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COPYRIGHT 2004 Berkeley Electronic Press
Abstract
This Essay argues that there is not, and indeed cannot be, a single exclusive method that comparative law research should follow. The tasks of teaching, research, of law reform, or historical investigation are too varied and contingent to be achieved by a single approach. It would be a serious blow if all matters had to be analysed from one angle or perspective, or treated with the same detail and depth, or prepared to the same degree or in the same way. Instead there should be a sliding scale of methods and the best approach will always be adapted in terms of the specific purposes of the research, the subjective abilities of the researcher, and the affordability of the costs. It cannot be said a priori that one method is always better than another until we know these variables. It is also shown that prescriptions about method must carefully distinguish the principal user groups, for the complex methods of scholars may be unworkable in the practical world where comparisons must be cost-justified. The message from Mount Olympus must not be that comparative law is always forbidding and difficult. The discipline must be accessible and its methods must be flexible.
KEYWORDS: Comparative Law, Methodology, Postmodernism
"Thinking without comparison is unthinkable. And, in the absence of comparison, so is all scientific thought and scientific research."--G. Swanson (1)
"I have the unfortunate peculiarity of comparing everything that comes my way, the domestic with the foreign, or the present with the past."--Rudolf von Jhering (2)
"[A] comparative approach to law becomes an attempt ... to formulate the presuppositions, the preoccupations, and the frames of action characteristic of one sort of legal sensibility in terms of those characteristic of another."--Clifford Geertz (3)
INTRODUCTION
Methodological discussions, it has been said, are a good cure for insomnia. (4) Of course any number of legal topics have been known to cure that disorder, so clearly excitement is not the best measure of a subject's true importance. Today the importance of methodology to comparative law is indisputable and crucial, and recent years have witnessed an intense and lively debate over new directions in comparative law... These discussions, even if some have been dozing, have been keeping many thoughtful lawyers awake.
The need to compare and differentiate phenomena seems to pervade all forms of human decision-making and may be indispensable to the development of human intelligence and judgment. (5) This holds true not merely for lawyers, but for architects, physicians, biologists, sociologists and others. All lawyers are comparatists in a natural sense, as when they make distinctions, draw deductions or look for a case in point. There is a native process which has much in common with the procedures of comparative law. Common lawyers compare cases and cross-reference them very carefully. The case method is essentially a comparative method based on similarity, analogy and differentiation. Civilians do not reason so differently. Once they have compared the facts of a case with codal texts and previous jurisprudential applications, they subsume the facts to the code or jurisprudence through an act of categorization. Should the code be silent on a specific point, analogies are developed from related texts. The civilians give constant attention to similarity and contrast in legal rules and facts in issue. Thus the ordinary methods of the civilian or common lawyer are grounded in comparison, and perhaps comparative law is in one sense an extension of the natural.
"Comparative law", however, is a discipline which incorporates the idea of comparison into its name and this alone suggests that its method is somehow special or distinguishable from what comes naturally. Indeed the impression that comparative law method involves something special is strengthened by traditional statements that comparative law is only a method and not a substantive body of knowledge. If that were true, we would have to admit that we have for a long time sadly neglected the supposed essence of our subject. Some of the most widely read books on comparative law have virtually nothing to say about methodology and, perhaps in consequence, the rank and file may be described as naive and unaware of methodological questions and issues. They have been led to assume that comparative law can be carried out with the same thinking process that lawyers ordinarily use. Could it be that the ingrained and unconscious methods of lawyers imbued with their own legal culture--whether common law, civil law, mixed system, or other--furnish, by default, the implicit model for comparative law? Unfortunately, this natural paradigm seems rather prevalent. (6)
Before continuing further, however, I need to clarify how I am using the word method. As an abstract matter, comparative law has but one method--to compare and contrast norms, institutions, cultures, attitudes, methodologies, and even entire legal systems. But in practice the word is applied more concretely. Method is now identified by the "techniques" by which comparisons are carried out. (7) These techniques have thereby acquired the status of separate methods: thus we have historical comparisons, functional comparisons, evolutionary comparisons, structural comparisons, thematic comparisons, empirical and statistical comparisons, and all of these can be carried out from a micro or macro point of view. The possibilities are endless. (8) In this paper I will not resist this proliferation, but I may question the assertion, sometimes advanced, that one of these techniques/methods (functionalism) has precedence over the others. I will also argue that some of the strategies discussed in recent scholarship are unrealistic and unattainable standards--even for scholars--and should be viewed skeptically. In my view they usually overlook the comparative-law needs of the legislatures, reform commissions, judges and seem entirely unworkable at the practical level where comparative law must expand its base. These considerations lead me to suggest a more pragmatic and inclusive view of method than scholarly colleagues have advanced, one which takes into consideration the costs and benefits to different users and recognizes that the methods of scholars may be inappropriate to legal reformers and law appliers.
This plea for a more pragmatic and inclusive approach is stimulated by several background concerns. Mainstream comparative lawyers (and I regard myself as one) seem to be caught in the pincers of three developments, each pulling in a different direction. The first of these I would describe as the underdeveloped and emaciated state of our discipline in the everyday practical world. One of our constant goals must be to strengthen and expand the role of comparative law in the practical world. Basil Markesinis has rightly noted that comparative law continues to be "A subject in search of an audience." (9) In England and the United States particularly, it needs to acquire a vocation within the profession and the courts, to become the method of legal institutions, and to emerge from its cloistered existence in the academy. Yet to move into the courtroom and into the halls of the legislature will require methods which are not only enlightening, but feasible and nonthreatening. (10). If the profession is to recognize the "value added" of comparative law, then the additional burdens which it imposes will have to be considered cost-justified. There are potentially high costs in acquiring and analyzing information about foreign law, and these increase dramatically under complex methodologies, so realism demands that even simple methods, which it has long been fashionable to disdain, such as purely textual comparisons, or questionnaires devised to gather foreign-law data, or simple juxtapositions of materials without elaboration or comment,--all of these could have legitimacy and value in practical forms of legal research. (11)
A related challenge emanates from within mainstream comparative law. It began in the early twentieth century with the insight that the focus of comparative law must be upon the law in action, not merely the law on the books. This might be viewed as a call for deeper research into legal sources and the social context around legal rules, with the difference however that this was still a lawyer's context not an anthropologist's, and involved none of the epistemological scepticism of the postmodernists. Reaching the "law in action" is still a scientific ideal of mainstream comparative law, but one is never quite sure how high the cognitive bar has been set. If the phrase means the level of research described by Ernst Rabel and Max Rheinstein, it has rarely been realized even by its proponents, and in light of the practical concerns expressed above, cannot be the universal standard for all of comparative law.
The third pincer is the "postmodern critique" which already dominates scholarship in the fields of philosophy, anthropology, and law and society. This critique has now become fairly influential within comparative law as well. It essentially contends that each legal culture is a unique, culturally contingent product which is incommensurable and untranslatable except through a deep understanding of the surrounding social context. Thus a comparativist's claims to understand another country's law can only be validated through an elaboration of its context, or as Clifford Geertz writes, through formulating "the presuppositions, the preoccupations, and the frames of action characteristic of one legal sensibility." (12) This has been aptly described as "a nearly insurmountable methodological hurdle for the comparative legal scholar." (13) For Anne Peters and Heiner Schwenke, it casts "fundamental doubts" on the utility and possibility of comparative law. (14) "Context" lies beyond the positive law in which lawyers are trained and the benefit of contextual comparisons will depend upon the purpose of the investigation as well as the cost of acquiring this information and expertise. Indeed the western legal tradition to a large degree prizes concepts and generalizations abstracted from the contexts they regulate and values general concepts which perform the greatest number of tasks. When a comparatist seeks to compare the 'structural' and 'contextual' background to the rules under comparison, he or she must in effect reconstruct their socio-economic origins, and his notion of context will tend to be considerably narrower than the background which the legal anthropologist or legal sociologist has in mind. (15) Thus the challenge of the post-modern critique could be called that of making context manageable and of developing an organic method which embodies both law and social underpinnings into the same comparative act.
What emerges from the interplay of these developments is that the practical goal of expanding the base is somewhat paralyzed by the academic discussion, particularly by its tone. The general message from academic circles--and here I only generalize and do not intend to refer to any particular colleague's view--is that comparative law is a difficult and forbidding field reserved for a special few. As portrayed, it always requires total immersion and deep preparation in specific foreign languages and cultures before being attempted; the foreign system should always be seen from the inside and in socio-cultural context; and those who engage in something less are in essence practicing cognitive control over their readers and deluding themselves in the process. To avoid ethnocentricity and superficiality, the researcher must always delve beyond judicial decisions, doctrinal writings and the black-letter law of code and statute and reach into the ill-defined region of "deeper structures" where law perhaps meets philosophy, sociology and social culture.
Of course there is everything praiseworthy about acquiring greater knowledge, even perfect knowledge of the compared object, nevertheless the question is how these standards can be fulfilled by law reformers and law appliers, not to mention academics themselves. I believe these strictures are in part based upon unrealistic assumptions which threaten to make the comparative law enterprise quite impractical. They establish standards of research that are generally unattainable, which means that no project is worth beginning, or if it was begun or accomplished, will not be safe from rigorous critique. And this critique only increases comparative law's reputation for being exotic and forbidding. One wonders how many have been deterred from undertaking comparative law by the demands which have been evoked in the name of legal method.
In this Essay I wish to reconsider a number of these questions and to suggest the need for a more pragmatic, and inclusive view of comparative law methodology. I cannot pretend that the analysis is systematic or complete, nor am I sure that it is not soporific. As an organizing device and to provide a context for reflection, I will present four case studies of comparative method ranging from efforts to grasp the meaning of customary law in Africa to the techniques employed by the Lando Commission in drafting Principles of European Contract Law. I hope to demonstrate a quite unoriginal thesis, that good method is a function of variables, that method should be adapted to the purposes of the project and the individual circumstances of those who pursue it, and that a multiplicity of methods has been a source of enrichment in the best comparative work.
Maseru 1872
Having taken control of the African territory called Basutoland, it was not long before the Colonial Office at Cape Town realized that it had a need to know more about the law of the land. The Chief Magistrate, Mr. Griffith, was instructed...
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