The Concept of Legal Convergence

Abstract

The concept of convergence of legal systems stands for a leading idea in the modern discipline of law. Whereas one could neo-romantically still perceive law as a Landesjurisprudenz, a sort of provincial and domestic study, it would be fair to maintain that, after the end of the Second World War, the concept of legal convergence of systems has become of paramount importance in the national, the regional and the international sphere. The discipline of law has, thus, effectively departed from its narrower and more nation-oriented roots post the 1648 Westphalian paradigm, albeit not always and not necessarily. Concurrently, the phenomenon of convergence of legal systems has had wide-ranging implications in the political, legal and economic life of the world’s modern republics. Even systems which would resist convergence projects initially, would eventually subscribe to such projects (contagion theory of legal systems). The magnificence of such a leading idea as the concept of legal convergence arises from no other reason than the fact that convergence is a multifaceted, multimodal and flexible phenomenon. Convergence of legal systems can, therefore, occur either through centralised or decentralised modes (top-down and bottom-up legal convergence). Close to this, one would be reminded that a thing is beautiful, in that it partakes in beauty itself. And a system tends to benefit from a convergence circle, in that convergence is something that tends to come with benefits for systems that partake in such a circle. Indeed, in its ideal form, the concept of legal convergence can be either an organic self-perfecting, self-evolving reality or a constantly updated centrally designed project. The Platonic ideal of the one effectively amounts to nothing else but a yearning for simplicity, as Merryman put it, our world frequently presenting us with a rather chaotic, disorderly and perplexing state of affairs in so many aspects of human existence. Law, traditionally, despite its formalist and modernist credentials, has added to this rather chaotic world with its nationalist and inward-looking deviations. Almost any of Kafka’s works would readily point to this direction. The chapter recognises that there were times when law would be a synonym to the nation (and vice versa); yet, the new world legal and economic architecture that arose out of the ashes of a bloodstained and torn humanity more than seventy years ago was actually engineered on the premises of international legal and political cooperation. Finally, against the background of the economic and financial crisis, that is with us for more than a decade now, this contribution explores the essence of the idea of legal convergence by recognising amongst other things the relation of legal convergence to economic convergence in the industrial world. It further attempts to assess the feasibility of genuine legal convergence projects by referring to leading examples of legal harmonisation in Europe and the world and by exploring the theory of legal transplants, the theory that acts as the cornerstone of the modern legal convergence thesis. The chapter concludes on the need for the greater democratic legitimacy of convergence projects, especially when it comes to ones that would not be the result of organic decentralised growth but of central design.