Comparative Jurisprudence (I): What Was It like to Try a Rat?

Abstract

Alle Begriffe, in denen sick ein ganzer Prozefi semiotisch zusammenfafl4 entziehen sick der Definition; definierbar ist nur das, was keine Geschichte hat.' 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, "comparativejurisprudence," 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 ' "All concepts in which an entire process is semiotically summed up elude definition; only that which has no history can be defined." FRIEDRICH NIETZSCHE, ZUR GENEALOGIE DER MORAL, pt. II, § 13 (Leipzig, C.G. Naumann 1887). In this Article translation credit for substantial quotations is given in footnote parentheticals; shorter quotations have been translated by the author sub silentio, as here.

Reinvigorating Comparative Law through Behavioral Economics? A Cautiously Optimistic View

“…Such an appraisal of the discipline is by no means uncommon with comparative legal scholars and is often associated with comparative law's (theoretical-) methodological underdevelopment (see, e.g., Chodosh, 1999;Ewald, 1995Ewald, :1891Ewald, -1894Frankenberg, 1985:416-418;Lasser, 2003:197-198;Riles, 1999:224;Reimann, 2002:685-690). This article makes no pretense of surveying the various theoreticalmethodological approaches encountered in comparative law and the different types of criticism they have been subjected to. Rather, the focus is on two overarching (and closely related) deficiencies that seem to permeate the various contemporary comparative law methodologies: first, their widespread disinterest in empirical support that would substantiate or refute their distinct working assumptions and often sweeping claims (see section 2.1), and second, the lack of specification of the otherwise oft-invoked notion of culture (see section 2.2).…”

Legal Reform in China: Institutions, Culture, and Selective Adaptation

“…Although few legal scholars debate the importance or utility of studying law in different societies, the field of comparative law remains conflicted as to identity and purpose. Classical approaches to comparing the content and origins of statutes, administrative edicts and other texts have long given way to studies of institutional performance and social behavior and inquiries about norms and ideology (Ewald 1995;Frankenberg 1985;Sacco 1991). Often this is done in collaboration with other disciplines.…”

The Powers of Application

“…In his article Comparative Jurisprudence: How Was It Like to Try a Rat? William Ewald (1995) deals with a similar problem, from the perspective of comparative law. He is engaged in much the same enterprise as we are now (though he uses more sophisticated examples): He wants to understand the animal trials that were somewhat common in Europe during the Middle Ages.…”