21 May 2010

Comparative Law and Stability Operations: A Basic Overview and a Few Thoughts on Lésion

For my final blog post, I would like to discuss an area in which comparative legal concepts are of utmost importance – the burgeoning field of state-building and what is now referred to (in the military lexicon) as "Stability Operations." As part of the ongoing state-building efforts in Iraq and Afghanistan, the U.S. government has engaged in a great deal of legal reconstruction. But the wholesale re-creation of a legal system is obviously a task of extraordinary complexity. In the context of state-building, not only must one successfully create a legal system that is theoretically functional, but one must then teach this system to a country of lawyers, judges, and legal personnel that have (up to that point in their legal existence) conceived of law and legal practice in their own way. As such, it is no surprise that the most successful programs to restore the rule of law in weakened or failed states have been those rooted in the traditions of the local citizenry.

This is true not only because pre-existing organic legal systems often have the advantage of being tested through years of legal practice, but also because organic institutions are more likely to be perceived as legitimate. Historical evidence from the colonial period indicates that maintaining and empowering the organic legal institutions encourages stability by preserving governmental legitimacy. And as the U.S. Army Field Manual 3-24, Counterinsurgency, states, “Long-term success in [counterinsurgency] depends on the people taking charge of their own affairs and consenting to the government’s rule.” The most direct doctrinal recognition for the need of comparative analysis, however, is contained in paragraph 6-91 of U.S. Army Field Manual 3-07, Stability Operations, which reads:
To enhance host-nation legitimacy, justice reform should build upon the existing legal framework. This may include common law, civil law, criminal codes and traditional or religious law, as well as international law. SSR planners do not impose their concepts of law, justice, and security on the host nation. The host nation’s systems and values are central to its development of justice system reform.
Comparative law is, thus, expressly recognized in U.S. Army doctrine as a key component of a core military function -- taking it out of the realm of a purely academic enterprise and acknowledging its very practical purpose.

It also worth noting here that another consideration for international actors effecting legal reconstruction is the regime of international legal rules governing occupation. Article 43 of the 1899 and 1907 Hague Conventions Respecting the Laws and Customs of War on Land requires that an occupying power “re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” In his Commentary on the Geneva Convention, Jean S. Pictet expressly notes that this language means that an occupying power may not alter the legal system of the occupied state merely to bring it into accord with the occupier’s own jurisprudential conceptions.

There are, therefore, practical and legal reasons for choosing to empower the organic legal systems of weakened or failed states rather than creating new systems altogether or unnaturally altering them to conform to more familiar legal institutions. Comparative legal studies can, thus, inform and guide a international actor’s decisions in rebuilding a failed legal system. But, beyond that more basic purpose, a knowledge of comparative law may help international actors in implementing new concepts (consistent with the host nation’s legal tradition) to solve internal problems. Take, for example, the legal system of Iraq and its primary civil legislation – the Iraqi Civil Code.

The Iraqi Civil Code represents a synthesis of Western civil law (mostly inherited from the French via the Egyptian Civil Code) with Islamic legal principles. And today that legal system is challenged by an enormous displacement crisis. In contemporary Iraq there are over 5 million Iraqis displaced by violence―2.7 million of whom are internally displaced within Iraq. Such a situation creates not only a humanitarian crisis, but also a perverse opportunity for insurgents and militia groups to exploit the displacement crisis in order to legitimize themselves and achieve geo-political goals. Consequently, the issue of displacement and the search for a solution to the current crisis has become a salient issue for military commanders conducting counterinsurgency operations.

The causes of this displacement are manifold and various. Displacement of persons in Iraq has been perpetrated in numerous ways—including violence and the threat of violence. But while the sight of someone signing a contract at gunpoint might be an obvious indicator of duress and would give rise to rescission based on basic principles of contract, not all forms of duress are so apparent or easy to prove. Someone who is forced to sell property due to threats made to a family member, or some equally pernicious though indirect exercise of violence, may not be able to prove his or her claim in a legal forum. Because of such circumstances, I have argued in past writing that Iraqi legislators should seek to provide greater relief through the adoption of a traditional civilian concept which is currently absent from their civil code -- the concept of lésion.

The term lésion refers to the substantive unfairness of a transaction due to the disproportionate nature of the contract. The classic example of lésion operating to invalidate a contract is in the sale of an immovable for less than seven-twelfths of its value. Writing in 1833, Professor A. M. Demante explained this concept:

Quoique en general la lésion ne soit pas une cause de restitution pour les majeurs, la loi, prenant ici en consideration la position du vendeur, que le besoin d’argent force souvent a vendre au-dessous du juste prix, lui accorde l’action en rescission; mais pour cela, il faut: 1. que l’objet vendu soit un immeuble; 2. que la lesion soit plus des sept douzièmes. Du reste, cette rescision, fondée sur l’équité, a lieu nonobstant toute clause ou stipulation contraire; car ces clauses, qui d’ailleurs seraient devenues du style, sont infectées due même vice que la vente.
The French legal tradition, therefore, automatically concludes that certain contracts are so disproportionate or contain certain indicia of unfairness that give rise to an automatic action for rescission by the seller. Commentators note that the concept has expanded through time and, through legislative augmentation, numerous types of contracts in contemporary France are now subject to rescission for various indicia of unfairness.

The Iraqi Civil Code―a descendant of the French Code Civil—could be amended to incorporate this concept and tailor it to an Iraqi-specific context. This could be done in a more obvious manner, such as adjusting the proportion in the selling price of the immoveable upwards or downwards. It could also be adopted in a more creative context―such as deeming all transfers of property conducted in a certain place during a certain time unfair due to the level of violence and history of displacement. Displaced persons, therefore, would be granted an additional protection through the ability to rescind certain transfers of immoveable property based on objective criteria.

Such a change would not, of course, be a panacea to all of Iraq’s displacement woes, but together with the constellation of protections currently available in the Iraqi Civil Code, they would buttress the legal armaments available to the displaced and facilitate the just resolution of property disputes in a forum that is effective, consistent with Iraq’s legal tradition, and – quite importantly – legitimate.

Comparative law, therefore, is of central importance to state-building as it both informs the basic decisions international actors must make in conducting such operations and reveals areas of potential modification that allow for helpful adjustments that are faithful to – and compatible with – the host nation’s legal system. This is consistent with the quote I highlighted in my initial post,“Comparative law is an ‘ecole de vérité’ which extends and enriches the supply of solutions and offers the scholar of critical capacity the opportunity of finding the ‘better solution’ for his time and place.” The field of comparative law allows practitioners, legislators, and policy-makers to explore a wide “supply of solutions” to many of the pressing issues with which we are currently confronted. This is what makes the subject so endlessly fascinating – and (as the U.S. military now recognizes) so practical.

I would again like to thank Professor Seán Donlan for inviting me to serve as a guest blogger. This has been a great experience and I look forward to working with him in the future on other similar projects.

Sapere aude!


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