Rethinking Comparative Law

Given globalization, transnationalism and postcolonialism, not to mention the Europeanization of laws, every law student and every lawyer is bound to encounter foreign law in the course of her or his professional life. Increasingly, legislators show themselves open to the influence of foreign legal ideas in the legislative process. Also, many appellate courts are prepared to refer to foreign law in their opinions. At least as importantly perhaps, private parties often enter into legal arrangements, such as contracts or wills, featuring a foreign dimension. In sum, nowadays, foreign law is everywhere and cannot be circumvented.
\nOver the past decades, the field commonly known as ‘comparative law’, which broadly speaking addresses engagement with foreign law and the comparison of laws, has significantly expanded. The multiplication of journals, the proliferation of scholarship and the creation of courses or summer schools specifically devoted to comparative law attest to the increasing popularity of comparative law. Within the Western legal tradition, the dominant position in comparative law has long been assumed by Konrad Zweigert and Hein Kötz, two widely influential German legal scholars. For over four decades, Zweigert and Kötz’s textbook, Introduction to Comparative Law, transl. by Tony Weir, 3rd ed. (Oxford: Oxford University Press, 1998), has governed much of the research undertaken in the field of comparative law and has defined, politically and otherwise, what kind of comparative legal research is to be regarded as ‘good comparison’. Their self-styled ‘functionalist’ method, grounded on a black-letter approach to law, has proved particularly authoritative. In recent years, however, a minority of authors have mobilised cultural studies as well as economic, literary and philosophical theories with a view to highlighting the shortcomings of orthodox comparative legal theory. Undoubtedly, the application of such perspectives to the field of comparative law offers fresh and crucial insights into the theory and practice of comparative law.Problematically, though, even the most recent critical literature in the field still fails to address a certain number of key issues arising in comparative law. For example, the task of the comparatist is to explain, by making use of her or his language, a foreign law usually formulated in a different language. Specifically, the comparatist is frequently asked to translate various kinds of legal texts, such as treaties, statutes, judicial decisions, contracts and scholarship from one language into another. Very often, the active or passive knowledge of a foreign legal language and culture is regarded as a sufficient condition for the translation of foreign legal materials. Indeed, the vast majority of comparatists either ignore or underestimate the obstacles standing in the way of every attempt at translation even as, within translation studies, specialists have long acknowledged that, properly speaking, translation is impossible or, at any rate, that translation effectively means transformation. In a context where the question of understanding proves of the utmost importance to lawyers working on the international scene the matter of the feasibility of translation needs to be probed, whether theoretically (can it be done?) or practically (how to do it?). This co-authored book wishes to rethink comparative law by providing both students and lawyers with the intellectual equipment allowing them to approach foreign law in a meaningful way. The book addresses a range of topics illustrating the contemporary relevance of comparative law. Further, it heightens sensitization to the singularity of foreign legal cultures and it invites familiarization with key aspects of the common-law and civil-law traditions which have defined a significant range of legal cultures worldwide over the past centuries. Operating from an interdisciplinary standpoint, the book also offers an introduction to deconstruction, hermeneutics, linguistics and to translation studies with reference to legal interactions on the international scene. Throughout, the book uses concrete examples issuing from a number of different national laws, including Canadian, English, French, German and US law. At all times, the book prompts in-depth epistemological reflection upon the possibilities and limits of cross-border legal interaction. In this way, it clearly distinguishes itself from the available literature in the field.

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