Vol. 21 No. 9 (September, 2011)
WHAT IS PRIVATE LAW? by Guido Alpa, translated by Antonio Lordi. Durham,
NC: Carolina Academic Press, 2010. 184pp. Paper $25.00. ISBN: 9781594607905.
pp.
As we are told on the cover of this book, Guido Alpa, who is Professor of Civil
Law at the University of Rome ‘La Sapienza’, is one of Italy’s leading legal
scholars. He has held visiting professorships in the US, the UK, France and
Spain and has been honoured by universities and other organizations around the
world. His professed expertise is in private law and legal theory. Antonio Lordi
is a practising international lawyer and an adjunct professor at Duquesne
University School of Law.
What is Private Law? has
six chapters. Chapter 1 focuses primarily on the sources of private law. Chapter
2 deals with issues around "the beginning and end of human life." Chapter 3
explores the concept of personhood, which is central to Alpa’s understanding of
private law. Private law, he says, "is at
the service of the person"
(p.162, original italics); it ‘begins with the person’ and the justice of
private law resides in its ‘protection of the person’ (ibid). Chapter 4
discusses the basic private law categories of property, contract and liability.
Chapter 5 examines the relationship between private law and the market. The
foundation of the analysis in this chapter is the idea that private law injects
justice (the justice of protection of the person) into the operations of the
market. Chapter 6 discusses what Alpa calls "difficult cases" – a heterogeneous
collection of issues including Member State liability for breach of European
Union (EU) law, the concept of "consumer", wrongful life claims and tobacco
litigation. As is suggested by this brief account of the contents of What
is Private Law?, the book covers much ground and is certainly not in the
mould of mainstream Anglophone philosophical discussion of private law typified,
perhaps, by Ernest Weinrib’s The
Idea of Private Law (Weinrib
1995). This work is at once steeped in the history of European law and sensitive
to the contemporary landscapes of Italian and European political, social and
legal culture.
What is Private Law? is
the second in the "Comparative Legal Thinking Series" which is edited by Kirk W.
Junker, Associate Professor of Law and Director of International Programs at
Duquesne Law School. In the Series Editor Preface (sic), Junker tells us that
the "series is designed to give students and practitioners in the
English-speaking world an opportunity to see how their counterparts in other
legal systems learn to 'think like a lawyer'. Rather than present the legal
thinking of other cultures as secondary literature in the third person, this
series takes representative, formative and primary works that students in other
countries read during their legal education and translates these works for the
English language reader" (p.ix ). In
his own (notably lengthy) preface, Lordi explicitly directs his comments to ‘the
American lawyer’. It seems fairest, then, to assess this translation as an
introduction to Italian private law in particular, and private law in civil law
systems more generally, addressed primarily to a US audience of law students and
practising lawyers rather than English- [*582] speaking scholars of private law
or comparative law. I say ‘this translation’ deliberately because although it is
not clear to me who Alpa conceived his audience to be, it seems obvious that he
did not have a foreign reader in mind.
The book has several pervasive themes. One is that to a significant extent,
private law responds to and is a reflection of the society of which it is part,
and the problems and issues faced by society and its political system. A second
theme is that modern Italian private law has many and various sources, and is
subject to many and various influences both from within Italy and from without.
A third theme is that one of the strongest and most important of the external
influences on Italian private law is EU law and the movement that it has
generated and inspired for the development of common principles of European
private law. A fourth theme concerns the importance of ideas of fundamental
rights in moulding the concept of ‘the person’ which is central to Alpa’s
understanding of private law. A fifth, subsidiary theme is the impact on private
law of the growth of regional government within Italy – which, it seems, is
raising issues analogous to those associated with federalism and tort law in the
US. The strength and interest of Alpa’s approach is its insistence that private
law is a dynamic social phenomenon of great economic and political importance,
the development and significance of which cannot properly be understood without
paying careful attention to the various contexts in which it operates.
However, in my opinion, the series editor has done the author a considerable
disservice in including this book and this translation in the series. At first,
the basic idea of the series – namely to introduce the reader to a foreign legal
system not by describing that system from the outside but by providing the
opportunity, as it were, to sit in a foreign classroom – struck me as both
innovative and exciting. Unfortunately, reading this translation of What
is Private Law? made me all too
aware of the project’s difficulties and pitfalls. First, despite ‘globalisation’
(whatever meaning is given to that term) and the exponential growth in recent
decades of planned legal transplantation and of supra-national and
trans-national legal regimes, legal knowledge remains, to a significant degree,
local knowledge. The task of conveying local legal knowledge to locals is very
different from that of conveying it to outsiders. On the evidence of this book,
the fact seems to be that Italian lawyers (for instance) ‘think’ differently
from US lawyers (for instance), and if they are to understand it, US lawyers
need Italian legal thought explained, not merely presented, to them. Even within
the common law world, Australian lawyers (for instance) think in significantly
different ways from US lawyers (for instance). Without much more background than
Alpa provides, this book is just as likely to confuse as to inform the typical
US law student or lawyer, who would do well, in my opinion, to begin with a book
such as John Merryman’s classic, The
Civil Law Tradition (Merryman and
Pérez-Perdomo 2007).
Second, the series editor implies that What
is Private Law? was written and
intended as an introduction to Italian law for Italians. However, it is by no
means clear to me that this was Alpa’s intention. Writing successful
introductory books about law is an extremely demanding task, requiring a
delicate balance between information, explanation and analysis. Alpa’s
discussions assume that the reader already has a significant store of knowledge
about Italian and EU/European law, and his apparent aim is to develop large
themes (such as those [*583] outlined
earlier in this review) by reference to the past history and current social,
political and economic milieux of the Italian legal system. I am not in a
position to judge how accessible this book would be to the average Italian law
student; but as an introduction to Italian private law for the average US law
student it makes unrealistic demands on the reader.
My third reservation about the book concerns the translation. Knowing no
Italian, I am unable to assess how accurately or faithfully it renders the
original text. However, as English, it leaves much to be desired. I found many
passages and sentences in this translation to be so opaque as to border on the
meaningless. To make matters worse, the production is burdened with a
significant number of typographical errors – although in some instances it is
difficult to be sure that the error is not syntactical. The vocabulary of the
translation adds to its obscurity. Leaving aside neologisms (such as
"jurisprivatist" (p.161)), Lordi makes considerable use of such obscure Latin or
Greek derivatives as "consuetudinary" (p.11), "dubitative" (p.19), "taxative"
(p.32), "cadastral" (p.61), "petitory" (p.79),"syntagm" (p.115) and
"divarication" (p.115). A particularly striking example is the author’s use of
the term "anatocism" (p.142), meaning "compound interest." There are also what
seem to be simple mistranslations. For instance, the "sentence" of a court is
used to refer to its decision or judgment (e.g., p.24); and the term
"deontological codes" is used to refer to professional self-regulatory rule
regimes (pp.28-31). Such mistranslations are particularly ironical because in
his preface, Lordi warns the reader about what he calls "false friends" – that
is "words in two languages that look and sound similar, but differ in meaning"
(p.xiii). It is, perhaps, a tribute to Alpa’s clarity of vision that his main
themes shine through so clearly.
I greatly regret expressing such significant reservations about this book. The
project of the series is novel and potentially very fruitful. However, great
care will need to be taken both with the selection of texts and their
translation if thoroughly laudable aims are to be achieved.
REFERENCES:
Merryman, J.H. and R. Pérez-Perdomo. 2007. The
Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin
America. 3rd ed.
Stanford, CA: Stanford University Press.
Weinrib, Ernest. 1995. The Idea of
Private Law, Cambridge, Mass: Harvard University Press.
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© Copyright 2011 by the author, Peter Cane.