Comparative Law - Problems and Prospects
Comparative Law - Problems and Prospects
Comparative Law - Problems and Prospects
2011
Patrick Glenn
Amr Shalakany
David V. Snyder
American University Washington College of Law
Recommended Citation
Bermann, George A., Patrick Glenn, Kim Lane Scheppele, Amr Shalakany, David V. Snyder, and Elisabeth Zoller. "Comparative Law:
Problems and Prospects." American University International Law Review 26 no. 4 (2011): 935-968.
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Authors
George A. Bermann, Patrick Glenn, Kim Lane Scheppele, Amr Shalakany, David V. Snyder, and Elisabeth
Zoller
PATRICK GLENN2
AMR SHALAKANY4
DAVID V. SNYDER5
ELISABETH ZOLLER6
935
936 AM. U. INT’L L. REV. [26:4
lawyer, then, must consider the different rules that might be chosen
to apply to the transaction. Those are real choices and thus
comparison with a pointed purpose. In my course, then, we cannot
help but be comparatists in order to be good lawyers. We might
choose international law. We might choose our own law. Or we
might choose the law of the other party. We might make yet another
choice. In any case, we have to compare.
That realistic exercise is a very different kind of discipline from
the more theoretical inquiries that tend to dominate comparative
legal scholarship. I have to admit that when I write about
comparative law, I am sometimes awakened by nightmares about
what I’ve done. And a nightmarish fear has certainly made me think
about the problem. Perhaps if I could name it, the problem would
disintegrate like other nocturnal phantoms.
The fundamental problem for me is incommensurability. Outside
of the context of a particular transaction or case, comparison is
difficult for me, at least if I am to move beyond simple observations.
Measurement appears to be somewhere between explosive and
impossible; insight is largely inarticulate, if not entirely
incommunicable. Having thought about the problem, and not having
come to a satisfying conclusion, I thought I would seek help. This
attempt at help now brings us the constellation currently assembled.
I have gathered some of the comparatists I most admire and have
asked them to tell me whether they worry too. Perhaps my concern is
idiosyncratic. But if they worry too, then how might we feel better? I
know this hope is wishful, perhaps even childlike, but I hope that
spending daylight on dark worries will crystallize the real concerns,
dispel the nightmares, and reveal the most promising paths forward.
There is a sunnier aspect for our panel as well. The end of the
congress is for moving forward. Comparatists probably know almost
as well as historians that looking back is necessary. And we know
almost as well as philosophers that rigor in thought and expression is
required. Yet, this necessary work is all in aid of looking forward.
So I have gathered here a panel of luminaries in comparative law.
Let us attend to them.
GEORGE BERMANN: Obviously each member of this panel has
his or her own personal perspective on what the prevailing
challenges are in comparative law. That perspective will become
938 AM. U. INT’L L. REV. [26:4
10. For the taxonomic project, and use of the biological metaphor of ‘legal
families,’ contrasted with a more dialogical notion of legal tradition (conceived
simply as normative information), see H. Patrick Glenn, Comparative Legal
Families and Comparative Legal Traditions, in THE OXFORD HANDBOOK OF
COMPARATIVE LAW 421-439 (Mathias Reimann & Reinhard Zimmermann eds.,
2006).
2011] COMPARATIVE LAW: PROBLEMS AND PROSPECTS 943
11. CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN
IDENTITY 72 (1989) (“Practical reasoning . . . is a reasoning in transitions. It aims
to establish, not that some position is correct absolutely, but rather that some
position is superior to some other. It is concerned, covertly or openly, implicitly or
explicitly, with comparative propositions.”).
12. A recent survey of the debate identified some 3,000 law review
contributions in the United States alone. See, e.g., Roger P. Alford, Lower Courts
and Constitutional Comparativism, 77 FORDHAM L. REV. 647 (2008). For a recent,
book-length treatment of the debate, in terms of necessary ‘engagement,’ see VICKI
C. JACKSON, CONSTITUTIONAL ENGAGEMENT IN A TRANSNATIONAL ERA (2010).
944 AM. U. INT’L L. REV. [26:4
that, then there are useful suggestions in the history of the word
itself. Where does the English word ‘compare’ come from? It comes
from the outre-langue of English, French, and the French word
comparer. Where does the French ‘comparer’ come from? It comes,
of course, from one of the outre-langues of French, Latin—
specifically the Latin word ‘comparo.’ This is a composite word,
composed of the word com (or cum), in English ‘with,’ and par, in
English ‘peer’ or ‘equal.’ So com-paring can be seen as a process of
existing with an equal, or that which is taken to be an equal, in spite
of evident differences. It is a process of what was once referred to in
Spain as convivencia, the process of living together in a non-
conflictual manner in spite of profound differences or beliefs.13
I think it is today the main task of comparative lawyers to develop
multiple means of convivencia, as a way of enabling the world to live
in a non-violent manner. Now the exquisite irony of this is that the
more successful comparative lawyers become in doing so, the less
visible comparative law will be as a discipline. Everyone will be
doing it. There is a clear parallel with Alice in Wonderland’s
Cheshire Cat who would slowly disappear while smiling. The last
thing you saw was the smile. Perhaps the last comparative lawyer in
the world will disappear leaving only a smile [audience laughter].
And the smile of the world’s last comparative lawyer will be the sign
of the ultimate triumph of comparative legal thinking. Thank you
very much.
KIM LANE SCHEPPELE: I gather that I am on this panel for two
reasons. First, I am not just an academic law professor but also a
social scientist. And second, I’ve worked extensively on the part of
the world formally known as Eastern Europe.
After 1989, I began studying the political transitions in the former
Soviet world, focusing on how police states turn into rule of law
states through dismantling surveillance, bringing police under law,
increasing procedural guarantees for criminal suspects, increasingly
parliamentary lawmaking, and generally bolstering transparency,
13. The convivencia was that of Muslims, Christians, and Jews during the time
of Islamic reign in Spain. There is, of course, debate on the extent of their peaceful
co-existence. For the methods and logic of com-paring, see generally H. Patrick
Glenn, Com-paring, in COMPARATIVE LAW: A HANDBOOK 91-105 (Esin Örücü
and David Nelken eds., 2007).
2011] COMPARATIVE LAW: PROBLEMS AND PROSPECTS 945
processes in place. I very much agree with George Bermann that one
of the key challenges for our field is the increasing role and
increasing penetration of international law into domestic law. George
is a specialist in international private law where the dynamic is quite
different than in international public law where I tend to work. In my
areas of research—legal transitions and anti-terrorism law—
international institutions have had an enormous effect on the
landscape of domestic law in parallel ways in multiple countries at
once. Let me give two examples that illustrate both the gaps between
law on the books and law in action as well as the increasing
penetration of domestic law by international law.
In the former Soviet world, international financial institutions had
an important say about how countries in the region accomplished
their transitions. Almost all of the countries of the former Soviet
world came under International Monetary Fund tutelage at some
point in that process. When that occurred, the domestic law of
countries under the IMF-mandated austerity programs could no
longer be understood primarily in terms of the country’s own internal
law-making processes. Agreeing to loans from international financial
institutions required changing domestic law in particular ways, even
when domestic lawmakers had no desire to do so. As a result, we
saw sweeping across the former Soviet world programs that slashed
social safety nets, imposed flatter tax systems, created openings for
global capital to come into the domestic economy, and took back
benefits that had been promised to citizens from the Soviet period.
Much of this was accomplished by law, and the legal effects had to
be documented back to the international financial institutions to
show that they had worked. The requirements of the international
financial institutions not only necessitated legal change, but also
mandated that there be more than the usual degree of correspondence
between law and practice. If we as comparativists only examined
these countries horizontally—comparing Poland with Hungary or
Russia with Ukraine—we would have missed that these common
programs sweeping across such a wide swath of the former Soviet
world were the result of the common mandate of international
institutions. Moreover, we can see in these austerity programs
external demands for results, which made law in action rather closer
than it often is to law on the books.
In the global anti-terrorism campaign, a series of resolutions of the
2011] COMPARATIVE LAW: PROBLEMS AND PROSPECTS 949
14. Because of the advent of the Arab Spring in Egypt, Professor Shalakany
was not able to participate fully in editing these remarks. The editors have worked
with, and we hope remained faithful to, his text, but he has not been able to check
all editorial changes. His remarks in response to the interventions from the
audience could not be included for similar reasons.
2011] COMPARATIVE LAW: PROBLEMS AND PROSPECTS 951
years has been to grapple with how Islamic law has been
traditionally defined as a field of comparative legal studies, pretty
much since 1932 when the First Hague Congress of Comparative
Law passed a resolution put forward by the Egyptian Delegation, and
adopted ‘à main levée,’ formally reserving “dans le prochain
Congrès, une place à l’étude du droit islamique non seulement
comme source de droit comparé.”15 That to my mind was the
historical moment when my field became a subject of comparative
law, a deeply emotional moment for the Egyptian Delegation which
returned back to Cairo beaming with nationalist pride that Islamic
law has finally made it on an equal footing with civil law and
common law, and a deeply disciplinary moment out of which came
an entire field of study concerned with finding functional analogues
across these three legal traditions, all the way from family law to
banking and finance.
My biggest challenge is the definition put forward since 1932 at
the Hague Congress on what constitutes ‘Islamic law’ for
comparatist purposes. See, if you’re going to study Islamic law, then
what you’re fundamentally studying is Islamic legal history because,
as you all know, Islamic law is not fundamentally thought of today
as a law in action, but rather a law that existed in the past and then
was replaced after the colonial encounter by a variety of civil and
common law transplants from the late nineteenth century onwards. In
that historical understanding of Islamic law as fundamentally a thing
of the past, there is one definition that dominates comparative legal
studies since 1932, which must now come to grapple with very
serious critiques that demand of us a rethink of what constitutes
Islamic law.
To give this a bit of a theoretical framework, I’m going to use the
work of the French philosopher and historian Paul Veyne,
specifically a beautiful short book published back in 1971 called
Comment on écrit l’histoire, or “how we write history,” in which he
introduces something called “[l]a notion d’intrigue.” According to
Veyne, for the historian “les faits n’existent pas isolément, en ce sens
que le tissu de l’histoire est ce que nous appellerons une intrigue, un
with in comparative law between Plot No. 3 and Plots 1 and 2 is first,
a very clear distinction between lashings and stonings on the one
hand and fines on the other; second, for someone who is interested,
as myself, in a progressive transformation of Islamic law in the
future, if you include siyasa as part of your study of Islamic law, as
opposed to the dominant tradition in scholarship today, then the very
definition of your discipline becomes unclear.
And this is where I am torn. It seems on the one hand that it’s
much better to be fined than it is to be lashed or stoned. On the other
hand, the evidentiary barriers to conviction that exist at the bottom of
the first table and that effectively stop Islamic law from ever being
applied might also take you in an opposite direction. It might be
actually better for you to stick with Plot No. 1 because it might
actually provide more safeguards in keeping the state outside of the
bedroom.
This has been an incredibly short and brief description but I’m
glad to expand it more in questions and answers. Thank you.
ELISABETH ZOLLER: First, I would like to thank Professor
David Snyder for having invited me on this panel and for giving us
such good directions as to what we should talk about this morning.
Each of us was invited, to all feasible extent, to choose a particular
theme among the numerous problems of the discipline comparative
law. My own theme deals with the indeterminacy of the discipline—
what I could also term the uncertain object of comparative law.
What makes me uncomfortable in comparative law is the
indeterminate nature of the discipline. What is its goal? What is its
end? What are we trying to do, to prove, or to achieve when we
compare legal systems?
Where is the need to ask such metaphysical questions, will you
say? My answer is based upon Jean de la Fontaine’s advice, the
French fabulist who recommended in The Fox and the Goat:
“Whatever way you wend, consider well the end.”17
17. JEAN DE LA FONTAINE, Le Renard et le Bouc [The Fox and the Goat], in
OEUVRES COMPLETES: FABLES CONTES ET NOUVELLES [COMPLETE WORKS:
FABLES AND SHORT STORIES] 115 (Jean-Pierre Collinet ed., 1991), translated in
Jean de la Fontaine, The Fox and the Goat, ETURAMA.COM,
http://www.eturama.com/histoires/the-fox-and-the-goat-1068 (last visited Jul. 1,
2011).
956 AM. U. INT’L L. REV. [26:4
20. Many of the interventions were not entirely audible in the recording and
thus not available for transcription. The editors, with apologies to intervenors, have
done their best to state the sense of each intervention. In addition, not all
intervenors are audibly identified in the recording, so not all can be identified here.
As with the panelists’ presentations, all French is here translated into English by
the editors.
2011] COMPARATIVE LAW: PROBLEMS AND PROSPECTS 959
new institutions, new structures that can address the problems that
need to be addressed.
UNIDENTIFIED SPEAKER: I’ll join the chorus here. I take issue
with Professor Bermann’s comment. If I understood it correctly, the
appearance of public international law and private international law
elevates utility over practicality. I think that for comparative law—in
my class I focus on this, I have a practice background—the most
important thing in international practice is understanding where your
clients come from. And for that you need to know comparative law.
That’s the most important thing in practice.
I would say the other really practical value is—one of the panelists
already said this—any law reform is comparative. So I would just
agree with the other side in this fashion, that that’s the core basis.
And I think it’s still perfectly valuable.
OLEKSIY KRESIN: Oleksiy Kresin, Ukraine. I have a comment
and a question for Patrick Glenn. You mentioned something about
the history of comparative law and the start of this history. Two
centuries ago in 1810, Paul Feuerbach mentioned comparative law as
an academic discipline, called comparative legal science. If we take
this as a starting point, maybe Feuerbach’s commentary should be
taken to be a sign of a well-established comparative legal science as,
perhaps, he assembled the first well-established treatise on
comparative law as general subject.
You know it’s an eternal question—what is the starting point of
comparative law? But you know it’s quite curious when you point to
1869 and the creation of the French Society of Comparative
Legislation as a starting point because in the same year, we had in
Ukraine, in Kiev, a treatise on the history of comparative law. So
how could this have started in 1869 when the history of comparative
law was already being written? Thank you.
RALF MICHAELS: Ralf Michaels, Duke University. There is a
certain call on the panel, as I take it, to have more sophistication in
comparative law. However, it seems to me that one problem of
comparative law in action where it is most influential—in the World
Bank, in the Rule of Law Project of the American Bar Association—
is that these projects do not even reach the modest level of
sophistication that we comparative lawyers already have, or put
differently, that there is almost no comparative law in these projects
2011] COMPARATIVE LAW: PROBLEMS AND PROSPECTS 961
perspectives. And the majority of the world may have very different
ideas about lots of these issues.
And because of the problems with so much wealth, as represented
in this room, and not enough wealth from the majority of these
countries, I think it would great if somehow we could get the
resources in the next four years to assemble critical masses from a
variety of countries. And I don’t know if that’s by foundations
sponsoring people or by different institutions here at the Society
sponsoring people. So we could update these debates with many of
the voices that are not in the room.
And I’m hoping, as Patrick was saying, that there would be this
Cheshire cat with a grin. And the grin would come about from the
joy that would come from hearing from the majority of the world
scholars and practitioners on these topics. Thank you.
NICOLÁS ETCHEVERRY: I will just follow up your thoughts.
Thank you for this wonderful panel. And I would like to congratulate
you all. A special thanks to Professor Elisabeth Zoller for what she
said about warning us about the risk and danger of finding
comparative law only a consumer product and having only a very
utilitarian view of it. She quoted Montesquieu and the infinite variety
of mankind. And that is if that infinite variety of mankind is not
telling us to become those voices of the world that are not listened to
today, then we are in debt. The infinite variety of mankind forces us
to understand, respect, and love each other, each time more, and each
time better. And if humanism and human sciences do not intersect
with comparative law, then comparative law loses its meaning and its
goal. Thank you very much.
PABLO LERNER: Pablo Lerner, Ramat Gan School of Law,
Israel. And I have a question to Professor Shalakany. As a matter of
fact, I continue the path of Professor Wing. I have read your article
addressing the adoption of foreign ideas in Egypt.
During this congress I was asking different people about their
thoughts on the following idea: I don’t know how it is possible to
seek harmonization and multiculturalism. So this is what led me to
the question. On one hand we study for a world of codification; on
the other hand, there are a lot of people who want multiculturalism,
pluralism, and so on. Furthermore, the problem of harmonization
continues. They do not have a very clear role in this process. They do
2011] COMPARATIVE LAW: PROBLEMS AND PROSPECTS 963
not play the game. And I am not sure of even in the following
congress there will be 300 persons from China, 300 persons from
Europe, 300 scholars from Guatemala. Honestly, I do not know. And
especially that you have to deal with this question. So perhaps you
can help me finish the congress on this matter. Thank you.
SYMEON SYMEONIDES: Thank you, David. I shall be brief. I
don’t think it should matter when comparative law began, but since
several dates were mentioned, let me give you another date. How
about 700 BC? When Solon, the lawmaker in Athens, was asked to
draft the laws of Athens, do you know what he did before that? He
traveled around the known world, at least the Mediterranean villages.
He studied the customs and went back home and drafted laws based
on the wisdom or experience of that excursion. So in a sense,
comparative law, or at least the idea of observation, began then. And
I’m sure there are other examples in history where the laws of other
countries were recognized before, but I don’t know.
Another point on George’s take on the connection between private
international law and comparative law: I think that connection is
becoming increasingly close. I will give you an example. In the old
days, we used to choose the applicable law based on the context of
all states with a relationship. You didn’t need to know what you were
choosing. In fact, you were not supposed to care what you were
choosing until after you had made the choice and then you have the
ordre public exception and so on. So a lot has changed since then. At
least in the United States, and increasingly in other countries in the
world, we care very much what we choose and why we choose it.
And we believe that there cannot be an intelligent choice unless you
know and understand very well the laws which you choose. As a
result, that has made choice of law far more complex but it also
increases its dependence on comparative law. It made choice of law
more uncertain but we believe it made it more rational. So the
relation continues, and it is becoming even more intense. Thank you
very much for an excellent, excellent time and an excellent congress.
Thank you.
There has never been and there never will be a nation state.
But we have not taught that. We have not taught in reality how
successful states are successful. Diversity exists but it is within them,
as with the convivencia that the Spanish identified and were very
successful in implementing for a long period of centuries. So the
task, I think, of being comparative lawyers of the future is to attract
attention to the actual complexity of human relationships. And Ralf,
it’s not for us to dumb down the World Bank; it’s doing a good
enough job of that itself [audience laughter].
GEORGE BERMANN: Thank you. And of course, those were all
very stimulating and, in some cases, provocative comments. What I
sought to convey in my remarks is the challenge of performing
comparative law on a level of sophistication that’s appropriate for the
task to which it’s being harnessed. And I think that the message that I
think Elisabeth Zoller shares with me is not that we should deny the
utility of comparative law, that we should deny its utilitarian
dimension, but that we should labor with extreme effort to preserve
that which is not utilitarian about comparative law.
And that's why I don't quite understand some of the remarks made
earlier in the conversation to the effect that we on the panel are
questioning the utility of comparative law for the discharge of a
variety of functions. Comparative law is expected to deliver different
goods according to the function it is meant at any given time to
serve. Some functions may call for a high degree of sophistication,
while others demand law in more easily digestible form. Frankly it's
the variety of our missions that's presenting us with the biggest
challenge.
The final comment I want to make is not unrelated to Professor
Adrien Wing’s. I think it’s related. I think that every one of these
conferences should focus less on, or not focus exclusively on, the
utilitarian value of comparative law, and instead the focus should be
on the more cosmopolitan and more inclusive and more spacious
concept of the community in which we’re investing ourselves. I think
we are trying to move in that direction, but I would be the first to
agree with Adrien that conferences such as these have done a great
deal to make up ground in regard to the cosmopolitan composition.
The degree of cosmopolitanism within the constituency is relatively
high. I don't think we need to belabor the problems in conceiving of
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