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Kahn-freund Comparative Law As An Academic Subject Essay

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Frankenberg_Rethinking Comparative Law

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described as Juxtaposition-plus: the juxtaposition, excerpts from cases, statutes, and doctrinal treatises 61 and the "pluses," a variety of interpretive and explanatory additions ranging from brief introductory remarks via descriptive sketches of historical backgrounds or systemic contexts to a more detailed analysis of similarities and contrasts. 62 Depending on the author's choice and intentions, Juxtaposition-plus is meant to enhance a deeper knowledge of the domestic laws and their inherent foreign elements, or to open up foreign legal horizons, or to further insights into international law or conflicts of law. 63 At first glance, Juxtaposition-plus appears to have the advantages of a fairly unobtrusive comparative method that clearly represents "the facts" and restrains evaluative comments, thus allowing the student to make up her mind independently about the old and the new law fashions.

If we follow the paths of Juxtaposition-plus more closely, we can discern a pattern that is less objective and open than we may have originally thought. First, the comparatist selects the historical or national context (legal systems, periods of legal history or areas of law, etc.) which constitutes and limits the field and objects of comparison. This seems necessary and quite common-sensical, for nobody can compare everything in the world of laws. Generally and rather implicitly, however, the textbook authors assume that legal cultures are objects whose reality can be grasped adequately through texts and excerpts. And they further assume that law is a coherent body of precepts with clear internal structures ("contracts," ".torts," "criminal law," etc.) and external boundaries ("legal systems"/"culture"). Therefore almost anything is comparable: common law and civil law and Soviet law, torts in Turkey and in the United States, or the federal executive in Mexico, West Germany and the United Arab Emirates. Which context is picked, not surprisingly, depends upon the author's field of study, area of competence and preconceptions about law and comparison. Surprisingly, however, comparatists rarely find it worth mentioning by which criteria they select their material. In general, the "relevant legal systems" or "major legal traditions" are represented

61. SeeJ. BARTON &J. GIBBS, supra note 14;J. MERRYMAN & D. CLARK, supra note 9; R.

SCHLESINGER, Supra note 1; A. VON MEHREN & J. GORDLEY, supra note 1; G. GLos, COM-

PARATIVE LAW (1979); W. MURPHY & J. TANENHAUS, COMPARATIVE CONSTITUTIONAL LAW

(1977); K. KARST & K. ROSENN, Supra note 9.

62. On a continuum ranging from meager to elaborate plus-es, Cappelletti and Cohen, Barton and Gibbs and Karst and Rosenn would have to be distinguished for theoretical elaboration.

63. R. SCHLESINGER emphasizes foreign elements in domestic law. Barton and Gibbs, Liebesny, Murphy and Tanenhaus, and Karst and Rosenn focus on the foreign laws. The

contributions to W. BUTLER, INTERNATIONAL, LAw IN COMPARATIVE PERSPECTIVE (1980) connect comparative law with international legal problems.

as the legitimate objects of study. 64 Typically France and West Germany represent the civil law world, while the United States and England stand for the common law world. Other systems are often included for purposes of contrast.

Which legal texts are selected to represent a system or culture again depends on the author's choice, approach and (implicit) theory. Three major variations and combinations of Juxtaposition-plus can be distinguished: (1) The systematic approach starts with general characteristics

and abstract concepts or with the institutional infra-structure of a "real" or ideal type legal system. It proceeds to identify similarities or

dissimilarities in the other subsystems or areas of law within the relevant context. 65 (2) More common is the casuistic approach with a "factual focus of presentation. '66 In order to illustrate the technique of how conflicts are legally resolved, the author singles out cases, taken randomly from different legal cultures and epochs. (3) Related to the casuistic method is the topical approach which focuses on cross-cul- turally selected social-legal problems and claims to grasp the "law in action." 67

The selected materials are then juxtaposed accordingly. From a systematic perspective, the objects of comparison are classified on the basis of their likenesses and grouped in "families," "styles" or "traditions." On a lower level of abstraction the casuists juxtapose the various legal answers and concrete factual situations, thereby audaciously bridging time and space-especially once they leave the civil/common law world. 68 The topical approach promises to overcome the random nature of the selected items by stressing the commonality of the problems in, say, Botswana, the People's Republic of China, Egypt and California (representing the West). 69 Thus, juxtaposition conveys the message that legal problems and solutions are universal and perennial.

64. See, e.g. R. SCHLESINGER, supra note 9, at xi ("legal systems of those parts of the world with which we have the most significant human and commercial contacts"); M.A. GLENDON. 5upra note 1, at xvii-xviii ("settled resolutions to problems"); H. LIEBESNY, supra note 14, at

65. The systematic approach apparently appeals more to the civil-law trained and/or European scholar. See, e.g. R. DAVID & J. BRIERLEY, supra note 11, K. ZWEIGERT & H. KOTZ, supra

note 1, and, less so, M. CAPPELLETTI & W. COHEN, supra note 9.

66. See R. SCHLESINGER, supra note 1, at xv.

67. J. BARTON &J. GIBBS, supra note 14, at xv-xvi, choose four "common social problems"- inheritance, embezzlement, contract and population planning. K. KARST & K. ROSENN, supra

note 9, at 1, consider "four subject areas" that "are unified by a common theme, and that theme is 'participatory development."'

68. R. SCHLESINGER, supra note 1, at 410-29, for instance, discusses in juxtaposition decisions of the Supreme Court of the Philippines from 1920, of a Louisiana Court from 1821, and of the German Reichsgericht from 1928 and 1932.

69. M. CAPPELLETTI & W. COHEN, supra note 9, at 3-5. See W. MURPHY &J. TANENHAUS, supra note 61, at ix.

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The next step would be a thorough comparative processing of the material requiring some comments on the criteria of comparison and the neutral referent (tertiumn conparationis). Few textbook authors take that step. More often they limit their enterprise to setting up parallel columns (or chapters) or comparable cases, supplemented by comparative remarks. They abandon the idea of a logical and neutral referent for comparison. Instead, the domestic legal system, culture or experience becomes the basis of and provides the conceptual framework for comparison. In comparative constitutional law, for instance, it is tempting to take the United States experience as the measure for contrast and evaluation. 7 0 The common lawyer will, as a matter of course, look at the civil law, and vice versa. 7 '

To set out from the law one is accustomed to and informed about seems plausible; indeed, simply ignoring it would be quite impossible. Yet, it is crucial how the domestic law and legal experience are introduced, and how the others are picked. Typically, comparison starts and ends on the legal home turf. Before the student is exposed to foreign systems, alternative visions and new ideas, her own "system" is posed as authoritative, influential, principal and natural, and so the measure of the other:

There exist today two groups of legal systems that have had wide influence throughout the world, both are of European origin. One is the civil law, the other the common law. In addition, there are other legal systems such as Islamic law, Hindu law, Chinese law and others which developed outside the realm of civil law and common law.- 2

70. See W. MuRPHY & J. TANENHAUS. supra note 61. passim; Kommers, 7heJnrisprudence of

Free Spech in the United States and thMe Fedend Republtc of German), 53 S. CAL. L. REV. 657

71. See F. LAWSON, A Co,\iO. LAWYER LOOKS AT THE CIVIL LAW (1953).

72. H. LIEISNY. snpra note 14. at 1-2 (emphasis added). Other comparatists take a similar approach. Schlesinger begins by applying the comparative method to domestic problems, stress-

ing the importance of cas to keel) the focus on legal techniques and to supplement systematic exposition. R. SCHLESIN(;IR. wpra note 1. at xvi pasiem. Murphy and Tanenhaus establish the presence and authority of their own "system" by first introducing the constitutional system of the U.S. and by beginning nine of eleven chapters with one or more U.S. Supreme Court decisions. Altogether they offer 157 excerpts from court decisions, of which 62 are cases decided by tle U.S. Supreme Court. W. MURPHY & J. TANENHAUS, supra note 61. Even Barton and

Gibbs, who promise a journey to the "Law in Radically Different Cultures," deradicalize their enterprise by introducing the Western concept of law as a framework for comparison. "The following excerpt (from Merryman, The Convergence (and Divergence) of the Civil Law and the

Comnmon Law) identifies a number of variables that are useful in comparing legal systems within the West and that shound be no less effective when comparing legal systems in radically different cultures." J. BARTON & J. GIsS, sip, note 14, at I (emphasis added). A good example of difference laid out and not leveled are the contributions to THE WESTERN IDEA OF LAW (J. Smith & D. Weisstub eds. 1983).

The comparatist's own "system" is never left behind or critically exposed in the light of the new. The new "system," inversely reflecting the comparatist's own insofar as the new is "radically different," or antagonistic (e.g. Socialist law), is finally under cognitive controland affirms the uncritical priority of the comparatist's own system in the course of carrying our a discourse that premises its critical intent. The comparatist travels strategically, always returning to the everpresent and idealized home system: 73 Other societies or legal systems are "not yet" developed, but may be considered on their way. Indonesia has made "progress toward a unified legal system," but problems still remain. Primitive law is rather "formless" and could use some Western rational shaping. Civil law is "more rigid" kwhich has its merits), but flexibility, though it has its price, helps courts solve practical problems. "The practice of the Norwegian Supreme Court is perhaps closest to that of the United States"; by contrast, "Danish Supreme Court opinions are very brief and reveal little of the court's reasoning." "In France attorneys always wear gowns," "in Germany usually, but not invariably."

As a "method" of doctrinal jurisprudence, Juxtaposition-plus compares legal rules and statutes and theories of different systems in order to formulate or at least indicate the general principles and precepts, common cores or the constants of law. The implied adequacy of law to solve what appear to be the universal and perennial problems of life in society betrays and underscores not only how the comparatist's own country's approach is supposed and privileged, but more particularly with respect to the United States, British, German, and French studies considered here, how their notion of law is itself privileged. We can perhaps call this phenomenon the legocentrism of the discourse: the constant reaffirmation of a central notion of law in the avowed attempt to re-evaluate and re-imagine it. There is little outside the law a jurist has to think about when solving one of these problems. Legal texts, supplemented by introductory or conclusive comparative remarks, contain all the ingredients for its solution. The message sounds familiar to the ears of common and civil lawyers. Their concept of law prevails, as do legalism and Anglo-Eurocentrism-through a method that purports to be objective. 7" '

Where only facts are presented-in a systematic, casuistic or topical fashion-there seems to be no need for establishing subjectivity. Yet, Juxtaposition-plus is less detached a method than most authors tend to think. Indeed, some come up with refreshingly honest revelations:

73. These examples are taken from W. MURPHY & J. TANENHAUS, supra note 61, at ix; H.

LIEBESNY, supra note 14, at 10, 155, 345;J. BARTON &J. GIBBS, supra note 14.

74. See, e.g. R. SCHLESINGER, supra note 1, at 1, 35-37 (regarding the analytical method).

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The selection of subjects, growing out of the editors' research interest, is arbitrary.1 5

If one were conducting a scientific experiment to list hypotheses, one might well pick other-and more-countries. Indeed, at one time we considered including India and Italy in this book. But if the purpose is, as here to illustrate on a cross-national basis

judicial involvement in formulating public policy, the six coun- tries we have chosen will do quite nicely. 76

Other comparatists, in fact most, are less candid and mask their arbitrary choices in the convincing rigors of logical presentation. References to an established understanding or to a vast teaching experience and objective didactic concerns serve as mechanisms to deny the author's interests and perspective. For some hints at biographic contingencies, specific academic (and career) interests or technical restraints that are likely to have directed the comparatist's research and writitig, one need only read the marginal stuff: forewords, acknowledgments, introductions. 7 7 That the academic production of knowledge, more often than not, hinges upon contingent factors rather than scientific logic is in itself trivial. It is not contingency as such but its translation into necessity which makes academic work in general and doctrinal comparison in particular dubious.

Comparative Legal Functionalism 78 can be characterized and will be criticized here as a vulgar version of sociological functionalism. 7 9

75. K. KARST & K. ROSENN, suptpa note 9, at 1. See M. CAPPELLETTI & W. COHEN, stipra

76. W. MURPHY & J. TANENHAUS, supra note 61, at ix.

77. This is nor to say that the Various approaches to comparative law can be reduced to contingent factors. However, an author's legal studies in France and West Germany may explain why his later comparative work focuses on their very legal systems. See A. VON MEHREN, stlpra

note 9, at xi; A. VON MEHREN &J. GORDLEY. supra note 1, at x; Von Mehren, spra note 17, passim. Cappelletti and Cohen quite frankly admit that one author's devotion to "problems of access to justice" determined their focus on procedural systems and institutions. M. CAPPELLE'TTI

& W. COHEN, supra note 9, at viii.

78. Though functionalism has become dominant in the more recent approaches to legal comparison, it can be traced back to the "Founding Fathers." C. Monresquieu's DE L'ESPRIT

DES LOIX and, more distinctly. H. laine's ANCIENT LAW bear the earmarks of functionalism. However, only with the rise of Interessenjurispriiedenz and sociological jurisprudence has function- alism become the dominant paradigm of comparative legal research. The influence ofvon Jhering and Pound cannot be overemphasized. See R. VON JHERING, DER GEIST DES ROMISCHEN RECHTS

AUF DEN VERSCHIEDENEN STUFEN SEINER ENTWICKLUNG (10th ed. 1968); Pound, The Influence of French Lau in America, 3 ILL. L. REV. 354 (1908); Pound, Philosophy of Law & Comparatie Lau', 100 UNIV. PA. L. REV. 1 (195 1); Pound, ComparativeLau, in Space and Time, supra note

8. My critique of functionalism owes more than could be footnoted to Robert Gordon's lucid and persuasive article. See Gordon, CriticalLegal Histories, 36 STAN. L. REv. 57 (1984).

79. From the many versions of sociological functionalism, I picked and relied on the works of Luhmann, who I think has developed the most systematic and refined functionalist theory.

See generally N. LUHMANN, AUSDIFFERENZIERUNG DES RECHTS (198 1); N. LUHMANN, SOZIALE

SYSTEME---GRUNDRISS EINER ALLGEMEINEN THEORIE (1984).

While they share some of the basic theoretical assumptions, they follow quite different methodological paths. Both assume that systems do exist and that they have an environment to which they are structually oriented and functionally related. Functionalism as a sociological theory undertakes to solve or rather reduce the problem of causal explanation. Instead of directly inferring from specific effects, say, changes in legal doctrine, specific cause, the cautious functionalist at least claims that he only makes a hypothetical experiment in which he tries to specify the relations between problems and solutions. On the level of hypothetical analysis, the complexity of these relations is reduced to one or more possible functions. The identified relation between problems and problem solutions is meant to guide the search for other possiblilities or "functional equivalents." Whatever the analytical gains of this theoretical strategy may be, it seems to have at least two significant advantages for comparative work: it allows one to reduce complexity in a theoretically controlled way and by its very nature and design it has to be comparative. Under the proviso that the functionalist takes her analytical statements as statements that are hypothetically related to the real world, but not the real world itself, her comparative method promises "good" abstractions and insights into a complex universe.

Comparative Functionalists, sociologically informed and wary of the isolated dead letter, yet less cautious than their sociological colleagues, analyze the living law in its two basic elements: in books and in action. Legal texts and institutions represent solutions for the problems of life in organized societies. The legal system in general and its institutions and norms answer to social needs or (organized) interests. Society constitutes the environment for law-law conceptualized as a sub-system of the social system. Broadly speaking, social life either determines the law or the law influences social development. More refined (and cautious) versions of Comparative Functionalism, such as the one nourished by the "Law and Development" movement, conceptualize law and, society as interdependent but separate entities. 80

80. Three main strands of legal functionalism can be distinguished which represent variations on the theme of social engineering. The legal "reactivists" hold that law answers to social needs or interests and, consequently, emphasize law reform as the adaptation of the legal system to the changing socio-economic environment. Typically, they focus on "developed legal systems." See, eg. K. ZWEIGERT & H. KOTz, supra note 1, at 27-3 1; 0. KAHN-FREUND, COMPARATIVE LAW AS AN ACADEMIC SUBJECT (1965). The "activists" stress the leading role of law in bringing about social change; they try to use law to change society. The "Law and Development Movement" epitomizes socio-legal activism. See, e.g. Merryman, Comparative Law andSocial Change:On the Origins, Style, Decline and Revival of the Law andDevelopment Movement. The "interdependentists" combine the active and reactive properties of law and call for tinkering-i.e. incremental legal reforms and social modernization through law. The most systematic version of functionalist comparison, from which this summary is drawn, hias been worked out by Zweigerr. See K. ZWEIGERT & H. K6Tz, sepra note 1, at 1-41. They developed the functionalist paradigm with

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In general, the functionalist's comparative activity begins with a question or a feeling, such as a feeling of dissatisfaction with, say, the way product liability is regulated in the domestic legal system. Comparison is then spurred on by the intuition that other legal systems may have produced something better. Functionality becomes the pivotal methodological principle determining the choice of laws to compare, the scope of the undertaking, the creation of a system of comparative law, and the evaluation of the findings. How to identify crosscultural legal solutions that serve comparable functions is, of course, difficult.

In order to be able to compare, the functionalist has to assay either what "the law" is or what "the same function" could be. A minimal requirement of a strictly functionalist analysis would be an acknowledgement of this dilemma and then experimentation with a variety of possible cultural means involved in the resolution of particular social conflicts io different societies. Only then could hypothetical statements be made about "the law" or "legal system" and about "the same function." Comparative functionalists tend to disregard the basic problem of their theoretical strategy and typically offer two pseudo-solu- tions. The first is an a priori notion of the "legal system" and the second is an assumption about the "essence" of what law is all about: "The proposition rests on what every comparatist learns, namely that the legal system of every society faces essentially the same problems, and solves these problems by quite different means though very often with similar results.""' This answer reveals the first transcendental moment of functionalism-the first move from a puzzling and confused reality into a neat and well packaged theoretical framework for understanding. The sameness of the problems produces the relative sameness of results-whatever the legal means may look like. And if the same function cannot be identified, a similar function will do. Grand similarities and not differences in detail are what the functionalist is out for. 82 Such synthetic vision is helped by the presumption that all practical results are similar:

As a working rule this is very useful, and useful in two ways. At the outset of a comparative study it serves as a heuristic princi- ple-it tells us where to look in the law and legal life of the foreign legal system in order to discover similarities and substitutes. And at the end of the study the same presumption acts as a means of checking our results: the comparatist can rest content

regard to the "Legal Families of the World," id. at 57-380, and applied it to contracts, unjustified enrichment, and torts. For a critique see 3 L. CONSTANTINESCO, rupra note 1, at iii, 54-68.

81. See K. ZWEIGERT & H. KOTz, supra note 1, at 25.

if his researches through all the relevant material lead to the conclusion that the systems he has compared reach the same or similar practical results, but if he finds that there are great differences or indeed diametrically opposite results, he should be put on notice and go back to check again whether the terms in which he posed his original question were indeed purely functional, and whether he has spread the net of his researches quite wide enough. 83

To put this presumption of similarity to work, all fundamental differences, say, between antagonistic legal systems, have to be excluded. Comparison is considered useful only with regard to laws that fulfill the same function. One might argue that this restriction on the scope of comparison is commonsensical if not logical, for one can only compare what is comparable. Yet this argument presupposes knowledge of what is same and different. Besides, the comparative funtionalist implicitly reduces her claim that the functionalist method can grasp all possibilities that occur in the real world. So we may conclude that she is basically out for the variations on a theme that are organized in terms of the categories and interpretive patterns she has borrowed from the domestic legal system.

Furthermore, those areas of law have to be singled out which are "marked by strong political or moral views and values." Thus the functionalist reduces the law to a formal technique of conflict resolution, stripping it of its political and moral underpinnings, and tries to cope with the problem that social and economic conditions, apparently similar in relevant respects, have actually produced radically different legal solutions. The comparative functionalist may celebrate this analytical operation as a necessary reduction of complexity. Yet, it may be interpreted as a further vain attempt to escape the implications of the functionalist creed. Whether she believes that law is determined by social problems or social development is (co-)deter- mined by law or whether law and society are interdependent entities, the functionalist has to account for the basic difficulty that apparently not all legal norms and doctrines are functionally related to social life because they run counter to any conceivable need or interest, or because they do not make a difference in social life. So the functionalist may either revise her theory or exclude the non-technical properties of law or reduce the explanatory claims of her theory. While in comparative law, scholars tend to embrace the second strategy, sociological functionalism "goes abstract" by adding two new categories-the "dys-

83. id. at 31. See Zweigert, Die "PraesumptioSiniitudinis" als Grundsazvernmtung rechisvergleichender Methode, in INCHIESTE Di DIRITTO COMPARATO-SCOPI E METOI Di DIRITTO

COMPARATO 735 (M. Rotondi ed. 1973); Lepaulle, supra note 20, at 852.

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functional" and the "socially trivial," dangerously supplementing the overall "functional." The danger comes with the non-functionalist's intuition that functional (let alone causal) relations between social problems and legal solutions are underdetermined or rather randomly interdependent. The functionalist's move to higher and higher levels of abstraction suggests the emptiness of her theoretical conception.

Like her historical forebears (and like most sociological functionalists), the comparative legal functionalist entertains an evolutionary vision of legal development. Law progressively adapts to social needs or interests, or develops through interacting with its environment. The "modernizers" even grant law an activist role. It is understood to be a crucial instrument in bringing about social change. Both versions of evolutionism-legal development in reaction to social change and social modernization through law-are questionable. Multiple and cross-cutting processes contributing to the change of legal norms, doctrines ind institutions are dissected and formalized only to be translated into one master process of evolution, which betrays a lack of the very quality functionalism purports to promote--differentiation.

Typically, the evolutionist perspective focuses on the actions and decisions of certain specialized agencies (courts, legislatures, etc.), negating or marginalizing the effects of legal forms and ideas in the realm of consciousness as ideologies and rituals. By stressing the production of "solutions" through legal regulations the functionalist dismisses as irrelevant or does not even recognize that law also produces and stocks interpretive patterns and visions of life which shape people's ways of organizing social experience, giving it meaning, qualifying it as normal and just or as deviant and unjust. That is why it is implausible to situate law vis- -vis society and to separate the legal form from its social contents. The "interests" of social life that make demands upon the agencies and officials law are "not self-constituting pre-legal entities but owe important aspects of their identities, traits, organizational forms and sometimes their very existence to their legal constitution."84 The functionalist notion of law as a regulatory technique or as a bundle of techniques for the solution of social problems can also be criticized as legocentric. There is nothing outside legal texts and insitutions for functionalists. Law as consciousness or cluster of beliefs is beyond a perspective that focuses on the instrumental efficiency of legal regulations. Functionalism has no eye and no sensitivity for what is not formalized and not regulated under a given legal regime. What started out as a fascinating hypothetical experiment has turned into a rather dry affirmation of legal formalism.

84. Gordon, supra note 78.

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