On the search for a normative justification for judicial borrowings: between particularism and universalism

This article objects to both the strong universalist thesis, according to which judicial borrowings are inevitable, and the extreme particularist thesis, according to which they are not possible. To each thesis corresponds a judicial attitude of enthusiasm or resistance, respectively. Against these theses, I shall claim that: (1) empirically, borrowings are always fraught with a loss of exactness, which does not make them impossible, since a minimum standard of equivalence is guaranteed; and (2) normatively, borrowings may be necessary due to reasons that are either conceptual, normative (in the narrow sense) or teleological. Yet, those reasons have to be found in both the system of destination and the element that is borrowed. Therefore, contrary to extreme particularism, judicial borrowings are empirically possible, but contrary to strong universalism, they are not conceptually necessary everywhere.