by Guido Alpa, translated by Antonio Lordi. Durham, NC: Carolina Academic Press, 2010. 184pp. Paper $25.00. ISBN: 9781594607905.
Reviewed by Peter Cane, Australian National University College of Law. Email: canep [at] law.anu.edu.au.
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.
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.
© Copyright 2011 by the author, Peter Cane.