2.2 Max Rheinstein, Types of Reception, in Max Rheinstein, Gesammelte Werke – Collected Works, Vol. 1, Rechtstheorie und Soziologie, Rechtsvergleichung und Common Law (USA), p. 261-268 (presentation at the meeting of the International Association of Legal Science held in Istanbul, Spetember 1966 on the issues of the reception of the Swiss Civil Code in Turkey 1926, first published in Annales de la faculté de droit d’Istanbul (1956), p. 31-40
The text at hand was written immediately after a meeting of the International Association of Legal Sciences held in Istanbul in September 1955. It deals with the “typology of receptions”, a key issue of theoretical comparative law. One of the most vividly discussed questions at that meeting was that of deciding whether in the great legal reforms of the 1926’s Turkey had received the legal system of Switzerland as such and as a whole or just the Swiss Civil Code. The text first was published in Annales of the faculté de droit d’Istanbul (1956), pages 31 to 40. The text merits particular attention today since the taking over of the Swiss Civil Code in 1926 has evolved from a secular state in which Islam plays a new key role and since Turkey is applying to become a member of the European Union which at times is contested in major member countries of the EU.
Max Rheinstein had a thorough knowledge and a keen interest in Swiss civil law. The text Marriage breakdown in Ticino and Comasco was a text in point, an inquiry provoked by what was believed by the post-World War II hype of divorce at its heights in the United States. Max Rheinstein wrote the text as a member of a commission instituted by the American Bar Association. In the text, Max Rheinstein used American driven and legal sociology based methods to analyse among others, the question if there is a relationship between the substantive provisions on “reasons of divorce” and the “rate of divorce”. Max Rheinstein elaborated his discussions with Swiss and Italian experts and chose as an area of analysis the region at the Swiss-Italian border, constituted on one side by the Swiss Canton of Ticino and on the other by the Italian provinces of Como and Varese. The divorce law of the two countries differed widely while religious and socially relevant aspects were similar. On both sides of the border, the people speak Italian and in so far, as they are indigenous, do not seem too different. On both sides of the border the economic structures are similar and in both regions Roman-Catholicism is the predominant religion. The regions occupied the southern slopes of the Alps and the nearby plains. Out of the thorough analysis taking into an account of data and knowledge on Swiss law, Rheinstein found no relevant relationship between the substantive “reasons for divorce” and the “rate divorce” in the two jurisdictions.
Max Rheinstein (1899-1077) is a towering figure and international Lawyer. In September 1933 Max Rheinstein left Germany and went to the United States to study at Columbia University and Harvard Law School on a Rockefeller Foundation fellowship. Upon its completion in 1935 he chose to remain in America. He developed an international reputation as a legal expert in the areas of international and comparative law, family law, conflict of laws and the law of decedent’s estates.
The text of Max Rheinstein Types of Receptions addressed the question whether Turkey had received the legal system of Switzerland or just the Swiss Civil Code. It explores various dimensions of the theoretical concept of “reception” in comparative law. Rheinstein worked out a clarification of the issue by an attempt to more closely define the meaning of the term “reception”.
Rheinstein argues, that various types of receptions ought to be distinguished from each other. If we have these various types in our minds, it may be easier for us to determine the role of Swiss law in Turkey. The text argues that the distinctive feature in all cases of reception in which it is justified to speak of reception is the consciousness of the process. Consciousness in this context does not mean that the adoption must necessarily be achieved by one single act intentionally performed such as the taking over of the Civil Code of Switzerland into Turkish law in 1926.
In unfolding the typology of receptions, Max Rheinstein excludes similarities due to independent parallel developments. According to Rheinstein it might be appropriate to eliminate those numerous cases in which legal phenomena where a given legal climate are consciously introduced into a different one, but without voluntary adoption. In other words, according to Rheinstein, the imposition of a law upon a conquered or otherwise dependent nation by an external dominant group should not be called reception. The text expounds that this phenomena, which Rheinstein calls imposition, can occur in various ways. In this text, Rheinstein further distinguishes from reception in the strict sense of the word and argues for a distinction of the situation, which might be called the transplantation of legal phenomena. The exclusion is followed by a series of examples. According to Rheinstein therefore “imposition” and “transplantation” constitute phenomena, which produce effects similar to those of reception, but in their inception they are different. The term “reception” should preferably be preserved to those situations in which legal phenomena of one legal climate are consciously and willingly adopted into another legal system.
Regarding the term “legal phenomenon” Rheinstein argues, that in this connection, contrary to that of reception, it becomes necessary to be more specific because it seems that the characteristics of reception were greatly depending upon the kind of legal phenomena which are being received in a particular case. As in the case of imposition, the subject matter of reception may be constituted by just one single sentence of a single statute, or the total of the codes and the statues of the model country or any group of legal roules lying in between these extremes.
The text then differentiates the receptions of one particular statute and the reception of an entire code as the codes of Germany, France and Switzerland. The text further argues that in none of the countries of origin did the coming into existence and taking over of these codes constitute a radical brake from the legal past. All three codes, those of France, Germany and Switzerland, rather appear to be consolidations, unifications and modernizations of pre-code traditions. The enactment of none of them required a total shift to new methods of legal thought. The receptions in countries belonging to the same traditions were not accompanied by any changes, which would have been more far-reaching than those which had occurred in the mother countries of the code adopted.
The Swiss-Turkey relationship in mind, the situation is different according to Rheinstein when a western code is received by a country where traditions of legal thought and method have been markedly different from those of Modern Western Europe. “It is in the context of such receptions that we are alerted to the fact that there are receptions which are characterized not so much, or not only, by the adoption of the contents of statutes or codes of foreign origin, but by the adoption in one legal system of a method of legal thought which have so far been characteristic of another legal system”.
The basic observation of legal phenomena in such context of reception is analysed based upon the observation that the great legal systems of the world are characteristically different from each other; not so much by the confluent of the rules of substantive law as by the method in which the administration of justice is organized and the ways in which the work of the minds of those men by whom the particular system of administration of justice is dominated. The work entitled Economy and Society of Max Weber called these men the legal honoratiores as regards to and in connection with the reception of the Swiss Civil Code in Turkey. Rheinstein ends with this element statement: “The decisive feature of the “Reception” was thus the combination of the reception of a great code with that of a new method of legal thought as brought about by the replacement of one group of legal honoratiores by another. Similar effects can be expected to occur in the Islamic countries in which there has occurred not only the adoption of Western codes but also the substitution of jurists trained in the scholarly methods of Western legal thought for the older group of theological-legal honoratiores of Islamic traditions.”