ESSAYS IN HONOUR
OF
MICHAEL BOGDAN
OFFPRINT
Juristförlaget i Lund
2013
Kjell Å Modéer
Time and Space in Comparative Legal
Science: Twins or Aliens?
Comparative Law and Legal History from
Modern to Late Modern Discourses
1. Prologue
When Michael and I wrote our dissertations at the Lund Law Faculty in the
beginning of the 1970’s, comparative law and legal history had quite different
status and positions within the Swedish legal community. Both of them were
marginal disciplines within the legal curriculum due to the modernity of the
monolith Swedish nation-state. Comparative private law was a rising star.
Legal history, however, was more regarded as a burned-out star, very close to
disappearing behind the horizon. Why this was so is a long narrative which
cannot be told within the limited space of a contribution to Michael’s Festschrift. Let me, however, sketch the background. Around 1970, the icons of
post-war European comparative law – René David, Konrad Zweigert & Hein
Kötz and Léontin Jean Constantinesco – had all contributed important works
within comparative law. They also inspired the Swedish legal community. The
majority of post-war Swedish legal historians, however, were either lawyers
(but historians or/and theologians) or right-wing parliamentarians. Already
for this reason they were regarded as outsiders in the legal paradigm of their
time. Pragmatically, the international perspective had become more important
when the European Communities established their institutions – and in 1973
Denmark became a member of the Communities. So Michael jumped on a
high-speed train rolling towards an expanding future, while I was directed to
take the steam-train, which in addition seemed to lack coal for its continuing
journey. This metaphor describing the differences between two meta-disciplines in space and time within the law should have been regarded as an
amusing witticism by the majority of the Lund law faculty in the mid-1970’s.
In retrospect I have no reason to be bitter. I have forgiven – but not forgotten.
Legal historians in general have always literally been steam train enthusiasts.
Since then, within the Swedish legal community, the metaphorical steam train
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has been continuously remodelled into a late-modern vehicle, equivalent to
that of the “comparative law train”.
Swedish legal modernity in the 1970’s was much more interested in a visionary future than in an obscure and sinister past. The deputy minister in the
Department of Justice during Olof Palme’s social-democratic government was
Carl Lidbom (1926–2004). He was a distinctly reform-orientated modernist,
and was the instrumental in important reform legislation directed towards the
ordinary citizen within the Swedish welfare-state. Several legal fields – labour
law, family law, consumer law and tenant law – were all reformed during this
period of time. In Lund, international private law also became an important
discipline when Lennart Pålsson (1933–2011) was appointed professor in international law in 1969 and started to construct an intellectual cluster, which
for decades was called “Lennart Pålsson’s Empire” (with a distinct reference to
hierarchic German professorship). Within this evolutionary empire, Michael
rapidly advanced to be one of the dukes.
To a great extent, though, Swedish legal history, in the post-war period had
lost its grip on the real world. Medieval legal history was still a dominant field
of research – far away from the “real life”-orientated and sociologically based
research related to modern history developed by Willard Hurst at Madison,
Wisconsin and his colleagues in the United States in the 1950s and 1960s. Legal
history became a well-established discipline, first within the Law and Society
(sociology of law) movement and later the Marxist-inspired Critical Legal Studies
movement. In Europe the renaissance for legal history research arrived later
than in the United States, and here it got a special twist within the so-called
critical schools and postmodern deconstructivism among European scholars.
To legal historians, transparency within law has always been a part of the
paradigm. The reception of a common, learned European law, ius commune,
into national, originally customary law-based legal systems, ius patrium, became
an important research field in the aftermath of World War II, and especially in
the renaissance of natural law in Western Europe in the late 1940s. The Max
Planck Institute for European Legal History in Frankfurt/Main, founded in
1964 with Helmut Coing as director, became an important centre for research
in this field. The impressive handbook on European legal historical sources
and literature within private law 1 – still a project in progress – became a parallel within legal history to the work by Konrad Zweigert and Hein Kötz in
Helmut Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatsrechtsgeschichte, Veröffentlichung des Max-Planck-Instituts für europäische Rechtsgeschichte, Vol. 1-3, C. H.
Beck Verlag: München 1973-1988.
1
Time and Space in Comparative Legal Science
339
comparative private law at the Max Planck Institute for International Private
Law in Hamburg.2
Interestingly enough, comparative law in the United States developed to
a great extent due to representatives of German law among the émigrés who
had to flee Nazi Germany after 1933.3 As one of their students remarked: “It
is clear that the comparative law establishment in the United States is dominated by the intellectual traditions and peopled by the students of the expatriates.”4 Friedrich Kessler at Yale, Stefan Riesenfeld and Albert Ehrenzweig
(the German Twins) at UC Berkeley, and Max Rheinstein at the University
of Chicago were some of the important persons who established comparative
law in law curricula and fostered a new generation within comparative law
in the United States.
When a group of younger scholars from the Lund Law faculty were sponsored
in the early 1980s with grants from the American Council of Learned Societies
and got the opportunity to spend a year at an American law school, something
important happened. All of them embraced the break from the national (I
would even say the local!) scene and developed a more open and concerned
attitude to alternative legal systems, legal theories – and comparative law.
The dramatic geopolitical shift in Europe in 1989-90 was the beginning of
the paradigm shift in legal science into what we today call the late modernity.
The Berlin Wall fell in November 1989, the Soviet Union was dissolved and the
European Single Act was introduced by December 31, 1992. The Maastricht
Treaty of 1992 spoke not only of merging institutions and legal systems, but
also of the respect for cultural diversity.
The critical perspectives on law became increasingly important and challenged the positivist perspective on law dominating twentieth-century legal
science. In my view, this challenge was a positive one. It resulted not only in a
renaissance for legal science, but also very dynamic discourses on contextual
and interdisciplinary theories and methods related to comparative law and
legal history. Here ends my introductory survey, and now I will concentrate on
how current late-modern discourses have created a new relationship between
comparisons in space (comparative law) and comparisons in time (legal history).
Konrad Zweigert & Hein Kötz, Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts,
Vol. 1-2, Mohr: Tübingen 1969-71.
3
Kjell Å Modéer, “Young Men Go West!, Nordiska jurister, deras studieresor till efterkrigstidens
U.S.A. och den rättskultur de mötte”, Boel Flodgren et al (eds.), Vänbok till Axel Adlercreutz, Juristförlaget i Lund: Lund 2007, 311 ff.
4
John Henry Merryman, in Pierre Legrand, “John Henry Merryman and Comparative Legal
Studies: A Dialogue”, 47 The American Journal of Comparative Law , Nr 1 (1999), 9.
2
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2. The creation of a synthesis
The ongoing discourses reckoning with the past have opened up for new perspectives on the legal modernity of the twentieth century. Today the explanations and
narratives about how emphasis of pragmatic positive law (Positivierung) within
private law evolved, and neglected international as well as historical perspectives
have been commonplace. In a recent article, Stefan Vogenauer describes how the
historical perspectives within comparative law around 1900 were increasingly
minimalised. Édouard Lambert (1866–1947) and his pragmatic school took over
the scene. The positive law-orientated perspectives dominated.5 Legal dogmatic
and rule orientation dominated not only in French and German comparative
law; it was also this perspective that the well-educated (and gebildeten) German
law émigrés brought to the United States during the Third Reich.
The uncritical and ignorant development projects within law in the United
States after World War II were very similar to a legal colonialism, and they received heavy criticism.6 Since the late 1960’s Stanford School of Law has opened
up for new perspectives, especially from two of its law professors, Lawrence
M Friedman and John Henry Merryman. Friedman published a law review
article in 1969 called “On Legal Development”, in which he heavily criticised
the modernisation of law formulated within law and development projects,
which aimed to modernise (read: Americanise) the law in the developing
countries. It was in this article Friedman used this often-quoted metaphor:
“[y]et no one could modernize a country by changing its clothes”.7 And it was
in the same article Friedman introduced the concept of legal culture, which
has been so important for the contextualisation of legal history in increasingly
transparent and heterogeneous nation-states.8 When legal historians invented
new constructs with the help of the concept of culture, comparative lawyers
constructed meta-systematic entities in legal families and Rechtskreisen.
Both concepts lacked distinct legal formulas and created huge discourses.
The concept of legal culture has been criticised for vagueness and the concept
of legal families has been decried for being geopolitically outdated.9
Stefan Vogenauer, “Rechtsgeschichte und Rechtsvergleichung um 1900: Die Geschichte einer
anderen ‘Emanzipation durch Auseinanderdenken’”, 76 Rabels Zeitschrift (2012), 1122 ff.
6
Tom Ginsburg, “Lawrence M. Friedman’s Comparative Law”, in: Robert W. Gordon & Morton
J. Horwitz (eds.), Law, Society, and History. Themes in the Sociology and Legal History of Lawrence M.
Friedman, Cambridge University Press: New York 2011, 52 ff.
7
Lawrence M Friedman, “On Legal Development”, 24 Rutgers Law Review (1969), 22.
8
David Nelken & Johannes Feest (eds.), Adapting Legal Cultures, Hart Publishing: Oxford 2001.
9
To this discourse: Hein Kötz: “Abschied von der Rechtskreislehre?”, Zeitschrift für europäische
Privatrecht 1998, 493 ff; Jaakko Husa, “Classification of Legal Families Today. Is it time for a memorial
hymn?”, 56 Revue internationale de droit comparé (2004), 11 ff.
5
Time and Space in Comparative Legal Science
341
The critical legal studies movement and postmodernism meant the breakup
from legal realism and functional comparative law. It was regarded as “newstream” and as a negligible for mainstream positivistic attitudes within the
legal community. The Critical Legal Studies Symposium at Stanford in 1984
demonstrated the peak of this movement in the U.S.10
But it is impossible to ignore the movement’s importance for contemporary
US legal science. Even if the “Crits” and their ideology today have faded out,
the movement remains commonplace to some degree. As one of my American
colleagues recently stated, “To some extent we are all crits today”.
Initially “newstream”, the critical schools, have become increasingly mainstream in the American legal community. In Europe, Pierre Legrand was
regarded for a long time as the rebel within his epistemological field of research,
comparative legal cultures.11
In an article in honour of his colleague John Merryman, the comparativist
and legal historian Lawrence Friedman identifies “the ills of comparative law
as well as its strengths”.12 In this article, Friedman characterises comparative
law “as being preoccupied with the problems of translation across cultures and
the corresponding search for functional equivalents.” Comparative law from
this position “has the virtues and the faults of a dictionary. A dictionary is
an essential reference tool, but nobody can learn a foreign language, or grasp
its essential genius from a dictionary alone … The vital core of a language is
not to be found in the dictionary, but in the mouths of real people, using a
language in their daily lives.” You can’t understand a legal system just by using
dictionary tools, Friedman argues: “A living body of law is not a collection of
doctrines, rules, terms and phrases. It is not a dictionary but a culture, and it
has to be approached as such.”13
John Merryman took a similar position when he was interviewed by Pierre
Legrand in 1997. Like Friedman, Merryman argued that comparative law
has done a good job of generating information on materials that facilitate
cross-border transactions. Nevertheless, Merryman bluntly criticised the
pure dogmatic and “exclusively rule-centered” comparative law, “dominat-
36 Stanford Law Review (no.s 1 & 2, 1984).
Legrand’s provocative article “European Legal Systems Are not Converging”, 45 International &
Comparative Law Quarterly (1996), 52 ff.
12
Tom Ginsburg, Friedman’s Comparative Law (2011), 56.
13
Lawrence M Friedman, “Some Thoughts on Comparative Legal Culture, in: D.S Clark (ed.),
Comparative and Private International Law. Essays in honor of John Henry Merryman on his Seventieth Birthday”, Dunker and Humblot: Berlin 1990, 50.
10
11
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Kjell Å Modéer
ed by European legal theory”.14 In Legrand’s interview he returned to his
statement in that respect: “It seems so obvious that comparison based on
statements of rules of law, which is the dominant mode of comparative law
scholarship, is a relatively trivial kind of enterprise.”15 With Friedman’s and
Merryman’s contextual and culture-based scientific approach and argumentation, we cannot only understand but also respect those blunt statements.
Of course they met criticism from European comparative lawyers.16 Merryman’s statement, however, must be read in its scientific and American
context. He continued, saying that of course there are “professional activities
for which rule comparison is directly useful, but scholarship is supposed to
have larger concerns. To the extent that one engages in serious scholarship
in comparative law, one soon exhausts whatever value there may be in rule
comparison.”
Friedman’s contextual and cultural perspectives and Legrand’s dialogue
with Merryman has given a lot of stimuli to the ongoing discourses within
newstream comparative law. By emphasising different texts and the context-orientated paradigm of cognitive structures, both of dialogues have also
brought legal history in focus.
When the deep structures of the law became a topic of the day, it was
regarded as newstream. International public law offers good examples of
how history not only gives renewed perspectives on legal problems, but also
a better understanding of and solutions to current legal questions.17
3. Comparative law – A historical turn?
The new millennium also brought a historical turn within legal science. In
1999 on-going discourses were visible in the public environment. At the American Association of Law Schools annual meeting in New Orleans that year,
14
John Merryman, “Comparative Law and Scientific Explanation”, in: John N Hazard & Wenceslaw
J Wagner (eds.) Law in the United States of America in Social and Technological Revolution. Brussels,
Belgium 1974, 88.
15
Legrand, John Henry Merryman and Comparative Legal Studies: A Dialogue, a.a. 4.
16
Michael Bogdan, “On the Value and Method of Rule-Comparison in Comparative Law”. Heinz
Peter Mansel et.al, Festschrift für Erik Jayme, vol. 2, Sellier. European Law Publishers: München
2004, 1233 ff. Michael Bogdan, Concise Introduction to Comparative Law, Europa Law Publishing:
Groningen 2013, 46.
17
Martti Koskenniemi, “The History of International Law today”, Rechtsgeschichte: Zeitschrift des
Max-Planck-Instituts für europäische Rechtsgeschichte 4 (2004), 61 ff. - Kjell Å Modéer, “Transparens
och djupstruktur – Folkrätten i rättshistorien“, in: Maarit Jänterä Jareborg & Mats Kumlien (eds.),
Rätten och rättsfamiljer i ett föränderligt samhälle – rättshistoriskt och komparativt, Iustus Förlag: Uppsala
2011, 305 ff.
Time and Space in Comparative Legal Science
343
comparative lawyers and legal historians discussed the question of whether
comparative law was to take “A Historical Turn?”18
Later that same year, the same question was raised at the German Biannual
Legal Historians’ Meeting, 32. Deutscher Rechtshistorikertag, in Regensburg
September 1999, where one session was devoted to comparative law and
legal history. Six legal historians and comparative lawyers gave papers and
the discussions were very stimulating.19 Mathias Reimann was one of the
speakers. He sketched the challenges and possibilities and the opportunity
to reach a mutual conception. He also foresaw the synthesis: comparative
legal history.20
Since 1999, a lot of water has passed under the bridge. The proposal of merging
comparative law with comparative legal history has been frequently discussed.
The discourses have identified that this is not a question of comparative law
or legal history. The inevitable strategy is the combination: “As well as”. One
of the most eminent representatives of this strategy (comparative legal history)
has been Reinhard Zimmermann in Hamburg. In his Clarendon lectures at
Oxford 1999, he used the metaphor “a legal tapestry of many different shades
and nuances” to describe the historical past of the “mixed legal systems”, evident
not only in South Africa and Scotland, but also in continental legal systems.
“They all constitute a mixture of many different elements: Roman law, indigenous customary law, Canon law, mercantile custom, and Natural law theory,
to name the most important ones in the history of the law of obligations.”21
When, in his plenary lecture at the 29. Deutscher Rechtshistorikertag in Köln,
Zimmermann emphasised the medieval ius commune with contemporary
trends within European law, his comparisons were met with great suspicion
and reluctance from many of his colleagues.22 Today the core of his message
in that lecture (comparison in time) must be regarded as commonplace within
18
James Q Whitman, William Bragg Ewald, David J Berger, James Gordley, “Comparative law :
an historical turn?” [Annual Meeting Association of American Law Schools], Recorded Resources
Comp.: Millersville MD 1999.
19
Reinhard Zimmermann, “Einführung: Rechtsgeschichte, Rechtsvergleichung, Privatrechtsdogmatik”, Zeitschrift für Europäisches Privatrecht Nr 3/1999, 494 f.
20
Mathias Reimann, “Rechtsvergleichung und Rechtsgeschichte im Dialog”, Zeitschrift für Europäisches
Privatrecht Nr 3/1999, 496 ff.
21
Reinhard Zimmermann, Roman Law, Contemporary Law, European Law: The Civilian Tradition
Today, Oxford University Press; Oxford 2001, 158 f.
22
Bernhard Diestelkamp, “Jus Commune – Rechtsgeschichte als Argument in der Unifizierung
von Europäisches Recht: Ein deutsches Bericht”, in: Kjell Å Modéer (ed.), Rättshistoria i förändring.
Olinska stiftelsen 50 år, Rättshistoriska studier Vol. 22, Lund 2003, 205 ff.
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Kjell Å Modéer
comparative legal history.23 The new comparative perspectives were met with
critical points of view. The borders between the disciplines were deep and
related to historical cognitive structures.
By this point, the historical turn had also popped up within international
law. Martti Koskenniemi’s work The Gentle Civilizer of Nations: The Rise and
Fall of International Law 1870 – 1960 (2001) started up a new discourse within
this discipline, also representing “a historical turn, where memory plays an
essential role in its development”.24
Legal historians like Matthias Reimann and Reinhard Zimmermann are on
the same track. The Oxford Handbook of Comparative Law they edited some
years ago demonstrates the broadness, complexity and diversity within the field
of comparative law.25 I take them as examples of legal scholars who have brought
global and comparative law into the field of legal history. Today a comparative
legal history focusing on diversity and contextual differences is in focus for an
impressive majority of younger legal historians all over the globe. The second
Biannual Meeting of the European Society of Comparative Legal History26 in
Amsterdam in July 2012 testifies to my statement in that respect. Some 120
representatives from about 30 countries representing postmodern as well as
late-modern legal history were all very interested in comparative perspectives,
and not only comparisons in space but also in time. The long-term perspectives,
the longue durée, the deep structures of law, are also frequently observed and
studied. The comparison in time is frequent, as well as the concept of legal
tradition – the orally form of transferred communication.
4. Mixed legal systems, legal plurality and legal hybridity
The European constructs of organising national legal systems into legal families
have been heavily criticised. The late-modern concept of the state is much more
complex and heterogeneous than the modern nation-state. Postcolonial studies
identified mixed legal systems – a concept well elaborated upon by (among
23
Reinhard Zimmermann, “Heard Melodies are Sweet, but those unheard are sweeter…”: Conditio
tacita, implied condition und die Fortbildung des Europäischen Vertragsrecht. 193 Archiv für die
zivilistische Praxis (1993), 122 ff. – Cf. Kjell Å Modéer, “Der Verlierer als Sieger? Rechtsgeschichte und
Rechtsvergleichung in einer neuen Schulstreit”, in: Kjell.Å Modéer (ed.), Europäische Rechtsgeschichte
und europäische Integration. Festskrift till Heinz Mohnhaupt / Rättshistoriska skrifter Bd 4, Stockholm
2002, 93 ff.
24
George Rodrigo Bandeira Galindo, “Martti Koskenniemi and the Historiographical Turn in
International Law”, 16 The European Journal of International Law, Nr 3 (2005), 539 ff.
25
Matthias Reimann & Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law,
Oxford Uniersity Press: Oxford 2006.
26
esclh.blogspot.com
Time and Space in Comparative Legal Science
345
others) Reinhard Zimmermann and his networks. These postcolonial legal
studies identified quite new perspectives with help of metaphors: “the Frontier,
the Baroque and the South”.28 They gave the studies in comparative law new
dimensions. Or, as Werner Menski put it: “[T]he Euro-centric perspective that
privileged the state (lego-centrism) and territoriality (nationalist concerns) is
not only quite parochial, but an idiom based on lost memory which does not
lead towards a globally acceptable method of understanding law and its many
pluralities, mixed manifestations, and commonalities.”29
Today “mixity” is “the rule”.30 But the concept of mixed legal systems is, as
Patrick Glenn has suggested, “very recent”. For two centuries, nationalism,
monism, centralism, and positivism characterised the systematisation of the
laws.31
H. Patrick Glenn is one of the crusaders for the historical turn: turning
comparative law into comparative legal history. For Glenn, comparative
law and legal history comprise a normative unity. When he speaks of “legal
traditions” instead of “legal systems”, his focus is the “historically dynamic
nature of legal orders” (Donlan). Glenn’s legal history is characterised by its
critique of legal nationalism, centralism and positivism. His now-classic book
from 2000, Legal Traditions of the World, initiated intense and very fruitful
discourses on tradition, religion, and other non-state norms. In 2010 it was
published in its fourth edition! 32
The importance of moving beyond Euro-centric and state-centred concepts
in an age of globalisation became evident in postcolonial studies, and this move
is now also emphasised within comparative law: 33
“A reasonable inclusive cosmopolitan discipline of law needs to encompass
all levels of relations and of ordering, relations between these levels, and all
27
27
Reinhard Zimmermann, Kenneth Reid, & Daniel Visser (eds.), Mixed Legal Systems in Comparative
Perspective: Property and Obligations in Scotland and South Africa, Oxford University Press: Oxford
2005.
28
Boaventura de Sousa Santos (1995), “Three Metaphors for a New Conception of Law: The
Frontier, the Baroque, and the South”, 29 Law and Society Review (1995), 4, 569 ff.
29
Werner Menski, “Beyond Europe”, in E. Örücü & D. Nelken (eds.), Comparative law: A handbook,
Hart Publishing: Oxford 2007, 198.
30
Jacques du Plessis, “Comparative Law and the Study of Mixed Legal Systems”, in: Mathias Reimann
& Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law, Oxford University Press:
Oxford 2006, 481.
31
H. Patrick Glenn, “Persuasive authority”, 32 McGill Law Journal (1987), 271; Seán Patrick Donlan,
“Remembering: Legal Hybridity and Legal History”, In: 2 Comparative Law Review (2011), 29.
32
H. Patrick Glenn, Legal Traditions of the World: Sustainable diversity in Law, Oxford University
Press: Oxford 4th edition, 2010.
33
William Twining, “Globalization and comparative law”, in E. Örücü & D. Nelken, Comparative
law: A handbook, 2007, 71.
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important forms of law including suprastate (e.g. international, regional) and
non-state law (e.g. religious, transnational, chthonic law i.e. tradition/custom)
and various forms of ‘soft law’”.
Legal pluralism34 and legal polycentricity35 have dominated theoretical legal
discourses for the last twenty years, but within comparative law those concepts
have not yet received the attention they deserve.36 Early on, however, legal
historians identified the claims for an extended form of (normative) pluralism,
also including e.g. traditions, customs and other normative orders. “Acknowledging a far more subtle and complex legal hybridity creates problems for any
neat division of legal traditions into discrete legal families; the incorporation
of normative hybridity into comparative analysis is still more difficult.”37
Within these discourses on globalisation and non-state normative structures
and traditions, the construct of legal families is totally obsolete and outdated.38
5. Concluding remarks
“It is no exaggeration to state that in the last 20 years we have seen a true
‘comparative law explosion’: as a result of increasing globalization and Europeanization, comparative law has become more and more important.” 39 Jan
Smits’ statement (2006) is certainly true. As this contribution to Michael
demonstrates, legal history is a part of this success story.
Today comparative law and history are two disciplines which are increasingly
merging. James Gordley has underlined the two disciplines’ “need for mutual
support”.40 The twenty-first century has brought back the concept of legal
hybridity, which was common before the modernity of the twentieth century.
Comparative law and legal history had to develop as separate disciplines as
a result of the contexts in which they emerged within modern legal science.
Modern comparative law formed by Lambert and his contemporaries one
34
Franz von Benda-Beckmann, “Who’s afraid of legal pluralism?”, in: 42 Journal of Legal Pluralism
(2002), 40.
35
Hanne Petersen & Henrik Zahle (eds.), Legal Polycentricity: Consequences of Pluralism in Law,
Dartmouth: Aldershot 1995.
36
Seán Patrick Donlan, Remembering (2011), 8.
37
Seán Patrick Donlan, Remembering (2011), 8
38
Jaakko Husa, “Legal families”, in: Jan M. Smits, Elgar Encyclopedia of Comparative Law, Edward
Elgar Publishing: Cheltenham 2006. – Esin Örücü, “A general view of ‘legal families’ and of ‘mixing
systems’, in: David Nelken & Esin Örücü, Comparative law: A Handbook, Hart Publishing: Oxford
2007, 177.
39
Jan M. Smits, Preface, in Jan M. Smits, Elgar Encyclopedia of Comparative Law, Edward Elgar
Publishing: Cheltenham 2006, xvii.
40
James Gordley, “Comparative law and legal history”, in: Mattias Reimann & Reinhard Zimmermann, Handbook in Comparative Law, Cambridge University Press, 768 ff.
Time and Space in Comparative Legal Science
347
century ago forgot the “legal hybridity and legal history”, to speak in the terms
of Seán Patrick Donlan. Late-modern legal science, however, is constructed in
much more complex contexts. The historical turn and the transparent borders
between national legal systems in a transnational and even global context have
not only given new perspectives on comparative law; they have also made it
more complex and theoretical. It is no surprise that ordinary comparative
law of the post-war era has been described as “trivial”. When Friedman and
Merryman formulated contextual comparative law, they were regarded as early
newstream missionaries. Today their positions are regarded as mainstream.
Thanks, Michael, for pleasant, collegial friendship throughout the decades!
As this article demonstrates, comparative law and comparative legal history
are spring from the same branch of the tree. This “remembering” of an old
relationship between our disciplines has made them much more interesting
and stimulating. For comparative lawyers, legal history has turned from an
alien into an unexpected twin! 41 The Schulenstreit between comparative lawyers
and legal historians is over! 42 The discourses within the family, however, have
not been less complex in recent times – quite the opposite! So: All the best for
the future! Comparativists and legal historians have much more to offer in an
engaged, expanded interdisciplinary dialogue.43
Today we are on the same train, Michael, and even related! I’m sure we have
a lot to contribute to our common family!
41
Hein Kötz, “Was erwartet die Rechtsvergleichung von der Rechtsgeschichte”, Juristenzeitung
(1992), 20 ff. “Critical to the metaphor ‘twins’”: Dieter Simon, Zwillingschwestern und Stammesbrüder, Rechtshistorisches Journal 1992, 574 f.
42
Kjell Å Modéer, “Der Verlierer als Sieger? Rechtsgeschichte und Rechtsvergleichung – ein neuer
Schulstreit”, in: Kjell Å Modéer (ed.), Europäische Rechtsgeschichte und europäische Integration, Rättshistoriska skrifter 4, Stockholm 2002, 93 ff.
43
Donlan, Remembering (2011), 35.