LOOKING FOR THE CAUSES OF A CONVERGENCE : THE

Recent comparative law studies have remarked the role of “metalegal” formants for a complete description of legal language. It is necessary to recognize the dialectic character of a social product – as law – which explain the matters related with a legal command effectiveness. Is the subject of legal studies the construction of a method of social analysis? Or any study must take into consideration any particular social experience without possibility to build a general method? In the first case we affirm that in similar social context the normative rules assume a certain degree of similarity. In the second, we deny any logic of the legal experience: thus, every legal system is “singular”. In order to exit from this contrast, we should look at what is moving inside the social organization and realizing the law “as social practice”.


INTRODUCTION
As one of the main outcomes of comparative method is shaping models of knowledge related to a particular branch of law, the matter of their "effectiveness" has gradually gained a central position within jurist's debate. A «juridical model» is the «arrangement» used to represent one or more legal experiences, thus, a combination of abstractionsrespecting a prearranged logicto which their description has been devolved.
The organization of the complexity of a legal phenomenon is a necessary premise to communicate the information acquired by the observation of normative facts. The jurist's perception plays an important role in that systematization: the way he/she focuses on particular features explains the criteria used for the conceptualization of the normative language and the classification that follows.
There is a preliminary point that we might take into account: any classification of legal models needs foreign law studies. The jurist which "stay" just in one legal system faces all the time same systematic data and cannot perceive/distinguish them from the context they are part of 1 . Therefore, one of the main debate on comparative law doctrine concerns the opportunity to build an inductive method in order to allow the jurists to go beyond the normative formant and to get in touch with the background of legal relationships.
Actually, as it has been observed, «an inference-oriented scholarship is still difficult to come by» 2specially in the field of constitutional law, where is used to call «comparative» single-country studies and it seems to prevail a «universalist approach» which brings jurists to overtook the historical basis of the transnational dialogue on constitutional models 3 .
Apart from classification (and in combination with it), comparative law have developed a new horizon of research, which scope is highlighting the episodes of circulation of legal models, their causes and cases of "cross-fertilization" with local law. That process claim for a new reflection on the case-study selection, that is, making it more functional to the aim of underpinning or deny a particular hypothesis or concept. This objective has been often persecuted through a simple quantitative pattern, which cannot always satisfy a scientific standard, nor guarantees the effectiveness of the concept created. In particular, the only way to accept a quantitative data research is overtake the peculiarity and causes of a national experience and looking just at the common features. Otherwise, how a proper "western model" offor exampleright to speech could be obtained from comparison if we (seriously) take into consideration all the "western" national provisions on defamation, hate-speeches, privacy protection, right to information?
Quite often, an "assonance" among normative provisions of the different national systems represents a "false-start" for comparative studies, especially in absence of an advanced case-law or when one or both the regulation have not been enforced yet. In that case, the research is at stake and the only way to come out is looking beyond legal formants.
Therefore, as it has been noticed, «a good theory requires to clarify concepts as well as offering causal explanation for observed phenomena» 4 . The same need emerges from another point of view: if we assume that a "pure" and "neutral" description of social phenomena (including legal) is not an achievable goal, it should be considered a good practice adding "explanations" to the simple "portrayals". Thus, the analysis of origins and causes could also reveal different matrix of similar legal institute. For example, the historical experience of dictatorship gives reason of the compulsory voting in Brazil, while the low-rate of social conflict and political stability explain why U.S. citizens have to request the Public Administration for being included in the electoral lists. Consequently, taking the rights in their contest allows jurist to learn more about their function, while, on the contrary, "universalist tones" are often challenged by the "law practice".
The most important challenge for a comparative law scholar is building "enduring" juridical models, shaping them «through multiple description» 5 of singular national institutes and normative framework. Specifically, we could say that a juridical model is «enduring» when it is able to include in a descriptive framework the essential characteristics and functions of a specific institute, as they emerge from each national experience and notwithstanding the endemic dialectic of each legal systems.
The "gap" created by the enforcement of provisions is a traditional matter of the most dedicated comparative doctrine, for which "law" is «both the propositional statement as such and its invested meaningwhich jointly constitute the rule» 6 . However, can we perceive the «invested meaning» as the simple interpretation given by the judge/P.A. or there is something more beyond "wording" and "will"? At the aim to avoid a strict alternative, this contribution highlights how a better understanding of the contemporary circulation of some legal model is possible if we pay attention to the recent evolution of productive process and social assets.
In compliance with an «inference oriented approach» this paper offers some practical cases/tendencies to check if is possible to define new legal transplants fostered by globalization process and, eventually, which of them are the most frequent. Furthermore, we will notice that the object of transplant in most of the cases are "ideas", and not proper "models", as the still ongoing "dialogue" between national and international institution expresses an intellectual convergence whose empirical outcome are still uncertain.

BEYOND THE "LAW IN THE BOOKS" AND THE "LAW IN ACTION".
From a juridical perspective, the ordinary consequences of social dialectic is the modification of legal relationships, as the balances go in favor of one or more classes rather than others. Sometimes this brings to change the normative textsand so it affects the legislative languagewhile more frequently the innovation is reached trough interpretation process and law enforcement in generala path that has been defined «judicialization of democracy» 7 .
In this perspective, comparative studies in the field of constitutional law have progressively adopted an interdisciplinary approach, as the juridical categories have never been the products of the sole normative language (the "law in the books") or the will of the enforcement bodies (the "law in action"). The basis of constitutional law are deeply rooted in the society "as a whole", such as the last one find in the law is main cause of transformation/perpetuation (continuity/discontinuity).
However, even if the first relationship is the most studied by jurists, the second is perceived as an "extra", a further study outside the jurists' task (and scientific field). The first consists in discover the historical, economic and political causes of a constitutional institute, so it assume a shift from society to legal discourse. The second outlines how the law change society, thus, the normative language is observed in the perspective of its practical impacts, unusual for legal studies.
Since long time legal positivism considers the last approach as "useless" at the aim of legal theory, while its outcome should have some function in justice theory's building.
Although there have been a never-stopped dialogue between scholars, the ordinariness is a strict separation of legal discourse and sociological, economic discourses. The chronological coincidence between legal positivism and the emergence of the State, first, and democratic pluralism, than, can explain the need for an autonomous foundation of the legal concepts and why this autonomy sometimes turns in a "presumption of neutrality".
By fostering the objective nature of legal solutionas it derived from democratic institutionspolitical powers and the courts use to legitimize the conservation of one or a set of norms or a legal system. During the XX century only few times the jurists have seriously considered to push the research beyond the procedurethe formal aspect of democracytrying to reveal the social factors hidden behind the normative fact 8 .
In the 90s more than 110 countries have reformed or entirely rewritten its constitution. It cannot be a coincidence thatdespite the multiplicity of causes that have given rise to the constituent processesthere is a similarity of the constitutional models adopted. The ethical and ideological legacy of the twentieth century is thus carved in the preambles, in the preliminary articles and, in general, in all those formulations from which one can infer the State political principles.
The 90s mark also the end of the ideological conflict that had divided the world, as the lives of many people, but during whichanywaywere achieved the highest level of participation of the masses in the political life of the national and international community.
The mechanisms shaped by the state social democracy guaranteed the development of the constitutional models that drove the State economic government notwithstanding the dialectic between different social interests.
A part of those modelsin particular the economic freedoms and personal libertiesinspired the "transformation"what has been called a «constitutionalization»of international law and defines the objectives of the main supranational organizations controlled by the geopolitical bloc of liberal nations. On the contrary, the social rights remain anchored to the local sphere, compelled by the crisis of state sovereignty and unlikely to be compatible with the development model defined by the powerful dynamics of global finance.

CONSTITUTIONAL STUDIES
However, if the market globalization has reflexively forged a juridical one, it cannot be affirmed a direct-casual nexus between law and economics. The point is not if law shapes economic dynamics or, on the contrary, the economic problems are currently monopolizing the legal concepts.
The aim is to consider the lawat the same timea «product» and an «instrument for social-life production», which operate according to its own logic and procedures and by mean of its institutions 9 . In this perspective, the "judicial renovation" of constitutionalism, even if it can be perceived as a refuse of legal positivism, preserves its strict legalist characters.
The research of a new legitimacy for the exercise of public power beyond State sovereignty produced a break of the democratic foundation of constitutionalism, which, until now, have not been fixed with other than judicial techniques (growing use of proportionality test, driven comparative interpretation, ect.). Consequently, so far as the normative discourse remains closed on itself, the legal concept are used as the "glasses" through which looking at reality.
This attitude supposes an acceptance of reality "as it is": it brings to the transformation of the "social assets and facts" into "binding social assets and facts", as the mandatory nature of law disappears because its existence is "natural" 10 .
As an example, consider the «constitutional traditions common to the Member States» of European Union (art. 6 of the EU Treaty), as they were detected by the "comparative reasoning" of the Luxemburg Court of Justice. Are they now an "effective" characteristic of EU law while the integration process has spread to 28 countries? Are we sure that they ever were during the first steps? Or should we rather say that a common constitutional heritage in Europe is being builtjust as in the pastthrough the interpretations and "functional comparisons" of the Court of Justice and the political conditionality imposed by the so called "Copenhagen criteria"? 11 .
The crisis of global finance has played an important role in determining the current complexity of transnational relationship between the public authorities and people, on the one hand, and between the same private entities, on the other. If the first steps of the "legal globalization" were characterized by a considerable attention to the "local" legal tradition, now we are assisting to a process of centralization of economic policies by the supranational institutions and the Western States.
Thus, "judicial dialogue", "multilevel protection of fundamental rights" and "legal pluralism" have apparently lost their leading position among the causes of migration of constitutional ideas.

UNDERSTANDING THE NEW ROLE OF JUDICIARY
The contribution offered by the social inquiry can enlighten, not only the impact of law on society, but also its "reflexive effects", i.e. the role played by the social structure in shaping legal categories.
In this perspective, the recent development of comparative studies experienced a deep attention to the "metalegal formants" of constitutional law. The promotion of some specific juridical institutions instead of others always testifies a political choice, even when the last-one is not expressed. In order to clarify how this works in the contemporary constitutionalism, it is useful to recall some important consideration of few years ago on the new role of Judiciary in globalization times.
The Judiciary in the contemporary law has gained a central positionor better, a «functional advantage» 15because its typical characteristic fit the new reality of globalization on tree points. First, as a «polycentric institution», the Judiciary share with globalization the devolution of decisions-making activities: so, it guarantee a "diversification" of legal answers on the basis of the contexts. Second, the practice of jurisdiction has its main characteristic in the ability to connect private interests -that are the "impulse" of case-lawand public policiesproduced through the decision-making process.
Third, the jurisprudence is an increasing law-making process: courts are currently adopting a "problem-solving approach" which seems to refuse legal certainty and reinterpreting the political project of the constitution to make it fitting better present issues.
While legal doctrine is progressively leaving a "positivist idea" of law, the high courts' judges act like "glocal bodies" and take inspiration by new ideas of constitutionalism, which has chosen rightsrather than democracyas the source of legitimacy of public powers.
This trend fosters the «inner-systematic» function of rights: «the fact that the pluralistic design of contemporary constitutions gives emphasis to powerful judicial actors, usually producing and applying normative principles (rights) at a high level of international uniformity, replicates the original adaptive functions of constitutionalism» 16 .
The shift of Judiciary from constituted to constituent power 17 is the most visible effect of globalization on the legal-formants and has opened a new challenge to the future of the democratic component of constitutionalism.

IDEAS. WESTERN HEGEMONY OR LEGAL PLURALISM?
By the end of last century, comparative studies highlighted a significant increase in the reception cases of Western legal models by the remaining areas of the world. As long as globalization produced growing state's economies, the traditional institutes of liberalismfirst and foremost: property, contact autonomy, due process of law, anti-corruption policieswere perceived as necessary conditions for a social equity and sustainable development 18 .
Since the beginning of financial crisis the rational authority of this postulate is at stake, but not its effectiveness, as the developing countries' economic reliance on the lending policies of international organization is not decreased. Reflecting on this process, legal science has introduced the notion of «political conditionality» to indicate the set of principles and normsderived from customary international law (jus cogens) and the main international bodies' soft lawwhich shape the legal category of «human rights», «democracy» and «good governance» 24 .

Consequently
It can be traced back to these assumptions the distinction between «developed» and «developing nations» based on the presence or not of a fully evolved legal infrastructure able to efficiently regulate private trade 25 . This division plays a particularly important role in terms of migration of legal models. Attempts to transplant have a greater "legitimacy" when affecting the countries with a low level of development, but are generally not considered appropriate when the country "receiver" has an evolved legal system.
It is appropriate to notice that -despite their "economic vocation" -World Bank and International Monetary Fund are currently leading projects with direct effects on constitutional assets of developing countries. Thus, for example, the "strengthening" of private autonomyeven through the regulation of contractual legal relationships involving rights constitutionally established or, more generally, matters of public lawis presented as one of the most effective solution to the problems of government's corruption in developing countries 26 .
The «New Directions on Justice Reform» is the World Bank document that summarizes best the "modus operandi" of international organizations. In this publication, the Legal Vice Presidency explains in detail why the judicial system of a State carries out functions critical to economic growth, highlighting three different profiles. Finally, the judicial system is recognized as an essential function of "driving" the economy, to the extent that it ensures the growth of the private sector in accordance with the framework traced by the political bodies of the country and the international bodies of the various business sectors.
Therefore the Legal Vice Presidency believes that the predictability of the legal effects of contracts, the presence of legal protection of property rights and a system for resolving legal disputes are «key determinants of economic development» 27 . In the last perspective, the «New Directions» claim a «problem-solving approach» in international cooperation 28 . Taking inspiration of previous experience, where attempts to transplant Western legal models have remained unfinished for the resistance of the institutional culture of the receiving countries, the Legal Vice Presidency believes that the problem is not "how" reform the judiciary, but when "when" and "why" the justice system, with its inefficiencies, undermines economic development 29 .
In that sense, a "virtuous transplant" is detected in the establishment of the However, it is rather uncertain thatover a period of time so limitedthe arbitration procedure is able to issue a decision that reflects a fair balancing of the interests of the parties, nor in compliance with the legislative framework. It is not disputed that the brevity of this term contrasts strongly with the formulations that give full investigative powers to the arbitrators about the workplace conditions or that require them to examine all the documents brought by the counterparties in support of their demands 31 .
Furthermore, it is necessary to note the contradictory nature of the rules of the arbitration procedure that, on the one hand, require the panel to decide the case in accordance with the provisions of the law 32 , on the other hand, ask the arbitrators for deciding only on the matter indicated by the non-conciliation report 33 .
This ideal of labor justice has never been questioned by the promoters of the two international projects that have given financial support to the activity of AC: A new direction on constitutional studies can be traced if we start to analyze the "legal dynamics of globalization"such as powerful courts and spread of arbitrationas an expression of new social assets that are growing in a transnational perspective. For example, we have seen that «labor disputes» are internationally conceived as obstacles to the economic growth and how that brings national government and business companies to cooperate in order to seek their "rapid" and "cheap" resolution through arbitration. This cannot happen without a deep reflection on case-study selection, methodological studies of metalegal formants and analysis of social impact of law. The idea of market society fits into this horizon of study as element of integration of the legal system, which provides identity and stability, but at the same time, determines its receptivity to new forms of institutional rationality from outside.