the EU legal system. Moreover, examining the European courts, particularly the CJEU, offers researchers a multitude of compelling reasons for their interest. These include the court's institutional structure and organization, designed to mirror the traditions of the Member States. The concise style of reasoning in its judgments, resembling French courts, is complemented by a common law-style approach that draws on precedent and incorporates German concepts. Additionally, the court's case law, essential to determine the meaning of a legal text or a term, serves as a valuable illustration of the potential application of comparative reasoning [7, pp. 330–331].

It clearly emerges how they operate in a complex legal system, where it is fundamental to take into account not only the European context but also the national contexts of the different Member States. In addition, they have to decide on matters concerning individual cases, which means that the protection of individual citizens also plays an important role. As underlined by Senden the argumentation must also convince the Member States and the implementation of judgments depends on the cooperation of the Member States (to varying degrees). Judicial argumentation can play a central role [48, pp. 4–5].

National courts (constitutional, supreme or other) develop their style of argumentation within a specific legal tradition in a national context, a style influenced by the context of that specific country. Differently, the CJEU must develop a style of reasoning as a European court in an organisation composed of Member States with different legal traditions and styles of judicial reasoning [49], which influence its method of argumentation and have the effect of making it vulnerable to criticism [48, 50, 51].

Article 19, 1, b TEU lays down the principle of effective judicial protection, while letter b) states that the Court may give preliminary rulings “at the request of national courts or tribunals, on the interpretation of Union law or on the validity of acts adopted by the institutions”. A combined reading of some of the Court’s rulings suggests that, in interpreting EU law, the Court must strike a balance between different principles: on the one hand, that of effective judicial protection and, on the other, the principles of institutional balance and sincere mutual cooperation. To harmonise these principles and strike a balance, the Court adopts different methods of interpretation [52].

The CJEU, as the world's first supranational court, holds a unique position, emphasizing the crucial role of comparative law and the utilization of foreign legal principles [53]. It has evolved into a natural laboratory, amalgamating experiences from diverse legal traditions to ensure the consistent interpretation and application of EU law within the pluralistic framework of the EU [43, p. 88]. Acknowledged as a major source of legal innovation in Europe, the CJEU’s strength lies in its approach to comparative methods [43, p. 94].

It is widely recognized that the Treaties contain general and specific rules that authorize Union judges to rely on the comparative law method in situations involving the discovery and development of general principles of Union law (gap filling), the interpretation of Union law norms and concepts (interpretation), and the review of the compatibility of national law with Union law or of Union measures with higher-ranking Union law norms (compatibility review) [45].

The comparative method allows for a dynamic interpretation of European laws [54, p. 844] in relation to their purpose, objective and context [55, p. 64], and therefore the analysis of the use of the comparative method shows that it can help the dialogue between national and European judges. In particular, it is used to interpret Union law in accordance with the constitutional traditions common to the Member States. The Court draws on the legal systems of the Member States in order to find the solution best suited to the objectives of the Union. In this way, the Court does not seek to find "the lowest common denominator", but the solution that best reflects a task assigned to the Union or a growing trend in national constitutional law [56, pp. 166–167].

6 Comparative Law Method and Linguistic Analysis in the Judicial Interpretation

The Court is often consulted in order to clarify the correct interpretation of a European legal concept, as it is expressed differently in the various linguistic versions. Thus, in order to ensure the uniform interpretation of the norm, not only its semantic meaning, the Court rules on the norm and on the concept expressed. Starting with the StauderFootnote 3 and CILFITFootnote 4 judgments, the Court has emphasised that uniform interpretation requires that they be interpreted “in the light of the versions drawn up in all the languages” (Stauder par. 3) and that particular attention must be paid to “the characteristics of [EU] law and the particular difficulties to which its interpretation gives rise” (CILFIT par. 17).

In particular it worthy to recall the very well-known case C-283/81—Srl CILFIT and Lanificio di Gavardo (SpA) v. Ministry of Health is a crucial one in which the Court made a statement concerning consistent interpretation and established the principles which a national court must follow when called upon to interpret and apply a provision of EU law [52, 57,58,59].

In the CILFIT Case the Court recalls its function of ensuring the uniform interpretation of Union law and refers to the multiplicity of language versions [60, p. 1070]:

« les textes de droit communautaire sont rédigés en plusieurs langues et [que] les diverses versions linguistiques font également foi; une interprétation d'une disposition de droit communautaire implique ainsi une comparaison des versions linguistiques» (CILFIT, par. 18).

In this decision, as well as in Stauder, the Court carried out an actual linguistic analysis by consulting all the language versions (at the time four) that were equally authentic.

The requirement for interpretation “in the light of the versions in all the official languages” must be explained. Indeed, in 50 years, the number of official languages has increased to 24 [61], so it is unlikely that the judges will analyse them all in depth, even if they take all the versions into account [61, 62].

Therefore, this requirement does not mean that the 24 versions must de facto be compared, but that, especially in the event of discrepancies between them, none of the versions may be disregarded and the uniform meaning must be found for all the language versions. The uniform interpretation and application of EU law in all the Member States guarantees linguistic equality and legal certainty, which is made possible by the EU’s development of its own autonomous legal system [62, p. 174]. As already mentioned, however, there are cases in which the Court is called upon by the national court to intervene directly on the meaning of a European term. In such cases, it is clear that the literal interpretation of the provision does not always reflect its true meaning. For example, where the provision in question contains an autonomous concept of Union law the meaning of which differs from the way in which the same concept is defined by national law, the national court must also examine the normative context of that provision and the objectives which it pursues [52].

The issue has been recently clarified in the judgement C-561/19, emphasising that the national judge will have to assess the specific characteristics of Union law, the particular difficulties that its interpretation presents and the risk of divergences in case law within the Union, without even overlooking the difficulties that may arise from the existence of linguistic differences among the provisions of Union law. It thus clarifies in this respect that while a national court of last instance cannot of course be required to carry out an examination of each of the language versions of the EU provision, it must nevertheless take account of the divergences between the versions of which it is aware, in particular where those divergences are set out by the parties and are substantiated, without even neglecting to verify whether autonomous concepts—regulated by EU law—as well as the hermeneutical criteria proper to EU law come into play. As it has been observed, in this judgment the Court tries to give more information to the national courts. Emphasising that to ascertain whether the interpretation of EU law imposes itself without leaving room for reasonable doubts, the national court of last instance “…must, before concluding that such a situation exists, be convinced that the same evidence would also be required of the courts of last instance of the other Member States and of the Court”. Thus, a transnational dimension of the national court bursts onto the scene when it deals with EU law, which will have to wear a hat that goes far beyond its role as a domestic court to truly assume the guise of an EU court [58].

Even before the increase in the number of official languages of the EU, given the equal authenticity of the different language versions, and therefore the impossibility to ‘rely’ on only one of them, there were two main interpretations of the CILFIT requirement developed in doctrine. It was considered a strategic way of telling national courts that they should ask the ECJ for a preliminary ruling rather than undertake an interpretation on their own. Or, alternatively, that such a request, if taken at face value, would place an unbearable burden on the shoulders of national judges and that, consequently, this cannot have been the Court's intention” [63].

A third point of view is presented by Anne-Lise Kjær, according to whom the real problem with the rule of comparison is the assumption that it is possible to compare language versions (whatever the number) when it is assumed that the meaning to be compared is not anchored in the language of any of the texts. What must the interpreter compare? The author claims that without a defined starting point, the interpreter has no standard to compare against [63, See also: 64].

The omnipresence of multilingualism within the EU is evident not only in its production and interpretation but also in the application of Union law [60, p. 1068]. The practice of legislative drafting and legal interpretation of EU laws creates a terrain where legal languages stand in contact and can influence each other [62, p. 164].

On the one hand, equal respect for all the official languages, which now number 24, seems to be an expression and realisation of the principle of democracy. On the other hand, multilingualism, which in some respects is undoubtedly an important part of Europe's cultural heritage, is at the same time a source of many problems, particularly when it becomes necessary to draft, translate and interpret documents produced by the European institutions in all the official languages [65].

The task of ensuring the uniform interpretation of Union law by the Court is also carried out through the development of words that can promote this result.

The notion of interdependence of the language versions is the presupposition that the meaning of each of them is dependent on the meaning of the others. This has been presented as a vicious circle: the meaning of the parts is dependent on the meaning of the whole which is dependent on the meaning of the parts. It follows that the meaning of the legislative act resides in between the language versions, and that the Court and other interpreters must derive the meaning from this “in-betweenness” or, in other words, construe the meaning of the texts independently from the texts [63].

Nevertheless, this “in-betweenness” holds great importance and interest in this research. Besides the difficulties of comparison in this field, a comparative approach still can be a powerful and useful tool. Analysing and comparing words and concepts connected it is possible to guess the influence of culture and societal needs. This notion aligns with the concept of the hermeneutic circle, emphasizing the interactive relationship between normative texts and interpretive hypotheses. A well-formulated interpretive hypothesis, rooted in the concrete case, is crucial for avoiding ambiguity in the normative text. The reliability of such hypotheses is tested through a careful examination of the text, where legal methodology plays a pivotal role [66]—including comparative and linguistic analysis with reference to this work.

Moreover, in the realm of legal translation studies, particularly in the case of EU texts, a tailored theoretical framework is indispensable. This involves reevaluating and redefining classic concepts in translation studies and incorporating new approaches and notions, such as hybridity and in-betweenness [67].

Notably, within the European context, language serves as the instrument for harmonisation, with the Court of Justice playing a central role in this process [40]. The study of comparative law at the CJEU delves into the core relationships between the EU and national legal systems, the dialogue between Union and national courts, and the broader engagement with the international community [45].

7 Some Conclusive Remarks

To conclude these reflections, it should be acknowledged and recalled that Sacco's pioneering work in comparative law has opened up several areas of interest and research.

Sacco's dynamic approach to understanding legal systems as composed of various components rather than monolithic structures not only challenged traditional positivist notions but continues to offer valuable insights into contemporary legal contexts, including the complex structure of the EU legal system.

Against this background, the development and complexity of contemporary legal realities underline the continuing importance of comparative law, especially in the EU context, where linguistic diversity and the need for harmonisation pose unique challenges [6]. As already noted, the multilingual regime chosen by the EU leads to difficulties in drafting legislation, rulings and documents that maintain consistency of meaning and continuity across language versions [68]. The integral role played by the Court in the use of the comparative method and linguistic analysis for the uniform interpretation and application of EU law is of great interest to scholars and researchers today.

In essence, Sacco’s enduring contributions, the ongoing relevance of comparative law, and its pivotal role in exploring the complexities of the EU legal landscape represent indispensable tools for scholars and practitioners. These elements contribute significantly to understanding legal systems in our ever-more interconnected world.