‘Once an experience has become measurable and certain, it immediately loses its authority.’ (Agamben, Reference Agamben, Agamben and Heron2007, p. 20)
‘[C]omparative lawyers are generally lawyers of some kind.’ (Zweigert and Kötz, Reference Zweigert and Kötz1998, p. 11)
1 Introduction
After almost two decades, Pierre Legrand recently returned to the pages of the American Journal of Comparative Law (AJCL) with a paper that will doubtless attract much discussion in both the theory and practice of comparative law (Legrand, Reference Legrand2017). Legrand's essay is highly controversial in both its form and its content. It is 132 pages long; has no headings whatsoever; counts 400 footnotes; and is not just critical, but extremely polemical. It is, at times, repetitive yet, with it, Legrand pushes his unconventional writing style to the limits. In fact, the specificity of Legrand's writing skills and the peculiarity of the paper are the reasons why the AJCL's Editors decided to go ahead with its publication despite its lack of structure and book length. As Helge Dedek (Reference Dedek2017, p. ix) writes in his Preface to the Special Issue in question:
‘[a] Legrand text through and through, it was also obvious to us that a “blind” peer review would necessarily be unrealistic. Yet despite these difficulties, it seemed to us that we had been presented with a unique opportunity: what if we could let the clash of ideas play out in the open, rather than under the cover of anonymity in the regular peer review process, and create a platform where critic and criticized can meet, on equal footing, in open dialogue.’
It is easy to imagine that many, particularly young, scholars would not appreciate this preferential treatment extended to Legrand. Yet, the AJCL's Editors are certainly right when they say that Legrand's submission represented a valuable opportunity for comparative-law scholars to reflect on what, to echo the words of Hannah Arendt (Reference Arendt2008, p. 5), they have been doing and plan on doing. Indeed, in his piece, Legrand comes to terms with some long-debated (yet never solved) theoretical and practical issues that have always characterised the development of comparative law as both an academic discipline and juridical practice. Interestingly enough, Legrand decided to unfold what, in his view, are comparative law's problematics and strengths by comparing two methodologies of inquiry—that is, by turning the comparative approach to legal phenomena (and life more generally) against itself. These are James Gordley's ‘positivist’ and James Whitman's ‘cultural’ methodologies, as he himself calls them, while criticising the former and praising the latter (Legrand, Reference Legrand2017, p. 9). Noticeably, both Gordley and Whitman have expressed reservations about Legrand's strong opposition between the two methodologies.
Given the singularity and richness of Legrand's account, the AJCL's Editors decided to invite Gordley and Whitman to engage with it, as well as to extend the invite to a few ‘scholars known for their recent outstanding work’ (Werro, Reference Werro2017, p. viii). These are Russel A. Miller, Sherally Munshi and Peer Zumbansen. However, the Editors tell us that, while Legrand ‘[c]ourageously, … offered his manuscript to the critique of the chosen contributors, [he] decided not to read their texts. Obviously, he was therefore not in the position to respond to the criticism they expressed’ (ibid.). Thus, the reader is unfortunately left with no actual debate between Legrand and his commentators.
Legrand's piece deserves our attention not only because—as has been rightly pointed out—he ‘is one of the more controversial comparatists of our time’ (Örücü, Reference Örücü, Örücü and Nelken2007, p. 49; see also Husa, Reference Husa2015, p. 136; cf. Siems, Reference Siems2018, pp. 140–144). Rather, it does so to the extent that, by emphasising the importance of sociocultural and hermeneutical forms of juridical analysis and ‘convey[ing] some of the comparativist-at-law's inexorable meandering’ (Legrand, Reference Legrand2017, p. 129), it appears to be taking the first step towards a new, more sensitive phase for the comparative assessment of law(s) and legal culture(s). To discuss it in all its aspects would require a more extensive treatment than can be provided here. Thus, in the following pages, I would like to limit myself to what I believe are the main inconsistencies of Legrand's important contentions regarding the sociocultural dimension of law and regulatory phenomena on the one hand and their comparative study on the other.
In particular, I argue: (1) that, in advocating what I suggest to call ‘sensitive epistemology’, Legrand's claims have far-reaching implications that transcend the purview of scholarly discourses over comparative law's nature, scope and methods; (2) more specifically, that Legrand's account represents a valuable opportunity to reflect on what role experience and knowledge play in the study and practice of law generally, rather than just in comparative legal studies; (3) that, while Legrand is right in contending that the comparative analysis of law and legal cultures involves self-referred, other-regarding and meaning-revealing practices, his view that experience-driven and culture-sensitive comparative analysis leads to (a non-positivist form of) knowledge that blurs the philosophical distinction between experience and knowledge; (4) that, as such, the philosophical basis on which Legrand's views rest is inconsistent; (5) that, as a result, Legrand's ‘sensitive epistemology’ cannot act as a gateway to cultural otherness, as it is wholly in line with the constructivist objectification of life that characterises the study and practice of law, both within and outside the comparative-law dimension; finally, (6) that Legrand's attack on positive methods of comparison ignores, or appears to ignore, a peculiar form of legal positivism that accommodates his socially embedded cultural hermeneutics (or culturalism)—namely, Brian Tamanaha's socio-legal positivism.
Before going any further, it should be clarified that it is not my intention to choose between the ‘two Jameses’ or, to say differently, between the ‘positivist’ and ‘cultural’ (or Husserlian and Joycean, as Legrand also labels them: Reference Legrand2011, p. 72) approaches to comparative inquiry. I am not interested in discussing comparative law's ‘never-ending methodological self-doubts’ (Zumbansen, Reference Zumbansen, Adams and Bomhoff2012, p. 188; cf. Van Hoecke, Reference Van Hoecke2015) nor in surveying the academic debate on the comparative sociology of law and the concept of legal culture—there are plenty of excellent contributions to that effect already. My intent is instead much more modest, as I will limit myself to substantiating the above-listed claims, all of which, I contend, share a common core regarding the implications that the ‘experience–knowledge’ dichotomy has for an appreciation of law's juridical component (Siliquini-Cinelli, Reference Siliquini-Cinelli2018; Reference Siliquini-Cinelli2020Footnote 1). The fact that this antithesis has not received the attention it deserves in comparative-law literature is all the more surprising considering the discipline's ‘desire to be academically sophisticated’ (Reimann, Reference Reimann, Bussani and Mattei2012, p. 32).
In his acclaimed introductory text to the comparative-law world and its method(s), Geoffrey Samuel (Reference Samuel2014, p. 120) writes that:
‘Legrand is not arguing that one does not study the court structure or the institutional system as such; what is to be rejected is the idea that such structures can transcend a cultural mentality to become some kind of transcultural science.’
Using Samuel's reconstruction as a starting point while also drawing from Legrand's own body of work and AJCL paper, my aim is to show that what Legrand misses is that knowledge is by definition impersonal, and thus a-cultural. True, as Jennifer Nagel (Reference Nagel2014, p. 3) has said, ‘[k]knowledge demands some kind of access to a fact on the part of some living subject’. Asserting that knowledge cannot but be experience-based simply means, however, that it is factically grounded, or inseparable from the subject's a priori facticity. This should not distract us from appreciating that, philosophically, the cognising subject is just an (active: Polanyi, Reference Polanyi2015, p. xxvii) ontic container of a metaphysical end result of intellectual processes of ontological abstraction that objectify life. Consequently, knowledge's structuralising properties are incompatible with Legrand's call for a personal (self-defining) and culturally oriented (other-regarding) act of comparison. This explains why advocating, as Legrand does, ‘the redemption of epistemology within comparative law’ (2017, p. 20) while simultaneously stressing the experiential nature of the comparatist's efforts is, simply put, an ontological oxymoron. Therefore, despite his aim to overcome the scienticism that informs positivist approaches to (comparative) law and analysis ought to be welcome (ibid., p. 77), Legrand's ‘sensitive epistemology’ ultimately replicates within comparative-law discourse the metaphysical character of Western thinking's desire to combine the universal with the particular (recently, see e.g. Wolcher, Reference Wolcher2016, p. 3)—that is, the very source of modern (i.e. post-Renaissance: Cassirer, Reference Cassirer and Domandi2010) scientific attitudes towards life and positivist mechanisms of knowledge production he challenges. As will be shown, the likeness between Legrand's vision of how legal sensibilities should be approached and Tamanaha's culture-accommodating legal positivism is testament to this.
This paper is structured as follows. The second section outlines the basic thrust of Legrand's view. The third one sets out some critical (i.e. philosophical) reflections on it, and compares his and Tamanaha's accounts. Concluding remarks follow.
2 Legrand's vision for comparative law
Despite his unconventional mode of exposition, the main thrust of Legrand's argument is not difficult to grasp and can be summarised by reference to some key passages from his AJCL paper. First, Legrand (Reference Legrand2017, p. 21) tells us that
‘my [his] exposition defends the enduring need for comparative law to be reflexively and critically attentive to its epistemic commitments, to the question of knowledge in comparative discourse, to what must be valued as a matter of comparative knowledge, and to the discursive forms comparative knowledge can adopt.’Footnote 2
Then, right after the middle of his contribution, Legrand clarifies what ought to be rejected for comparative law to lead to what might be called a ‘sensitive epistemology’ capable of appreciating the contextuality of legal orders as culture-dependent constructs (ibid., pp. 69, 102).Footnote 3 ‘The transposition I critique,’ Legrand writes,
‘involves an “improper extension of [scientism] to domains of cultural activity to which it does not and cannot apply.” (If the science envy I discern does indeed inform the establishment of knowledge by comparative law's doxa, this means that the comparativist's longing for the identification of “what the law is” finds itself being trumped by another form of metaphysical pathos, such as the drive to science, which would deidentify the “is-ness” of the law, cast it as something that it is not, and thus redeem it-this theotropism however assuming a certain view of science now regarded in many circles as so archaic, “a spellbound backwash,” as to prove epistemically indefensible.)’ (ibid., p. 77, emphasis in original)
Having paved the way for the core of his claim, a little later, Legrand goes on and asserts:
‘I maintain that the alleged outside-culture is, in fact, located so that it reveals a very intimate relation with law and cannot therefore plausibly be regarded as being external to it. It is sutured to law. While culture can still be distinguished from law, not unlike the way in which the canvas can be differentiated from the painting, it is not outside of it any more than the canvas is outside the painting. Culture is not an exterior entity to law, no matter how indigestible this fact may appear to positivists. Observe that I am not suggesting that culture happens instead of law. It is not that law finds itself being displaced, lost, or dissolved. Within my proposed configuration, there remains ample room for statutes and textbooks, for judicial decisions and law-review articles, except that these texts are to be seen to exist as culture. Law-texts are culture speaking legally. It is not, then, that I am seeking to do to law what positivists have been doing to culture, that is, to efface it from the comparative scene. Indeed, it would be counter-productive to implement positivism's dogmatism in reverse. I am not seeking to flip the coin, but to change the coinage. My goal therefore is not to jettison statutes and judicial decisions within comparative research, but to approach them afresh, to come to them obliquely.’ (ibid., p. 100, emphasis in original)
The move towards comparative law's radically new ‘epistemic response and responsibility’ (ibid., p. 21; see also ibid., p. 13) would fail, however, if the ‘comparativist-at-law’, as Legrand repeatedly calls her, would not internalise the experiential nature of the task in question. Drawing from Martin Heidegger, Legrand thus claims ‘that ultimately, the only approach to the event of the foreign law-text is one based on experience and experimentation (interestingly, the French language has a single word, “expérience”, to embrace both terms), one thus featuring nomadic errancy’ (ibid., p. 12; see also ibid., pp. 115–116; Legrand, Reference Legrand, Birks and Pretto2002, pp. 32–33).
This is what legal positivism's sterile techniques of ‘epistemic governance’ (ibid., p. 96; see also Legrand, Reference Legrand2015) void—namely the structural relationship between ‘the phenomenological dimension of meaningful experience within comparative analysis’ (ibid., p. 17) and the cultural substratum of normative orders (Legrand, Reference Legrand1995, p. 266). Indeed, legal positivism's ethical and political (Legrand, Reference Legrand2017, pp. 8, 21) blindness towards culture (as epitomised by Gordley's ‘Cartesianism’Footnote 4 and ‘analytical compulsions’,Footnote 5 Zweigert and Kötz's functionalist ‘praesumptio similitudinis’Footnote 6 and ‘école de vérité’,Footnote 7 or Alan Watson's ‘most impoverished explanation of interactions across legal systems’Footnote 8) makes us forget that comparative law is but an Agambenian zone on indistinction, or interaction, between the comparatist's cultural self and the cultural otherness of the encountered object of study. This explains why ‘the discordance separating Whitman's and Gordley's avowed scholarly projects [is] irresoluble: a comparativist reading foreign law culturally cannot not affirm otherness, while a comparativist reading foreign law positivistically cannot not deny it’ (ibid., p. 21, emphasis in original). What Gordley's ‘dubious metaphysics’ (ibid., p. 69) conceals, then, is that comparative law's
‘aim must be to try to define the frame of perception and understanding of a legal community so as to explicate how a community thinks about the law and why it thinks about the law in the way it does. The comparatist must, therefore, focus on the cognitive structure of a given legal culture and, more specifically, on the epistemological foundations of that cognitive structure.’ (Legrand, Reference Legrand1996, p. 60)
Comparison, then, requires an open-minded attitude towards ‘the legal mentalité (the collective mental programme), or the interiorised legal culture, within a given legal system’ (ibid.; see also Legrand, Reference Legrand2017, p. 22, where Legrand speaks of ‘shared mental programmes’; and Legrand, Reference Legrand1995, pp. 272–273; Legrand, Reference Legrand, Birks and Pretto2002, p. 21). As Legrand (Reference Legrand, Nelken, Feest and Hunter2001, p. 68) himself pointed out while concluding his well-known paper on legal transplants, indeed,
‘[c]omparative legal studies can further one's understanding of other peoples by shedding light on how they understand their law. But, unless the comparatist can learn to think of law as a culturally-situated phenomenon and accept that the law lives in a profound way within a culture-specific—and therefore contingent—discourse, comparison rapidly becomes a pointless venture.’Footnote 9
Legrand's ‘politics of understanding’ (Reference Legrand, Legrand and Munday2003, p. 250) thus calls ‘for a protocol of action foregrounding an interpellative and interlocutionary ethics upon which all other structures organizing the relation between self and other – and between self-in-the-law and other-in-the-law – must rest’ (ibid.).Footnote 10 Yet, this Levinasian (ibid., p. 264) way of doing comparison cannot be reduced to a mere act of experiential dwelling, or a Heideggerian thinking that thinks—that is, a thinking that frees itself from its ‘technical interpretation’ (Heidegger, Reference Heidegger and Krell D2008a, p. 218). This clearly emerges when, without renouncing to fighting the ‘authoritative ideal of knowledge and truth’ (Legrand, Reference Legrand, Legrand and Munday2003, p. 248) put forward by those ‘monistic models’ (ibid., p. 257) that have been characterising the Western tradition since its inception and have then reached their apex within Orthodox schools of positivist comparison, Legrand assigns a primary role to schemes of intelligibility in the comparative enterprise. As he himself writes,
‘[b]ecause culture functions as an ongoing integrative process, what one encounters by way of alternative experience tends to be intelligibilized against the background of existing patterns within which it is ultimately absorbed even at the cost of a measure of dissonance reduction.’ (Legrand, Reference Legrand2017, p. 28)
The structural link between every act of comparison's experiential and meaning-revealing (Legrand, Reference Legrand2011, p. 88; i.e. self-dependant, other-encountering and, ultimately, self-definingFootnote 11) disposition, dependency over conceptual reorganisations and reorientations, and achievement of epistemological objectives could not be affirmed with more force. ‘While law cannot exist beyond interpretation (in order to make sense, law depends on an interpretive experience), interpretation cannot exist beyond world,’ Legrand (Reference Legrand2017, p. 72) observes. ‘Every comparativist's thematic projection,’ he continues,
‘involves a correlative projection of himself along the investigative path leading to his ends. Although an interpreter might wish to be somewhere other than where he is, every interpreter is emplaced, somewhere. And, inevitably, every interpreter's perspective is announced or framed by the linguistic and conceptual resources that the culture within which he has been socialized, and that he has incorporated, and whence he operates, has put at his disposal.’ (ibid., p. 80)
Only by uncovering and deactivating legal positivists’ ‘impermeability to the range of existential vagaries liable to afflict interpretation’ (ibid., p. 5) may a new phase of self-reflexive awareness for comparative law ultimately commence in which comparatists will be able to account adequately for the phenomenal character of comparison. Indeed, to Legrand, ‘positivists censor the world of culture [to the extent that] positivism is (and wants to be) radically bereft of all forms of cultural edification’ (ibid., p. 8). In particular, ‘because positivism is in search of knowledge that is technically utilizable, culture … simply does not register on the professional scale’ (ibid., p. 9). From this, it follows that:
‘Positivism posits the deposition and the disposition of culture. And closure is the condition of positivism. Without such fixation of boundaries, there could be no positivism. But what is necessary for the system to behold is also fictitious: the discarded alternative continues to work at the margins and re-emerges with the inevitability characteristic of the return of the repressed.’ (ibid.)
Due to their ‘stationary intellectual fashion’ (ibid., p. 90), legal positivists are unable to appreciate that ‘law is performance … not a “being” but a “doing”’ (Legrand, Reference Legrand, Legrand and Munday2003, p. 248). This simply means that legal positivism is incapable of appreciating that the (legal) culture that lies beneath (the) law, that informs its regulatory claims and operativity, ‘is ever-becoming—and the comparativist-at-law's formulations of it, although always already situated, are ever-mobile’ (Legrand, Reference Legrand2017, p. 28). This is why, Legrand maintains, Whitman's way of doing comparison ought to be preferred over that of Gordley: because ‘[i]t expresses a distrust in positing and in positivity and in positivists and in the positivist Zeitgeist, which it ex-poses as the most determining factor suppressing the phenomenological dimension of meaningful experience within comparative analysis’ (ibid., p. 17).
In order to allow his readers to comprehend why the symbiotic relationship between law's and the comparatist's existential mobility expresses, as the early Heidegger would call it, an imminent ontological condition of facticity, Legrand even substantiates his claims via reference to his ‘own life experience’ (Legrand, Reference Legrand, Legrand and Munday2003, p. 244). In fact, and as set out, the extent to which personal experiences shape the comparatist's work becomes one of the major points of Legrand's critique of Gordley's (positivist) comparisons: despite his intention to grasp and analyse the ‘law-as-it-is’ (Legrand, Reference Legrand2017, p. 71) or law's ‘is-ness’ (ibid.; see also ibid., pp. 76, 81–83, 98, 104–106), Gordley fails to understand that, ultimately, he ‘cannot escape a description of French law as it seems to him in terms of his capacities and practices’ (ibid., p. 79, emphasis in original).
Thus, ‘as he encounters foreign law, Gordley fabricates it’ (ibid., p. 83; see also Legrand, Reference Legrand2019, pp. 302ff.). Consequently, Legrand concludes that
‘What Gordley will eventually style (whether expressly or not) as “The French Law of Privacy,” for instance, would thus more appropriately deserve to be entitled “My Very Best Interpretation of the French Law of Privacy as I Sit in My New Orleans Study at This Stage in My Career and in My Life, in the Light of My Overall Cultural and Legal Education Including My Socialization into Comparative Law and My Linguistic Competence in French, on the Basis of My General Experience as a Comparativist-at-Law and of My Familiarity With French Law and French Legal Culture in Particular, Given What I Wanted to Establish, by Reference to the Materials I Came Across in Paris in the Time I Could Spend There, Regarding the Texts I Decided to Use, in Connection With the Arguments I Chose to Mobilize, With Respect to the Evidence I Elected to Retain, Apropos of the Quotations I Opted to Feature, and Concerning the Words I Preferred to Deploy in Order to Account for What Inevitably Remains Less Than the Whole”.’ (ibid., p. 87)
3 The philosophical problem of Legrand's ‘sensitive epistemology’
3.1 Experience is not knowledge
At this stage, it might be objected, with good reason, that what Legrand claims (and, of course, the way he claims it) has no implications whatsoever for our understanding of juristic practice and its teaching. At the end of the day, as Harold Gutteridge (Reference Gutteridge1953, p. 23) noted, ‘[a] busy practising lawyer cannot, as a rule, be expected to pay much heed to other systems of law’.Footnote 12 Legrand (Reference Legrand and Clark2007, p. 222) argues similarly: ‘[t]he vocation of comparative work about law is intrinsically scholastic and its agenda is, therefore, incongruent with that of practitioners or lawmakers seeking to elicit epigrammic answers from foreign law.’
Yet the opposite should be obvious. Not only, indeed, comparative lawyers are ultimately lawyers, as Zweigert and Kötz correctly reminded us. Not only, as comparatists know full well, how we theorise and operationalise the comparative study of normative orders and cultures has meaningful repercussions on legal education's development (Yntema, Reference Yntema1958, p. 499; Reimann, Reference Reimann2002; Samuel, Reference Samuel, Birks and Pretto2002, p. 35; Örücü, Reference Örücü2004; Reference Örücü, Örücü and Nelken2007, p. 54; Husa, Reference Husa2015, p. 71) and beyond.Footnote 13 Above all, the necessity to reflect on what comparative law can offer to the academic debate on juristic practice and its teaching has to do with the fact that Legrand emphasises the sociocultural dimension of law as a regulatory phenomenon, while also rejecting the anti-theoretical approaches to comparison à la Ronald Dworkin that see legal reasoning as an art rather than a science (Samuel, Reference Samuel2014, pp. 19–20).
This is important. The 1900 Paris Congress is usually considered to be the ‘mythical’ (Frankenberg, Reference Frankenberg2016) foundational moment of modern comparative law as a (scientificFootnote 14) field of study revolving around ‘the juxtaposing, contrasting and comparing of legal systems or parts thereof with the aim of finding similarities and differences’ (Örücü, Reference Örücü, Örücü and Nelken2007, p. 44). It was there that legal comparatists set forth a call for scientism—that is, a ‘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’ (Rosen, Reference Rosen, Legrand and Munday2003, p. 493). Some towering figures in the comparative-law dimension, such as Hessel E. Yntema (Reference Yntema1958, p. 467), Zweigert and Kötz (Reference Zweigert and Kötz1998, p. 15) and Rodolfo Sacco (Reference Sacco1991, p. 8), have explicitly advocated a scientific approach to the discipline (i.e. comparative law as comparative legal science). Other leading commentators, such as Jaakko Husa (Reference Husa and Hoecke2003, p. 69), have come to use the terms ‘comparative law’ and ‘comparative legal science’ as synonymous. Other prominent thinkers, such as Jerome Hall (Reference Hall1963), Esin Örücü (Reference Örücü, Örücü and Nelken2007), Annelise Riles (Reference Riles, Reimann and Zimmermann2006, p. 775), Catherine Valcke (Reference Valcke and Legrand2009, p. 99), William Twining (Reference Twining2005; Reference Twining2009, pp. 244–265), Frederick Schauer (Reference Schauer, Adams and Bomhoff2012, p. 212), Anne Meuwese and Mila Versteeg (Reference Meuwese, Versteeg, Adams and Bomhoff2012, p. 230), Julie De Cornick (Reference De, Adams and Bomhoff2012, p. 258), Mathias Reimann (Reference Reimann, Bussani and Mattei2012, pp. 25–27) and Samuel (Reference Samuel2014, p. 23)Footnote 15 have stressed that comparative analysis ought to rely on data and thus make use of the social sciences’ empirical methods of discovery and knowledge production (Nelken, Reference Nelken2016, p. 390). Still others who conceive of law as a science and of comparative law ‘as the academic study of legal systems’ (Cashin Ritaine, Reference Cashin, Ritaine E, Franck and Lalani2008, p. 11) tell us that the comparison of laws is but an engineering activity. Under this light, the comparatist/engineer ‘must have a pragmatic creative approach to a factual situation whilst applying basic scientific rules’ (ibid., p. 19).
Claiming that cross-cultural translation is inherently problematic,Footnote 16 Legrand has always dismissed any methodological moves in favour of a hermeneutical, culturally oriented act of comparison capable of embracing non-scientific modes of discovery (Legrand, Reference Legrand2017, pp. 12, 22)Footnote 17 that appreciate the deep contextuality (or Heideggerian being-in-there; but see Legrand, Reference Legrand2006, pp. 439–444) of legal orders and regulatory mechanisms. Further, and as will be seen in the next section, Legrand firmly believes that the comparative enterprise is, and cannot but be, ultimately unsuccessfulFootnote 18 (something that would not be possible if comparative law were a science). This is why Legrand repeatedly criticises the idea of an ethically sterile and politically functionalist (comparative) legal science and favours an understanding of comparative law as a philosophical journey rather than a method-dependent inquiry (Legrand, Reference Legrand2009b, pp. 59–63; see also Legrand, Reference Legrand1988; Reference Legrand1995, p. 264).Footnote 19 Not coincidentally, Legrand also points at the inconsistencies of pretentious claims regarding science's objectivity and detachment from contextual (i.e. historical, political, social, etc.) conditions of development (Legrand, Reference Legrand2017, pp. 77–78; 2011, pp. 104–105). On the other hand, though, and as mentioned, Legrand rejects anti-theoretical approaches to comparison as a way to show us comparative law's experience-driven and culture-attentive epistemological path. As he writes:
‘a focus on legal culture changes the parameters governing comparative research [because] the argument in favor of a culturalist approach is not merely theoretical, but carries the most practical ramifications in as much as it leads to the construction of a different knowledge about foreign law and, ultimately, conduces to the formulation of a different foreign law.’ (Legrand, Reference Legrand2017, p. 25)
Here is where, I submit, Legrand's attempt to replace (legal) positivism's abstract, universal and equalising knowledge (adequatio rei et intellectus) with a culture-based local knowledgeFootnote 20 obfuscates the philosophical distinction between experience and knowledge, and the relevance it has for an appreciation of law's juridical component. The emphasis I place on the philosophical nature of the inconsistencies that underlie Legrand's account is, of course, not accidental, as it has to do with the heavy use that Legrand makes of philosophical—particularly continental—thinking to substantiate his claims. Unfortunately, the philosophical discrepancy of Legrand's thought on this point undermines the accuracy of his otherwise important analysis on the past, present and future of comparative law. This clearly emerges when Legrand stresses the unavoidable limits of any act of comparison as deriving from its experiential natureFootnote 21 while at the same time pointing at the discipline's epistemic commitments. This reconstruction not only turns ontological issues into epistemological ones, but ultimately forgets that knowledge's authority derives from it being neither incomplete nor imperfect (reality as certitudo).Footnote 22
As I have shown elsewhere (Siliquini-Cinelli, Reference Siliquini-Cinelli2018; Reference Siliquini-Cinelli2020), knowledge is a metaphysical end result of intellectual processes of ontological abstraction that transcend life's finitude by objectifying beings as phenomena (and thus human existence and relations). To put it differently, knowledge phenomenologically equalises the targets of its reach for regulative and structuralising purposes, thus emptying their constituting properties as well as the unpredictability of their interaction. This also explains why, despite being ‘organized and articulated’ (Cassirer, Reference Cassirer1944, p. 208), experience is unique and imperfect,Footnote 23 while knowledge looks for certainty and truth through a logic that prompts objectification, and thus nullification.
In this sense, I submit that the distinction between knowledge as such (or regular, ordinary knowledge) and scientific knowledge should not be over-emphasisedFootnote 24 as both are animated by the operativity of a procedural truth founded on reason's methodological effectuality—that is, in both instances, the cognitive process is propelled by a calculating reason whose effectuality is expressed through a metaphysical act of measurement. What distinguishes the scientific (i.e. more reliable; see e.g. Wootton, Reference Wootton2016, pp. 1, 51, 393) production of knowledge from other epistemological enterprises lies in the systematisation of the various end results (theoretical knowledge) as well as in the further sophistication of the methodologies deployed by the analyst, among which stand the ‘systematic observation and experimentation, inductive and deductive reasoning, and the formation and testing of hypotheses and theories’ (Andersen and Hepburn, Reference Andersen and Hepburn2015, unpaged) (experimental knowledge). Thus, David Wootton (Reference Wootton2016, pp. 527, 539) correctly observes that ‘scientific enquiry is path-dependent’. This is probably why Hans-George Gadamer famously held that science voids the ‘inner historicity of experience’ (Reference Gadamer, Weinsheimer and Marshall2013, p. 355).Footnote 25
By ‘act of measurement’, I refer to the seed of the Western metaphysical tradition: the Promethean myth. As magisterially shown by Emanuele Severino (Reference Severino1989, pp. 27–31, 179–207), indeed, Prometheus is the god that knows everything in advance (pro-mathḗs) and whose thinking moves on a rectilinear plane on which all that exists is effectually commeasured (pánt’ epistathmṓmenos). This also confirms the regulatory—and thus never merely descriptive—character of knowledge over life. Epistathmṓmenos (meaning ‘to measure’ and which is the ‘verbal mode through which epistēmē presents itself’; ibid., p. 28, my translation) derives from the substantive státhmē, which was the rope used to measure and work stone and wood in Ancient Greece and that means ‘norm’ or ‘rule’ (ibid., my translation).
After it had been established by Aeschylus, whom Severino calls the founder of reason, knowledge's constructivist approach to life was further developed by Plato's geometrical-mathematical vision of nature (see e.g. Meno, 81b–d; cf. Jaeger, Reference Jaeger and Highet1986a, pp. 96, 169; Reference Jaeger and Highet1986b, pp. 228, 241; Popper, Reference Popper2011, pp. 190, 561–569) and Aristotle's scientification and technologisation of experience (see e.g. Metaphysics, 980a–982b, 1027a20, 1029b1–12; Post. Anal., II 99b15–100b; see also Colli, Reference Colli1969, pp. 213–217; Bronstein, Reference Bronstein2016, pp. 20, 61, 127, chapter 13; cf. Duke, Reference Duke2019, pp. 22–23, 67–68, 111).
The movement from the understanding of teaching and learning as experiential apprehending to (scientific) knowing that originated within the metaphysical and logical thinking promoted ‘in the ambit of the administration of the Platonic-Aristotelian schools’ (Heidegger, Reference Heidegger, Fried and Polt2014, p. 153) had important repercussions on the development of the Western tradition, including that of its jurisprudential branch. As is well known, indeed, Aristotle believed that only scientific knowledge is capable of being passed on to others, whereas what is apprehended through experience cannot (Metaphysics, 981a30–981b9, 1029b3–8; Post. Anal.; cf. Nicomachean Ethics, 1139b25). This view—in conjunction with the structuring of thinking and language that Stoicism brought to Rome (but cf. Gordley, Reference Gordley2013, pp. 12–18)—greatly influenced law's teaching and learning in the West to date, particularly since the glossators’ reason-oriented, scientific didactic (law as scientia iuris), based on Plato's diaresis and Aristotle's analytical works, established itself throughout Italy and Europe (see e.g. Berman, Reference Berman1983, pp. 132–151; Padoa Schioppa, Reference Padoa2007, pp. 87–98, 149; Errera, Reference Errera, Padovani and Stein2007).
For us to comprehend this fully, attention must be paid to the role that theory and method (two subjects that, not coincidentally, legal comparatists have been increasingly discussing) play in the cognitive process. As set out by Wootton (Reference Wootton2016, p. 348), every theory aims methodologically to construct a progressive system of knowledge—that is to say, a system in which knowledge progresses on the path that is aprioristically laid down by the theory's own procedures and terms. From this, it follows that only if and when the factuality and ambiguity of life are deactivated so that they can fit the (already given) framework of intelligibility is knowledge produced—that is, beings as phenomena are assessed and apprehended.Footnote 26 Needless to say, conceptual reasoning plays a crucial role in the cognitive process, especially within the social sciences’ spectrum of analysis (concepts as Weberian Gedankenbild; Baert, Reference Baert2005, p. 46). This is why Heidegger (Reference Heidegger and Rojcewicz2013, p. 34, emphasis added) writes that ‘[w]e [have come to] know rigorous thinking only as conceptual representation’—a standard approach in legal positivist inquiries (Tamanaha, Reference Tamanaha2017, pp. 2, 30)Footnote 27 that Gordley (Reference Gordley2017, p. 179) rejects.
The foregoing discussion reveals that, when Legrand speaks of comparative law's ‘epistemic commitments’, he is in fact suggesting that we adopt the Promethean (i.e. metaphysical) approach to life. Yet, to be sure, some commentators might argue that Legrand seems to be aware of knowledge's detachment from life's facticity and ordering constructivism as shown by its dependency upon its own terms and procedures (or methodological effectuality). As Legrand (Reference Legrand2017, p. 75) himself writes:
‘any collection of knowledge must assume, at the outset, various epistemic proclivities like an understanding of what is worthwhile (and of what is not), an appreciation of what is significant (and of what is not), and a sense of what is possible (and of what is not).’
Further, it might be noted that my claim ultimately fails to appreciate Legrand's insistence over cultural difference. Indeed, I have been contending that knowledge's authoritarian instances operate through the transcendental character of metaphysics’ working logic. My use of the term ‘metaphysics’ is Heideggerian, as, by it, I refer to the science that looks at beings as phenomena comprehensively (i.e. as a whole) with the aim of systematising them according to a common feature that they all share (see e.g. Heidegger, Reference Heidegger and Krell D2008b, p. 106; cf. Cassirer, Reference Cassirer and Manheim1955, pp. 76–77). Metaphysics, then, transcends the factual singularity of beings as phenomena, including human beings and relations, as a way to structure (and thus equalise and objectify) them in a given order of reference that may be cognitively accessed through judgment.Footnote 28 Now, it might be observed that Legrand's incessant fight against those political manoeuvres, aimed at reducing everything to the same put forward by some comparatists ‘and other conquérant’ (Legrand, Reference Legrand, Legrand and Munday2003, p. 304), proves my reading of his call for a sensitive ‘search for meaning’ (ibid., p. 261) to be misleading. If differences are affirmed, if ‘comparative legal studies [must move] beyond resolute technical confidence, synaesthetic or monumental vision and mathesis universalis’ (ibid., p. 250), it might be noted, then Legrand's project cannot be metaphysical. While sound, such criticism does not, per se, challenge my point regarding the central role that the philosophical blurring of the ‘experience–knowledge’ dichotomy plays in Legrand's thought. This can be further appreciated by reflecting on Legrand's critical analysis of legal positivism's technical mastery of the world, set out earlier, that is directly related to his rejection of a scientific, sterile and ultimately universalistic attitude towards the cognitive structures that inform and shape legal orders as cultural products.
3.2 Legrand's socio-legal positivism
This brings me to the compatibility between Legrand's argument and Tamanaha's socio-legal positivism. Since the very beginning of his AJCL paper, Legrand affirms the need for abandoning the a-cultural attitude of positivist approaches to normative phenomena. No doubt, this will take some doing, as positivism has become the doxa (Legrand, Reference Legrand2017, p. 4) of comparative law's method. Simply put, Legrand observes, legal positivists have no time to bother themselves with culture. This is due to the fact that
‘positivists of all hues are primarily concerned with analytics, that is, with legal technique and with the rationalization of legal technique. They foster “legal dogmatics,” to transpose a German phrase, in as much as they aim to arrange the law in the form of an orderly, coherent, and systematic representation of the different rules in force, largely applying at the behest of the state. Throughout, their investigations remain squarely set on rules—on what has been posited by authorized officials as “what the law is”—and on the formulation of accounts of these rules, whether judicial or academic, which are offered as veritistic.’ (ibid., p. 4)
Under positivism's instrumental ‘epistemic restriction’ (ibid., p. 8), then, culture ‘has persistently been ignored on the ground that, being too liquid, culture fails the (narrow) analytic or empirical test pertaining to the question of legal epistemic legitimacy’ (ibid.). As a result, legal positivists’ mindset can
‘only ever allow one to identify the law in force. It cannot do more, and it cannot reasonably be expected to do more. When it comes to foreign law, positivism is thus seen to behave in stationary intellectual fashion. While it harbors detective value, it lacks epistemic valency.’ (ibid., p. 90)
Now, leaving aside the fact that, if legal positivism merely identifies foreign laws, it cannot fabricate them (cf. Siliquini-Cinelli, Reference Siliquini-Cinelli and Siliquini-Cinelli2019),Footnote 29 what is worth noting is that the openness towards culture that informs Tamanaha's (Reference Tamanaha2017) realistic socio-legal positivism appears to contradict Legrand's reconstruction.
Not only, indeed, does Tamanaha set himself apart from those positivists that lie at the centre of Legrand's criticism, such as Hart and Raz (Legrand, Reference Legrand2017, p. 4; Tamanaha, Reference Tamanaha2017, pp. 67–68, 150; Reference Tamanaha2001a, pp. 133–170),Footnote 30 but both Legrand (Reference Legrand, Legrand and Munday2003, p. 244) and Tamanaha (Reference Tamanaha2000; Reference Tamanaha2001a, pp. 171–205; Reference Tamanaha2017, chapter 3) offer a non-essentialist account of legal culture and pluralism. Furthermore, Legrand's view regarding comparative law's purpose and belief that foreign law is ultimately inaccessible because it can never be fully grasped, and thus defined, via analytical (i.e. scientific) means presents a striking similarity with the open-ended conception of law that lies at the core of Tamanaha's pluralistic account. Legrand writes:
‘The concentration on rules has a deleterious effect on students, for it instils in them an intolerance for other forms of learning which they regard as lying outside the parameters of legal analysis and as unrealistic … I prefer a view stressing that … [t]he law derives from historical experience. So do the forms that the law embraces. Legal practices are not simple acts of accumulation and acquisition that would have taken place over the years or centuries. It would be absurdly reductionist to see legal practices as the mere formulation of rules. What accretion of elements one sees is supported by impressive ideological formations. The law, in its many manifestations, is an incorporative cultural form. Just as culture is a source of identity, legal practices are a source of identity. They encode experiences. To my mind, legal practices are very much a reflection of a given culture and of a given legal mentalité (in the sense of the interiorised culture). They reveal an implicit structure of attitude and reference, or a way of experiencing legal order.’ (Legrand, Reference Legrand1995, pp. 265–266; see also Legrand, Reference Legrand2005, p. 707)
Similarly, according to Tamanaha (Reference Tamanaha2001a, pp. 169; see also ibid., pp. 5, 149, 194, 197; 2017, Ch 3), law is ‘whatever people identify and treat through their social practices as law (or droit, retch, etc.).’ And, indeed, like Legrand's ‘critical comparativism’ (Legrand, Reference Legrand1995, p. 263), Tamanaha's socio-legal positivism places social practices at the centre of intellectual considerations. More specifically,
‘it presupposes very little about law, leaving that open to conventional identification, and subsequent conceptual analysis and empirical study. Instead of dictating what law is, it asks how groups of people talk about law. Instead of assuming what law does, it examines what people do with law. It creates a framework for the identification of law, accepting that there may be more than one phenomenon that goes by the name of law, then leaves the rest to be filled in by actually existing social practices. If law is indeed a human social creation, only a flexible, open approach can capture the myriad forms and manifestations that law(s) take(s).’ (Tamanaha, Reference Tamanaha2001b, p. 21)
The fact that both Legrand and Tamanaha advocate a realistic analysis of law and legal cultures confirms the similarity of their reflections. True, Tamanaha's theory denies the analytical accuracy of the Mirror Thesis, according to which ‘law is a reflection—a mirror—of society’ (ibid., p. 1; see also Tamanaha, Reference Tamanaha2001a, chapter 5). Yet, Tamanaha moves away from the Mirror Thesis only to set his account apart from sterile (or a-cultural, as Legrand would call them) elaborations that conceal legal development's dependency upon transplantation phenomena and intrusive power dynamics.
In any case, Legrand appears to be aware of the resemblance between his account and that of Tamanaha. Otherwise, meticulous as he is when he comes to referencing, he would have not quoted, towards the middle of his AJCL paper, one of the key passages of the latter's scholarship on the relationship between law and culture. ‘The structural and inherent enmeshment of law and world,’ we read,
‘means that “law is thoroughly a cultural construct” so that culture simply cannot stand independently over and against the law as something with which the legal analyst could plausibly maintain but an estranged acquaintance in his quest for law's meaning’ (Legrand, Reference Legrand2017, p. 69, quoting Tamanaha, Reference Tamanaha1999, p. 128).
Given the importance of his return to the AJCL's pages and the profundity of his critique of the positivist stance, it is a real pity that Legrand does not engage further with Tamanaha's socio-legal positivist account. Or perhaps it reveals more than what might be thought at first glance.
4 Conclusion
Legrand's ‘negative comparative law’ assumes the form of an ‘undisciplined gesture’ (Legrand, Reference Legrand, Legrand and Munday2003, p. 242, emphasis in original) or ‘comparison as caress’ (ibid., p. 311, emphasis in original) as he himself calls it drawing from Theodor Adorno's negative dialectics and Zygmunt Bauman's thought. This is composed of two a-methodological, revolutionary, interconnected and ultimately ethical (ibid., pp. 250, 309) moments: an ‘experience of discordance’ (Legrand, Reference Legrand2017, p. 132) and an ‘epistemological break’ (Legrand, Reference Legrand, Legrand and Munday2003, p. 265). Both events are to be actualised through the other-encountering and self-defining properties of contextual (i.e. relational: Legrand, Reference Legrand2006, p. 370) modes of apprehending. This in turn requires a return to the origins of comparative law as an intellectual discipline.Footnote 31 In this sense, opting for a comparative law that assumes the form and delicacy of a caress serves to deactivate the ‘violent enterprise’ (ibid., p. 367) through which legal positivism's ‘specification of “sameness”’ (ibid.) is achieved—that is, by ‘artificially exclud[ing] the epistemological dimensions of the law … from the analytical framework’ (ibid.).
Legrand is right in contending that the comparative analysis of law and legal cultures involves self-referred, other-revealing and meaning-uncovering practices. However, his overall account blurs not only the philosophical distinction between experience and knowledge. Above all, it obfuscates the role that such distinction has for the comprehension of what the comparative appreciation of regulatory phenomena ultimately entails.
That this has far-reaching implications that transcend the comparative-law dimension should be obvious. Not coincidentally, Legrand aptly observes that the decisions we make when approaching, categorising and making use of comparative law have multiple repercussions that extend well beyond the discipline's purview. ‘Many of the theoretical issues at stake are urgent’ (Legrand, Reference Legrand2017 p. 132), he aptly writes. This is because
‘one's conception of comparison has a direct impact on the kind of knowledge that will be apprehended as “legally” relevant (or as “legally” insignificant) and therefore on what voice the other law will be allowed and thus on the very presencing of the other-in-the-law.’ (ibid., p. 128; see also ibid., p. 83).Footnote 32
From this, it follows that ‘the comparative dynamics between self and other conceal capital issues for human existence, for collective life, and indeed for the future of the planet’ (ibid.). Legrand's point can be proved by using it against itself—that is, by showing why the voiding of the ‘experience–knowledge’ antithesis that characterises Legrand's thought has major consequences for the understanding of what law's juridical component and its teaching are and entail. Indeed, either law is a science that transcends of humans’ finitude and uniquenessFootnote 33 or it is a matter of epistemically free experience that cannot do without it.
Regrettably, Legrand is not the only comparatist not to have paid attention to the philosophical relevance of the ‘experience–knowledge’ dichotomy in (comparative) legal education and practice. In the (seemingly endless) literature introducing, outlining and discussing the nature, methods, aims, strengths and flaws of the comparative study of law and legal cultures, an analysis of what distinguishes experience from knowledge does not appear. In fact, the reader is presented with a great deal of accounts in which the terms are used interchangeably. True, scholars have been spending considerable effort in showing the relevance of a contextual approach to science and scientific method(s) of inquiry within the comparative-law dimension. In so doing, however, they also distinguish between ordinary and scientific knowledge, in so obfuscating what renders knowledge such.
Unfortunately, the voiding of the philosophical distinction between experience and knowledge does not affect comparative law only. It is, rather, a key feature of humankind's modern condition—a price we need to pay for, among other things, the role that the word ‘experience’, as synonymous with ‘experiment’, played in the foundational event of modern knowledge: the Scientific Revolution (Wootton, Reference Wootton2016, pp. 51–54, 72–73, 81, 104, 312, 319, 347, 417; see also Tagliapietra, Reference Tagliapietra2017, p. 138).Footnote 34 Arguably, though, comparative law will never reach its much-awaited ‘maturity’ (Örücü, Reference Örücü, Örücü and Nelken2007, p. 44) if the ‘experience–knowledge’ antithesis is not placed at the centre of scholarly discussions over its theory and practice.
Conflicts of Interest
None
Acknowledgements
An earlier draft of this paper was presented at the Critical Legal Conference (Critical Legal Education stream), held at The Open University, 6–8 September 2018. I wish to thank all those who provided me with valuable suggestions, as well as two anonymous reviewers for their constructive comments. Errors are mine only.
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