Comparative law as governance

The broad mainstream of comparative law today is careful to distance itself from the work of governance and the choices of political life. Discomfort with politics is common to comparatists who seek knowledge about foreign legal systems more or less for its own sake and those who see themselves as technicians in a project whose political direction has been determined elsewhere. This has not always been true of comparative law and it distinguishes the field from other legal disciplines today. This essay explores the argumentative machinery that generates comparative law's apolitical sensibility and asks whether this practice itself has a politics. I develop some hypotheses about its historical origins and disciplinary specificity and end with some thoughts about its contribution to global governance.

A professional discipline might be thought ‘to be political’ or ‘participate in governance’ in a variety of ways. Sometimes, disciplines participate actively in ideological debates within the broader society, taking positions we can associate easily with the left, centre or right. Sometimes, they harness their expertise to the interests of one or another social group, so that we identify their work with the interests of workers or industrialists, men or women. Disciplines may take positions on the broad choices governments make, promoting, say, centralization over decentralization or assimilation over cultural diversity. Professions may urge their members to participate in public life, exercising the levers of governmental authority by applying the profession's special knowledge or viewpoint.

Unlike other contributors to this book, I discuss an approach to law which is at least two centuries out of fashion. We associate it with the natural-law schools that flourished before the rise of positivism in the nineteenth century. The jurists of these schools looked for principles which are universal, which underlie all legal systems. Here, I do not consider whether or not there are such principles. I ask what the approach of the natural lawyers can tell us about how laws may differ even when they are based on the same principles. As comparatists, we ought to be interested in how such differences are possible and what they are like. We can see such differences in modern legal systems. If we are sensitive to them, we can avoid the methodological error of assuming that principles must be different whenever we see a difference in laws. First, however, we must distinguish sharply between the approach of some seventeenth- and eighteenth-century natural lawyers who were influenced by philosophical rationalism and that of the earlier natural lawyers whose approach was based on ideas that stemmed ultimately from Aristotle and Thomas Aquinas.

The later rationalist approach was to try to deduce consequences as a mathematician would from supposedly self-evident principles. The difficulties are clear in retrospect. It is far from self-evident what the self-evident principles are. Moreover, many principles do not lead to a single set of consequences.

One is at the mercy of others. One's view of oneself, for example, is shaped by the others' gaze. And, beyond specularity, one fears being encumbered by something alien to oneself. In order to accommodate the vagaries of dependency and to contain the threat that others may represent, it becomes necessary to ascertain whether others are friends or foes, which is tantamount to asking whether they are like or unlike one. Difference, then, can be invoked to the disadvantage of those to whom it is applied as when it serves to place an individual's or a community's distinctiveness in jeopardy through oppression, disavowal, exclusion or obliteration. Overt sexual or ethnic discrimination provide evident applications of this discursive strategy. But the logic of betrayal and rejection through differentiation can adopt more insidious forms. Consider the character of the mother in Nathalie Sarraute's L'usage de la parole. In differentiating, through a brutal naming of roles, between the various members of the family who had been huddling together on the sofa (‘She shook them, she forced them to awake, to detach themselves from one another.

Introduction

The shock experience

Comparative law is without a doubt the most promising part of modern jurisprudence. Josef Kohler (1849–1919) saw comparative law as jurisprudence's ‘bloom’ and ‘blossom’. This great lawyer-artist, an exuberant Catholic inspired by metaphor, made the statement at the 1900 Paris Congress. Kohler came from a French-law background and loved the cultural study of law, regarding it as a way to reconstruct legal scholarship.

Comparative law looks deceptively simple to some. But the reality of comparative analysis for those who actually do it is very different. Comparative law provides the ultimate shock experience for any nationally trained and conditioned lawyer. It throws him into confusion by taking away all language-based feelings of security about understanding the world. The result is a loss of control.

Comparing

My subject-matter is a classic example of this shock experience as the difficulty begins with the two words ‘comparatists’ and ‘languages’. Language has occupied the central place for comparatists. My title seems to assume that there is a kind of vital connection between the two terms. This might be so but what do these words mean? Starting with the first term, ‘comparatists’, there is a long string of questions to be asked about our status and activities as comparatists. Are we actually comparatists? Do we really compare? What can we compare?

The relationship between comparative law and sociology has been paradoxical for at least a century. Since the inauguration of modern comparative law as a distinctive field of scholarly practice, conventionally traced to the 1900 Paris Congress, the closeness and necessity of this relationship has been frequently asserted by comparatists. Comparative law and sociology of law have often been said by comparatists to be inseparable. Sometimes, as regards an important part of its activity or aspirations, comparative law has been claimed to be a type of sociology of law or even identical with sociology of law. Yet, the nature of this relationship has rarely been examined in detail. In general, the need to explore it rigorously has been avoided by both comparatists and legal sociologists.

In some ways, this avoidance is understandable. Few scholars claim detailed knowledge of the whole range of the literature of both comparative law and sociology. Few are likely to have sufficient interest in both fields to motivate such an inquiry. And the orientations of comparatists and legal sociologists are often significantly different. The theoretical and empirical concerns of legal sociology go beyond those that interest most comparatists. Comparatists do not necessarily share sociology's ambitions to explain theoretically social change or social stability or to characterize the nature of social life using abstract concepts such as ‘structure’ or ‘system’. They often prefer specific, seemingly far more practical, inquiries closely related to the detail of legal practice and legal doctrine in particular systems.

Comparatists love to wail about the state of their discipline. To read contemporary comparative legal literature is, therefore, to witness a pitiful series of testimonials about the alienation of the comparatist. The discipline of comparative law, it seems, is marginalized in any number of ways. Thus, ‘[w]e comparative lawyers often complain that our colleagues see our work as peripheral.’ Comparative law ‘has enjoyed so little prestige in the inner circles of the academy’. This ‘marginal status’ of the discipline results in, and is reflected by, the lack of ‘full-time comparative law scholar[s] on the faculty’ of a distressingly large number of prestigious US law schools. Even within the US law-school curriculum, the discipline is but ‘a subject on the margin’.

In order to remedy this apparent marginalization, comparatists have argued repeatedly for the adoption and deployment of some form of ‘theory’. According to Ugo Mattei and Mathias Reimann, comparative law exhibits ‘a lack of methodological reflection and theoretical foundation’. In the dialogue between Pierre Legrand and John Merryman, the former decries ‘the poverty of legal theory in the comparative field’, while the latter simply notes: ‘I do not know of anyone who has done substantial theoretical work addressed to what comparative law really is about.’ This theoretical imperative has been promoted in many forms. If comparatists could only develop and deploy the proper methodology – whether functionalist, economic, philosophical, cultural or otherwise – comparative law would, it seems, find its rightful place as a discipline.

The Chief Justice of the Wiscosnsin Supreme Court, in the United States, recounts how counsel for the plaintiff cited case-law from Florida and Canada in a case before the court. Counsel for the defendant sought to distinguish the Florida authority but the Canadian case, in the language of the Chief Justice, ‘was an entirely different matter altogether’. The defence brief ‘noted archly’ that ‘[p]etitioner is not aware if Canadian case law has precedential value in the United States’. In the result, the Canadian case was not relied upon by the court, and this example of judicial reticence before extra-national law was repeated in a case of the United States Supreme Court, in which a justice of the court declared that ‘comparative analysis is inappropriate to the task of interpreting a constitution’.

Comparative legal studies, at least in the contemporary judicial world, would therefore be incompatible with the nationalist legal heritage, and the autonomous legal systems of the world would be engaged in autonomous, though surely evolutionary, legal development. Yet, this synchronic and particularist view of the relations between national and extra-national law may not capture past or future relations between local and distant law, nor for that matter the experience of other jurisdictions in the world. There would, therefore, be need for both retrospective and prospective consideration of the subject. Expansion of the national experiences may also be instructive.

Varieties of functionalism

‘Functionalism’ is a broad term. In the field of comparative law, it denotes at least two distinct, yet related, currents of thought. The first is linked to methodological concerns. In this context, an analysis of the functionalist heritage involves an assessment of the strengths and weaknesses of the ‘functionalist method’, which is one of the best-known working tools in comparative legal studies. The second understanding of ‘functionalism’ evokes the idea that law responds to society's needs – a view which some comparatists find more attractive than others in order to explain differences and similarities between the world's legal systems. Today, both varieties of functionalism are being challenged from different angles.

The functional method in comparative law: a standard account

Before considering the basic tenets of the functional method in comparative law, it is worth recalling that it never represented the sole or even the dominant approach to comparative legal studies during the twentieth century. Nor is it the prevailing method today despite the fact that some initiatives, such as the research being conducted by a large number of scholars under the flag of the ‘Common Core of European Private Law’, have breathed new life into it. There have always been other routes to comparison. Among the best-known ones, especially in Europe and in the United States, there is the tradition which analyses existing institutions and rules in their historical context.

Introduction

What can contemporary comparative legal studies say in a world radically different from the one covered by such studies up until now? Can the comparatists of today enter this new and different world with their existing strategies and accommodate differences by building on, or modifying, these strategies and so extend the scope of comparative analysis beyond the jurisdictions ordinarily dealt with? In my view, the future entails change, both in the perception and practice of comparative legal studies and in its interaction with other disciplines investigating the phenomena of legal and social cultures.

Traditionally, most comparatists have come from the western legal traditions. They have been mainly interested in the comparison of common law and civil law and in the expansion of these two legal traditions, considering the ‘totally other’ only in this context. The emphasis has either been on similarities between similars, or even between differents, and differences between differents – but rarely between similars. Each of these strategies has its own agenda. Sometimes, the purpose is to indicate that the world is divided between two traditions, sometimes to show that there is a global rapprochement or, at least, a rapprochement between common law and civil law and, more recently, between socialist law and civil law. Sometimes, the goal is to point out that ‘never the twain shall meet’ and, sometimes, to show that ‘we are all changing and changing in the same direction, so what do the differences matter anyway?’

Introduction

Law is on the move. Social engineering through law, for all that it is somewhat out of fashion ‘at home’ in many industrially developed societies, is increasingly practised abroad. The range of societies currently caught up in what many still describe as ‘legal transplants’, but which I shall be calling ‘legal transfers’, is not confined to those in the developing world, though even this covers places as different as China, south-east Asia or Latin America. It also includes almost all of the ex-communist countries and, in many respects, even the countries seeking to harmonize their laws within the European Union. Indeed, the developments associated with the globalization of markets and communication mean that few, if any, places are now immune. If the ‘law-and-development’ movement is thus in its second (some say third) wave, the question has been raised of how to avoid repeating the ‘mistakes’ made the first time round. A selective overview of some of the debates concerning the possibility and appropriateness of legal transfers may perhaps make a contribution to this task.

Three sets of interrelated issues will need be considered. How far is it possible to understand other peoples' law? What can be done to ensure that only that law is transferred which ‘fits’ into its new setting? Finally, in what ways are current wider political, economic and social developments affecting processes of legal transfer?

‘[L]’on peut comparer sans craindre d'être injuste.' Safe in that knowledge, the contributors to this book met in a closed seminar in Downing College, Cambridge between 26 and 30 July 2000 to debate comparative legal studies, almost exactly a century to the day after the Société française de législation comparée had held its landmark Congress in Paris. The Cambridge Conference was, of course, intended to mark the centenary of the Paris Congress. To this end, fifteen scholars from around the globe, representing widely diverse strands of comparative scholarship, were invited to speak to comparative legal studies at the millennium within their specialist fields and then, drawing freely upon their research, to reflect upon fruitful lines of inquiry for the future. The present volume comprises papers presented and discussed on that occasion in Cambridge. The Cambridge Conference may not have reaped the incidental benefit of a universal exhibition which, in 1900, coincided with the Paris Congress. But like its Paris predecessor, finding itself poised on the threshold of a new century inevitably lent a symbolic edge to the enterprise. In broad imitation of its Parisian forebear, the Cambridge Conference was intended to provide a tour d'horizon of the current state of the comparative endeavour in the specific context of legal studies.

The impact exerted by the Paris Congress on the subsequent development of the subject is underscored by Konrad Zweigert and Hein Kötz on the opening page of their well-known textbook:

Although a great deal has changed in the years since the 1900 Paris Congress, a significant number of issues have remained constant for students of comparative law. When our predecessors convened at the turn of the last century, they were very much in the throes of a kind of scientism that coloured what they foresaw for their subject of study and, indeed, for the future of law itself. Their evolutionary orientation, their assumption that legal systems would become more universally alike, their continuing belief in the science of law as both a method for unbiased analysis and the discovery of the classifiable nature of all legal systems may seem both naive and self-deceptive from our current stance. But it says much about the difficulties that will have to be faced by future contributors that a good deal of comparative law still remains bound to the programmes and assumptions of that earlier era. By beginning with some of the laments – and some of the grounds for lamentation – my intention is not to be gratuitously insulting. Rather, I think it important to underscore that, as heirs to certain issues and approaches, comparatists have not entirely shaken free from some of their less defensible earlier positions.

There are, for example, the continuing complaints about the state of the art – ‘scholars crocheting with rules’ – and the articulation of remarkably imprecise and old-fashioned legal taxonomies, ranging from indefensible categories like ‘traditional’ law, unexamined ones like ‘religious’ law and simply resigned ones like my own favourite, ‘other’ conceptions of law.

Introduction

One may wonder how this study and its results might be of possible use to the would-be codifiers of a European Code of the Law of Torts.

The comparative method on which we relied has probably unearthed many common features that were hitherto obscure in traditional legal analysis. It may also be true that our research lends itself as a valuable instrument for future legal harmonization, in the sense that it has hopefully provided reliable data for use in devising transnational solutions that may prove workable in practice.

Nevertheless, any codification attempt should be seasoned with – and this applies not simply to tort law but to all subjects – a certain amount of constructive scepticism. Leaving aside any positive or negative bias vis-à-vis the very idea of the code, as well as the many reasons put forward to deny, support or simply postpone its feasibility, the point is that the inquiry into ‘pure economic loss’ confirms how deeply conscious the code-drafters will need to be about the overall implications of remoulding the law of tort.

Pure economic loss astride private law frontiers

The kind of awareness that is required in legal debate can be simply illustrated by consideration of the following. Throughout our study we have seen the conceptual dependency which exists between underlying contract and property ideas and the law of tort.