What was it like to try a rat?

• Author: Ewald, William
• Position: Comparative Jurisprudence, part 1

PART ONE

1. THE RATS OF AUTUN

   PART TWO

2. COMPARATIVE JURISPRUDENCE

   1. Remarks on Strategy

   2. The Boundaries of Comparative jurisprudence

      1. Criteria for a New Subject

      2. Distinguishing Comparative jurisprudence

      from the Philosophy of Law III. THE PRESENT STATE OF COMPARATIVE LAW

   1. The Malaise

   2. The Traditional Approaches to Comparative Law

      1. Casebooks and Pedagogy

      2. Works of Scholarship

      3. The Problem of Public Law IV. THE INTELLECTUAL ORIGINS OF GERMAN LEGAL THOUGHT

   1. Introduction

   2. Kant

   3. Herder

   4. Savigny

   5. Conclusion V. THE DEVELOPMENT OF THE CIVIL CODE

   1. The Influence on Constitutional Law

      1. Kant and the Rechisstaat

      2. Gierke, Herder, and the Social State

      3. Conclusions on Constitutional Law

   2. The Influence on Private Law

      1. The Classical Model

      2. Gierke's Criticisms

      3. The BGB

      4. Conclusions on Private Law

   3. The Ignorance of Romulus

      PART THREE

6. CONCLUSION: A NEW SUBJECT?

   1. Two Hunches

   2. A Fresh Start

      1. Loose Ends

      2. Historical Origins of Comparative Law

   3. The Master Argument

      1. Rules and Principles

      2. Principles and the Master Argument

   4. The Axiom of Practicality

   5. The justification of Comparative Law

      Alle Begriffe, in denen sich ein ganzer Prozefi semiotisch zusammenfa[beta]t, entziehen sich der Definition; deftnierbar ist nur das, was keine Geschichte hat.(1)

      The following Article attempts to describe and defend a new approach to the study of foreign law. The core idea is easy to state, although surprisingly difficult to carry out; we shall find that it leads through numerous briar patches before culminating in new and unexpected landscapes. Briefly put, the central claim is this: if comparative law is appropriately combined with legal philosophy the result is a substantially new discipline, "comparative jurisprudence," which is capable of furnishing, not just new knowledge, but a new kind of knowledge about foreign legal systems.

      Strange to say, comparative lawyers have neglected to scrutinize the foundations of their discipline or to think with sufficient rigor about the essentially philosophical question: How can we best come to understand law in cultures other than our own? And this neglect has impoverished the entire subject. Indeed, as one leafs through the journals one encounters a malaise that is scarcely to be found in any other branch of the law. Comparative law, as we shall shortly see, is said by its leading scholars to be superficial and unsystematic, dull and prone to error. In part this malaise is the product of disappointed hopes; for if any subject in the legal curriculum promises to bring home the Wealth of the Indies, it is comparative law. The variability of law from culture to culture and from age to age is an epic theme, and should be a bugle call to scholarship. Alan Watson, perhaps the deepest critic of the subject, recalls that the idea of comparative law fascinated him since he began to study law: "My notion was that the study of legal developments in a number of states would, by uncovering patterns and divergences, best reveal societal concerns, and how law responds.(2) But he quickly discovered that the subject was bent on other goals. Needless to say," he observed, when, as a beginning student, I read the books available to me, such as H. C. Gutteridge, Comparative Law, or Rudolf B. Schlesinger, Comparative Law, I found nothing to my purpose. My concerns were not their concerns."(3)

      Perhaps the most scrious problem with comparative law has been identified by Arthur von Mehren, who speaks of its dispersed' and "scattered" quality and of its inability to congeal into a stable academic discipline:

      Most subject matters in our curriculum, given focus by the needs

      of the practicing profession, experience no difficulty in establishing

      a core of information and theory that is carried forward,

      developed, and refined by succeeding generations of scholars.

      Work in comparative law, on the other hand, tends to be scattered

      and diffuse as to topic, legal system, and purpose. Although much

      excellent scholarship has been achieved, no shared body of

      information and theory, no scholarly tradition susceptible of

      transmission to succeeding gencrations has emerged. One has the

      uneasy feeling that comparative-law scholarship is always beginning

      over again, that comparatists lack a shared foundation on which

      each can build.(4)

      Indeed, to judge from the words of comparative lawyers themselves, it can sometimes seem that the animating spirit of comparative law has been the Muse Trivia--the same Goddess who inspires stamp collectors, accountants, and the hoarders of baseball statistics.

      I argue below that what von Mehren calls the "dispersed" quality of comparative law, its tendency to heap up random particles of information, is the consequence of certain deep philosophical assumptions about law. Those assumptions were explicit in the minds of the scholars who founded the modern academic discipline at the end of the nineteenth century. For a time these philosophical ideas gave useful guidance to the new subject, supplying it with a powerful methodology appropriate to the problems of the day. But gradually the range of problems has shifted; the assumptions have been forgotten; and yet the old methodology lingers on. And in this fact, I argue, lie the roots of the present malaise.

      If this argument is correct, then a philosophical re-examination of comparative law offers the best hope for a remedy. The issues here are complex, and our investigation will have to proceed on a number of different levels. One level will largely be critical. We shall need to identify the shortcomings in existing comparative law; to examine the intellectual underpinnings of the subject, and attempt to understand the way in which it has been shaped by its tacit philosophical presuppositions. The second level of investigation can then be more constructive. If we can give a precise and explicit statement of the ends to be served by comparative law; if we can tie the subject to other academic disciplines, such as legal philosophy and legal history; if we can identify certain core questions; if we can explain why certain kinds of understanding are more fundamental than others; if we can develop a rigorous methodology; if we can, in short, establish solid foundations for the subject, then perhaps on this groundwork it will be possible to construct a systematic and cumulative body of knowledge.

      In this Article I propose to embark on the project of rethinking comparative law. I say "embark" because, as we shall see, the task is too large to be compassed within a single article; but at least it will be possible to show why a prolonged rethinking is necessary and to indicate a direction for future investigations.

      The basic idea, which I have already mentioned, is not new. Von Mehren, in fact, years ago suggested that comparative law will become a more rewarding field of study and a more coherent academic discipline, if it is pursued in tandem with legal philosophy.(5) But I do not believe that the significance of his hint has been appreciated or that its implications have been adequately explored; certainly its influence on the behavior of most mainstream comparative lawyers has been negligible.

      I also concede the oddity of the suggestion, which at first glance appears more likely to increase the problems of comparative law than to diminish them. But it seems to me that the defects of legal philosophy and comparative law are in important ways not parallel but complementary and that each can be used to correct the shortcomings of the other. If philosophy is often blamed for being "all sail and no anchor," for losing itself in theory at the expense of facts, the principal problem with comparative law is that it has immersed itself too deeply in the legal minutiae. It has in consequence become all anchor and no sail: it lacks theoretical direction. So perhaps we can hope for an improvement if we bring the two subjects together.

      This is a long article; before we begin, a few remarks about strategy may be in order. The principal task in what follows is to argue that the malaise of comparative law can be traced to a complicated network of philosophical mistakes. It is widely assumed, for instance, that, because comparative law is intended to serve the needs of practicing attorneys, it should be geared toward studying the sorts of thing that concern practicing attorneys; and that, because the sorts of thing that concern practicing attorneys are the authoritative rules of the positive law, it should therefore concern itself with a comparative study of the authoritative rules of the positive law.

      On these assumptions most comparative lawyers are agreed; but at this point the theoreticians diverge into two camps, depending on the conception they hold of legal rules. One camp asserts that comparative law should study "rules in books," that is, the blackletter text; the other, that it should study "rules in action," that is, the way rules function in their social and economic context. The theoretical arguments about comparative law have tended to oscillate between these two poles, text versus context; and, at the extremes, each theoretical position has given rise to a characteristic style of comparative scholarship.

      Textualism, in its purest form, lies at the root of a familiar kind of comparative study that may be illustrated by the following example. The largest gathering of comparative legal scholars is the International Congress of Comparative Law, a quadrennial event which most recently was held in Athens. The two opening sessions of the Congress, with panels of twenty and fifteen national reporters respectively, were devoted to the topics "Recent Developments in Extinctive Prescription" and Current Development Concerning the Form of Bills of Lading."(6) The idea seems to be that working lawyers need information about such specific matters of doctrine, and that the primary business of comparative law is to give it to them.

      ...