Formants and Legal Comparison. A Brief Note on Crittotipi
Today, I will delve into the topic of the role of formants in legal comparison and briefly analyze the figure of cryptotypes, which, although little visible, are fundamental for comparative analyses.
Let us begin from the premise that before analyzing the central phase of comparison, it is necessary to: know the terms to be compared and understand the system of legal sources in the systems involved.
The activities of legal comparison are particularly complex because when evaluating a legal phenomenon it is not sufficient to focus solely on the legislative material; it is necessary to study all the formants: namely, legal, doctrinal, and jurisprudential. At the same time, one must understand the weight that these formants have in the legal system involved in the comparison.
Thus, in legal comparison, the formants represent the various elements that constitute legal systems and allow for their comparative analysis. According to the definition provided by Rodolfo Sacco, one of the foremost experts in the field of comparison, the formants are the different factors that influence the formation of law in a given society.
Sacco identifies a plurality of formants, including the law, jurisprudence, doctrine, and social practices; each is fundamental and determinative to varying degrees in the identification of the law in force in a given context (Sacco, Rodolfo. “Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II).” American Journal of Comparative Law, vol. 39, no. 1, 1991).
- The legal formant comprises the written norms enacted by legislative authorities.
- The jurisprudential formant is made up of the decisions of courts, which interpret and apply the norms to specific cases, thus contributing to the development of law.
- The doctrinal formant is represented by the studies and publications of jurists. It influences the law by providing interpretations, critiques, and proposals for reform.
- Finally, social practices include customs and usages which, although not formally codified, play an important role in many legal systems.
Thus, according to Sacco, the formants are not just the written laws but also include jurisprudence, doctrine, contractual practice, and commercial usages, which together form the fabric of a society’s law. These elements influence each other and may vary in importance from one system to another. Sacco’s approach highlights the complexity and dynamism of legal systems, challenging the more traditional view that sees law primarily as a set of written norms.
His theory of formants underscores the importance of comparative analysis to understand how similar practices can derive from different formants in different legal systems, or how different practices can result from divergent evolutions of the same formant in similar legal systems.
His approach has profoundly influenced comparative studies by promoting a greater openness to the diverse manifestations of law and contributing to a more holistic and in-depth understanding of global legal systems.
Other authors, such as Zweigert and Kötz, have emphasized the importance of legal comparison for understanding the various legal families and for improving international legal integration (Zweigert, Konrad, and Hein Kötz. Introduction to Comparative Law, 3rd ed. Oxford: Clarendon Press, 1998). Through the analysis of formants, legal comparison thus offers a rich and detailed picture of legal systems, highlighting both cultural and historical specificities and global trends in law.
Returning to Professor Rodolfo Sacco, he adds a very important argument to the complete framework of comparison: crittotipi! With this term, he indicates the formants of the legal order, essentially invisible, unspoken formulas that migrate through the thought of jurists or those who are called upon to apply the rules.
In legal comparison, the crittotipi represent key concepts for understanding the deep structures and specific functions that characterize and differentiate various legal systems. This term, derived from the union of the Greek words “kryptos” (hidden) and “typos” (model), was introduced to highlight those legal structures or mechanisms that, although not immediately evident, play a fundamental role in defining the identity and functioning of a legal system.
The crittotipi concern the underlying structures that guide the interpretation and application of the law, profoundly influencing the legal culture of a society without being immediately perceptible. They are important for comparative legal scholars, as they allow one to delve deeper into the analysis of legal systems, going beyond the surface of written norms to explore the cultural, historical, and social roots that influence the law. They help to understand how seemingly similar practices can derive from very different assumptions in different legal systems, or how legal institutions that appear homologous may, in reality, have different functions and meanings because of their crittotip.
Dott.ssa Luana Fierro
30/03/2025
