Review of Comparative Law

Introduction

This article reviews the field of comparative law, which includes many varieties, from the vantage of sociolegal studies. Debates among comparatists appear sharp, even combative. In an effort to quell doubts and to establish their field’s distinctiveness, a number of comparatists essentially urge their fellows to abandon some varieties of comparative law and to unite around particular approaches. Such dogmatism is startling in a field purportedly founded on an interest in pluralism and difference. By contrast, this article’s animating view is that ambitions to impose a single approach or to ‘win’ methodological ‘debates’ are misguided. Comparative law’s eclecticism is unavoidable – perhaps happily so. As Fletcher (1998: 691) observes, however, not all writing about foreign law is ‘theoretical or interesting’. This article contends that within comparative law’s eclecticism, the richest insights and greatest potential for sociolegal scholars arise from the field’s kinship with other stripes of critical legal scholarship and with cognate disciplines. These insights emerge from discussions of method and from varieties that prioritize understanding law in relation to its surrounding society and understanding law generally.

A caveat before proceeding. Comparative journals, handbooks, collections and Festschrifts abound and scholars have repeatedly mapped the field. It would be rash, then, to aim for exhaustiveness. To foreground a glaring incompleteness, this review focuses on literature published in English. The goal is not to translate for the reader data from exotic, faraway lands – or from nearer French-speaking jurisdictions. While space constraints imposed painful exclusions, a handful of authors appear more than once, giving a sense of scholarly conversations. The hope is that this survey, despite its limitations, will prove instructive and perhaps provocative, primarily to sociolegal readers and secondarily to comparatists.

Many Comparative Laws

Unsurprisingly, the field of comparative law is varied and critical scholars have divided it variably. In a much-cited critique, Frankenberg (1985: 427−440) identifies five dominant paradigms of scholarship: encyclopaedic comparison, constructive comparison, comparative historical reconstruction, juxtaposition-plus and comparative functionalism. His later, snappier effort (befitting the Twitter era) distinguishes Cognitive Control ‘Country and Western’-Style, Universal Dreams Inc., Sentimental Journey and Scepticism (Frankenberg, 2014: 233−243). Mixing method and subject matter, Riles (1999: 225) distinguishes ‘traditional’ comparative lawyers, specialists in bodies of non-Western law such as Japanese law and (at the time) ‘younger scholars working under the banner of so-called “new approaches”’.

For its part, this article separates activities of comparative law and practitioners’ understandings of those activities. It identifies 13 varieties, numbered from CL1:

As an advocate, invoking foreign sources in a brief or oral argument: ‘And now a supplementary argument from comparative law…’

This list is imperfect. It moves across actors, aims, methods and sensibilities. Comparatist colleagues would undoubtedly add distinctions, eliminate others or do both. The list reflects the jurist’s multiple, often overlapping, stances as advocate, judge, lawmaker and scholar. While it is perilous to simplify other disciplines, scholars of comparative literature and comparative religion appear to pursue fewer activities. Such comparatists are less likely than comparative lawyers to promote reform in their domains. By design, the list nowhere uses the verb ‘compare’. That term’s meaning as unifier of activities labelled as comparative law is muddy. For example, it remains unclear how ‘comparison’ relates to ‘description, abstraction, classification, induction, and generalisation’ (Twining, 2000b: 191 (footnote omitted); on ‘comparing’, see Glenn, 2007: 91−92).

Perhaps mercifully, this article will not systematically address all these varieties, but this list may help readers less familiar with the field to situate themselves. Often practitioners refer to comparative law generally, but mean less than all varieties. For example, when they oppose ‘comparative law’, isolationist American constitutionalists set their sights on CL2. Similarly, some prominent critiques of comparative law target CL6 or CL8 (and, arguably, those activities’ unsubtlest instances). Having exposed the panoply, this article can develop its claim that the insights likeliest to appeal to those aligned with this journal’s critical and theoretically grounded aims emerge from work partaking of CL11 (law and its social context), CL12 (law as intellectual practice) and CL13 (critical comparative method). This rough taxonomy and overview of the range of activities lead to the question of comparative law’s health − inquiry that uncovers a widespread dissatisfaction and yearning for better days.

Malaise and Ambitions

A striking feature of the literature is the consensus that comparative law suffers a long-standing ‘malaise’ (Ewald, 1995: 1891). Indeed, the ‘so-called “malaise of comparative law” has become a catchphrase’ (Smith, 2010: 332 (footnote collecting sources omitted)). Pointing to the standard script, an American comparatist observes that ‘[a] certain amount of hand-wringing is thus de rigueur in any piece of comparative law scholarship that wants to be viewed as part of the solution rather than part of the problem’ (Ruskola, 2002: 180). Significantly, the perception of malaise fluctuates across the identified varieties. It is strongest among those who study ideas’ movement (CL9), laws on their own terms (CL11), law as intellectual practice (CL12) and comparative method (CL13) − painfully so in the last case. Indeed, the blithe unselfconsciousness with which practitioners of, say, CL4 (law reform derived from comparison), CL7 (comparatively informed advocacy) and especially CL6 (discernment of commonalities across laws and unification) go about their business aggravates other comparatists’ malaise.

The complaint is essentially that comparative law has ‘failed to mature into an up-to-date, well-defined and coherent discipline’, one yielding insights of general interest beyond the multiplicity of individual studies (Reimann, 2002: 685; see also e.g. Valcke, 2004: 713−714, citing von Mehren, 1971). For some, the lack of disciplinary coherence displays itself in comparatists’ weak ‘sense of ultimately belonging to the same guild and of working towards similar goals’, relative to groups such as international lawyers and legal historians (Reimann, 2002: 687). Tackling matters of method that return below, the field’s leading scholars characterize comparative law as ‘superficial and unsystematic, dull and prone to error’ (Ewald, 1995: 1891). Riles (2001: 3 (footnote omitted)) remarks ‘a certain ubiquitous angst’ about comparative law’s identity vis-à-vis disciplines such as comparative politics, jurisprudence and the anthropology or sociology of law. The field stays too dominated by what Twining (2000a) wryly calls the ‘Country and Western tradition’, referring to the study of the positive law of Western capitalist nation states. Comparative law is also hobbled by its abiding ‘obsession with the common law-civil law dichotomy, and its preoccupation with private law rules and doctrines’ (Reimann, 2002: 685).

Happily, the malaise is not debilitating and many who diagnose it are immediately ready with high ambitions for their discipline and prescriptions for realizing them. Done better, their field would acquire ‘intellectual prominence’ and ‘academic recognition’ (Reimann, 2002: 685). Fletcher (1998: 700) would reorient the field so that it might ‘come into its own as a prestigious field of legal thought’. Valcke (2004: 740) voices the ambition for comparative law ‘to buck its instrumental destiny and blossom into a self-standing academic discipline, one that is distinct, in particular, from law in general and legal philosophy’. Reimann (2002: 695) prescribes three steps: establish a canon, agree on clearly defined goals and commit to long-term cooperation. The undisguised professional self-interest in such passages contrasts with the notion, voiced recently by a sociolegal scholar, that ‘our first commitment is not promoting the prestige or the theoretical rigour of our chosen disciplines or fields…but rather understanding the world we live in’ (Valverde, 2015: 27).

The sheer diversity of activities on the list above suggests, however, that subjecting them to a uniform cure is improbable. The list makes it possible to reframe calls to ‘buck’ comparative law’s ‘instrumental destiny’ as a hope for variations aimed at understanding (CL11 and CL12) to prevail over ones generating reform (CL4, CL5, CL6, CL7 and CL8). Indeed, in the guise of methodological criticisms, comparatists occasionally make what are essentially calls for some of their fellows to abandon their pursuits. That is, for some interlocutors, doing comparative law properly – ethically or intellectually respectably – precludes some activities. Thus, some scholars invested in the non-instrumental, understanding-oriented package of CL11, CL12 and CL13 view CL6 in the service of reform and unification as harmful, even violent − a menace to distinctive and precious forms of legal life (Legrand, 1996, 2006a). The perceived scholarly prestige of comparative law ‘for its own sake’ (Valcke, 2012: 25) is interesting in the light of the historically informed reading of comparative law as harnessed to ‘projects’, its uniqueness ‘resid[ing] in its applications to real problems in the world’ (Riles, 2001: 11). Comparatists’ intramural differences replay tensions endemic to law generally, with one foot in the university and another in practice and governance.

Ambitions to assert comparative law’s distinctness contrast with views of it as indistinct. A leading American comparatist suggests that ‘comparative legal analysis is just legal analysis’, since all analysis is ‘comparative at heart’ (Curran, 2006: 699 (emphasis in original, footnote omitted)). Similar is the view that ‘comparative legal scholarship is just ordinary legal scholarship’, only open to a bigger data set (Smith, 2010: 334). In contrast to the aim of consolidating comparative law as a distinct discipline, Curran (2006: 700) sees the field’s aim as ‘becom[ing] so pervasive that it disappears…shedding its own distinctiveness in a globalizing world which needs the methods and skills the field has developed to be infused into all forms of legal analysis’. This article posits that some moves by comparatists are interesting and relevant to sociolegal scholars irrespective of whether they are unique to comparative law. Sociolegal readers may thus bypass the self-interested interventions seeking to ratchet up comparative law’s prestige, important as they may be for comparatists (and revealing as they may be for observers of the sociology of the legal academy). This awkward combination of angst and ambition helps to make sense of methodological debates to which the article now turns.

Methodological Debates

Over past decades, comparatists have sustained a number of exchanges about method. It is an exaggeration, though, to say that ‘everyone is a methodologist – to be a comparativist today is to worry about the proper terms, categories, scale, methods, and data to be used in comparison’ (Riles, 2001: 2 (footnote omitted)). Thus, while practitioners of CL13 wring their hands, those set on unifying the private law of Europe roll up their sleeves and get down to work. One drawback to framing scholarly discussion as debate is that it implies a possible conclusion with winners, rather than constant swings of a pendulum or an eclectic coexistence. Instead of making space for multiple approaches, much discussion around comparison as route to understanding law and its society (CL11) and law generally (CL12), as well as of method (CL13), takes the form of imperialistic calls to dominate the field. The field’s avowed interest in difference makes such a rejection of pluralism paradoxical. In any event, this part introduces debates around the critical legal scholars’ attack, taxonomic projects, legal transplants and functionalism versus cultural approaches. Much may interest sociolegal readers, but little of genuine distinctness will come from the mere fact of comparing different bodies of law.

The last quarter of the twentieth century witnessed a sustained attack on the purported mainstream of comparative law. Scholars – some associated with critical legal studies, especially at Harvard – denounced the political or ethical posture of comparative law. They pointed to its lack of reflexivity and denied its ostensible objectivity or neutrality (see especially Frankenberg, 1985; see also, more recently, Kennedy, 2003). They also blasted what they saw as comparative law’s inadequate method and impoverished selection of sources.

Readers of this journal may find puzzling these criticisms’ intensity and prolonged nature. For one thing, critical comparatists – concerned with how mainstream comparatists overlook nuances, complexities and multiple voices – risk doing precisely that, ‘constru[ing] the discipline’s mainstream in a monolithic and simplified manner’ (Mattei, 2006: 832). For another, scholars familiar with the insights of anthropology, ethnography or even literary theory will concede that comparison cannot be wholly neutral, since the comparatist comes from a particular perspective, and that it should thus be self-reflective (Frankenberg, 1985: 441). Such scholars would grant that, in studying foreign law, the comparatist participates in a process by which she ‘finds and creates foreign law’ (Legrand, 2011: 88; see similarly Ruskola, 2002: 188). Indeed, scholars at Harvard were not the first to remark that ‘the identification of problems, the isolation of social needs, no less than the selection of countries of comparison, is a political, not an academic, act’ (Tur, 1977: 243−244). Nor would readers familiar with feminist, critical race or postcolonial critiques of the western literary canon find surprise in the charge that traditional comparative law inscribes western legal culture at the top of an ‘implicit normative scale’ (Frankenberg, 1985: 422), judging the world’s legal systems by ‘a common Euro-American measure’ (Baxi, 2003: 49 (footnote omitted); on western concepts’ distortion of non-western law, see Ainsworth, 1996: 30−31).

The sharpest critiques implicitly target subsets of the field. The view of comparatists as engaged in ‘an invasive political enterprise with considerable practical impact’, imposing ‘a postmodern form of conquest…through legal transplants and harmonization’ (Frankenberg, 1997: 260, 262), applies most to the activities leading to reform in other countries, such as CL4, CL5 and CL6. Indeed, a number of critics fasten on the paradigmatic example of functionalist comparison, CL8: Zweigert and Kötz (1998; for an incisive review, see Hill, 1989). A vituperative essay by Legrand (2006a) bears on a single German scholar spearheading work towards a European civil code. At least sometimes, then, critics are speaking less to comparatists generally – and less still to readers of this journal − than to positivist-minded European law reformers who conceive of law objectively, scientifically and technically. The anger, even shrillness, may reflect reaction to colleagues’ perceived indifference towards boat-rocking critique.

One set of debates treats the taxonomic project. Relative to the mid-twentieth century, taxonomic matters are no longer central. The main activity still ongoing here relates to the idea of ‘mixed’ jurisdictions, such as those where successive European conquerors have tried to overlay law already present with their own (e.g. Örücü, 2007; Palmer, 2012). Taxonomies of legal systems (David and Brierley, 1985) and legal families have ceded ground to the concept of legal tradition. The idea of the legal tradition as transmitted information, rather than as structure of rules, contrasts with legal systems’ and legal families’ ‘inherently static character’ (Glenn, 2006: 428). Those earlier taxonomies had inspired charges of Eurocentrism. David infamously honoured the ‘Romano-Germanic family’, ‘Socialist Laws’ and ‘the Common Law’, while relegating the rest to ‘Other Conceptions of Law and the Social Order’ (David and Brierley, 1985). It is thus significant that Glenn’s (2014: 2) notion of legal traditions may relativize western rational thought as ‘the leading characteristic of the western…tradition’. This notion leads attention away from rules towards contingent conceptions of legal change and time (although even a single tradition, such as the common law, may have its ‘own, internal legal-temporal pluralism’: Valverde, 2015: 47).

Another debate concerns the possibility or efficacy of copying law for use outside its original jurisdiction. Watson’s (1993) focus on ‘legal transplants’ as central to comparative law has spurred a voluminous literature (e.g. Nelken, 1997; Nelken and Feest, 2001). The most forceful response asserts legal transplants’ ‘impossibility’ (Legrand, 1997). Others propose alternative metaphors for how legal ideas move and what they do once they arrive (this literature is large; see e.g. Macdonald, 2009). For Teubner (1998: 12), ‘transplant’ wrongly implies that the transferred material ‘will remain identical with itself playing its old role in the new organism’, rather than ‘work[ing] as a fundamental irritation which triggers a whole series of new and unexpected events’. In turn, Langer (2004: 32−33) suggests that ‘translation’ better distinguishes the source language or legal system from the target one and invites us to notice the differences between the original and the translated text or idea (on the untranslatable, see Popovici et al., 2014). In the constitutional context, Choudhry (2006: 20−21) proposes that the metaphor of ideas’ migration emphasizes the fact of movement as well as the ideas themselves, without implying control on the part of the originating and receiving constitutional orders.

Yet why confine these insights to cases where legal ideas cross national borders? Domestic scholars may benefit from comparatists’ caution against assuming that law reform will straightforwardly achieve its objectives. This caution aligns with sociolegal work on judge craft, which reveals how judges may respond to governmental interference by means of ‘a conservative activism directed to preserving the status quo’ (Fielding, 2011: 114). While the transplant debates focus on legislative change, it is worth remembering that lawyers and judges regularly take up foreign legal ideas, integrating them into the legal system without legislative imprimatur. Thus, while some legislatures have incorporated contemporary ideas of gender equality and equal parenting by fathers and mothers into law, such ideas may condition outcomes in child custody disputes where lawmakers have done nothing or rejected such proposals (Côté and Gaborean, 2015). Similarly, conceptions of equality and multiculturalism may affect judicial reactions to religion’s appearance in family law said to be secular, as in the case of the Muslim mahr (Fournier, 2010).

On this matter, as on others, extreme positions are unhelpful. If Riles (2006: 802) is correct that ‘[t]he transplant concept, at least in its strong form, is too crude’, some opposition to transplants is too strong. Speaking to the concern with honouring difference that characterizes some critics of legal transplants, Nelken (2003: 444) notes that ‘many contemporary legal transfers are bound up with deliberate transitions from apartheid, Fascism or communism’. Prioritizing difference would therefore miss the point. Comparatists’ debates on transplants may underscore the need for attention to context when borrowing, but sometimes the practice claims democratic legitimacy.

The biggest debate concerns functionalist versus culturalist methods. The functional method, so the story goes, takes national laws as solutions to common problems. The cultural method takes national laws as reflections of a legal or other culture. Often these methods line up, respectively, with a search for similarity or sameness and an interest in difference (although focus on a western legal tradition might highlight similarities: Cotterrell, 2006a: 717; on ‘modern legal culture’, see Friedman, 1994; for caution against the idea that there is a single ‘European legal culture’, see Dedek, 2014). There are reasons for wariness about this binary and the accompanying notion that individual comparatists, let alone the entire discipline, should or must pin their colours to the mast of functionalist or culturalist methods. Persuasive voices deny that there can be a single method (e.g. Adams and Griffiths, 2012: 281; Glenn, 2015: 177; Rosen, 2003: 510; Sefton-Green, 2002: 95). Moreover, functionalism may be misunderstood and there may be many functionalisms (Michaels, 2006a: 342). Contra the culturalist critics, perhaps functionalism ‘never represented the sole or even the dominant approach to comparative legal studies during the twentieth century’ (Graziadei, 2003: 100). For his part, Hyland (2009: 96, para 151) argues that ‘what is known as functionalism in comparative law is in fact not functionalism at all’, but better described as ‘purposivism’, investigating how legal institutions fulfil their articulated purposes.

In opposition to functionalism, culturalist comparatists have advanced conceptual tools ‘to assist description’ (Legrand, 2011: 113). Prominent among them are ‘legal culture’ (e.g. Legrand, 1995: 263−264; Van Hoecke and Warrington, 1998: 521) and ‘mentalité’ (Legrand, 1995: 273). At least in strong form, the difference or cultural approaches have incited serious criticisms. For some critics, culture and legal culture are convenient but fuzzy terms, best disaggregated into constitutive elements (Cotterrell, 2006a: 725; see generally Cotterrell, 2006b, Chapter 5). The worry for some is that ‘culture’ alone is unstable and that appending the adjective ‘only exacerbates the conceptual tumult’ (Silbey, 2010: 470). The strongest or thickest cultural approaches to comparative law and legal cultures risk dissolving into an anthropological study of cultures generally.

Some approaches push back at functionalist comparatists’ focus on rules by advocating attention to legal ideas. Such approaches promise to differentiate comparative legal inquiry from anthropology. For example, in his famous account of ‘legal formants’ inspired by phonetics, Sacco (1991a: 21) opposes the search for a single ‘legal rule’. He points to the multiplicity of rules, potentially contradictory, emanating from constitutions, legislatures, courts, scholars, law teachers and sources outside the legal system. Sacco introduces the notion of ‘cryptotypes’, non-verbalized rules that affect the interpretation of verbalized rules (1991b: 384−385). Such tacit rules may help to explain why what is superficially the same rule operates differently in different places (and within a place). In turn, Ewald (1995: 2111 (emphasis omitted)) encourages attention to ‘law in minds’, the aim being ‘to understand the legal system from within and be able to think about it as a foreigner thinks’ (Ewald, 1995: 1948). A variation looks to ‘paradigms’ – lawyers’ ‘hard core of shared understandings, of basic theories and concepts, a common language, a common methodology’ (Van Hoecke and Warrington, 1998: 513−514).

Such concepts may aid comparatists in organizing thick descriptions, but their explanatory power is limited. Thus, where Michaels (2006b: 1027) writes that ‘[a] difference in paradigms can be particularly beneficial in explaining the differences between US and European laws of jurisdiction’, he means that the laws are different because the paradigms are different. Such a proposition will not satisfy causally oriented readers who wonder why culturally similar states have developed different paradigms. Put otherwise, some comparatists treat culture (or similar paradigms) as a fundamental independent variable, ‘something that explains differences’, while approaches such as economic analysis take culture as a dependent variable, ‘something to be explained’ (Hadfield, 2009: 233). Sociolegal scholars and legal pluralists might here posit that ‘the correspondence between law and society is far more complex than previously admitted, or even that there is no correspondence’ (De Sousa Santos, 1987: 281; see also Fitzpatrick, 1984: 138 (law as ‘the unsettled product of relations with a plurality of social forms’)).

Another argument would temper the culturalist comparatists’ focus on the ‘inner’ point of view. The concern is that participants in a legal system may be poor informants and that outside observers may better spell out latent assumptions (Whitman, 2003: 334, 336). Indeed, especially where they are debating policy-driven legal transfers, the ‘natives’ may appreciate the foreign lawyer’s external perspective (Nelken, 2003: 443−444). Furthermore, ‘[r]endering foreign legal institutions entirely in their own terms leaves no space for relating these terms to experiences elsewhere’ (Bomhoff, 2012: 75). Ironically, for all the ink spilt, the contextual approach ‘has not led to a great deal of interest in the possibility of comparison, for if context is all important, then meaningful comparison becomes increasingly problematic’ (Riles, 1999: 245; see similarly Hyland, 1999: 196). Context and culture have proven to be the subject of CL13 more than tools for actually comparing laws in the practice of CL11 or CL12.

Whether or not anyone ‘wins’ the debate, these discussions of method may inspire sociolegal scholars to study a broad set of sources. Without joining the most intrepid culturalists by taking novels, poetry and painting as helpful to understanding law (or as legal artefacts), one may follow comparatists by taking legal scholarship seriously (on doctrine, see Van Hoecke and Warrington, 1998: 522−523). One example of comparative scholarship in this vein takes annotated criminal codes, consulted daily if unremarkably by lawyers and judges, as a ‘window onto legal culture’ (Kasirer, 1990: 523). Another traces family law’s expanding contours through changes in the organization of textbooks, as marriage gives way to the more inclusive ‘conjugality’ as the overarching category for adult unions (Leckey, 2009a: 66). Another approach – framed as comparison of legal culture, but quantitative – traces differences in legal behaviour to ‘detailed, seemingly secondary provisions, budgetary conditions, and institutional infrastructures’, such as those fixing access to legal aid (Blankenburg, 1998: 4).

As for the handling of sources, Legrand (2006b: 439) enjoins comparatists to respect their materials, like a cabinetmaker who treats each piece of wood not as fungible but as authentically itself. Of course, calls for respectful engagement with text, including attention to legal writing as craft, do not limit themselves to comparative law. For those persuaded by them, such calls may appear urgent in domestic scholarship (White, 1990: ix-xii; for a link between White’s conversational approach and comparative law, see Watt, 2014: 186). Indeed, the most stimulating insights from comparatists’ discussions of method do not depend on combining legal sources from two or more states.

Private to Public

If for too long comparative law focused on private law, leaving comparative public law ‘a neglected discipline’ (Harding, 2000), the tide has turned. Works such as The Oxford Handbook of Comparative Constitutional Law (Rosenfeld and Sajó, 2012) and young periodicals such as the International Journal of Constitutional Law and Global Constitutionalism attest to a flurry of activity – and to a hard-nosed assessment that there is a market to serve.

Methodological criticisms of comparative constitutional law reflect concerns from political science. Hirschl (2005: 126) contends that much scholarship ‘overlooks (or is unaware of) basic methodological principles of controlled comparison, research design, and case selection’. On his severe reading, too many comparatists select cases by ‘cherry picking’ (Hirschl, 2005: 153). He calls for the field to move beyond its usual method of multiple description towards causal inference through controlled comparison. To this end, he sets out principles of research design and case selection (e.g. ‘most similar cases’ and ‘most difficult cases’: Hirschl, 2005: 133−152). He represents one slant on scholarly inquiry when he proposes ‘causal inference’ as ‘the ultimate goal of scientific inquiry’ (Hirschl, 2005: 153; see further Meuwese and Versteeg, 2012: 233−236). This impulse to show causation departs from culturalists’ aim for thick description, understanding and explanation in a non-causal sense – and the latter’s occasional disdain for ‘the world of statistics and causal laws’ (Legrand, 2006b: 387).

Taxonomies of comparative constitutionalism may situate readers and aid researchers. Tushnet (2006) distinguishes normative universalism, functionalism and contextualism. His earlier, much-cited article contrasted functionalism, expressivism and bricolage (1999). He usefully notes cross-disciplinary affinities, connecting comparatists drawn to normative universalism with normative jurisprudence and political theory, comparatists drawn to functionalism with political science and comparatists drawn to contextualism with anthropology (Tushnet, 2006: 68). This journal’s readers may incline towards contextual work and its challenge to assumptions of sameness and universalism. For example, Bomhoff (2008, 2013) resists a widespread discourse tracing (and praising) the global spread of proportionality. He argues that proportionality (like Teubner’s good faith) varies in different contexts (on ‘privacy’ see Whitman, 2004). Similar attention to difference may complicate assumptions that the recognition of same-sex marriage across states partakes of one universalizing phenomenon (e.g. Isailovic forthcoming).

Methodological discussions with an eye to comparative private law might assist comparative constitutionalists. Think of the sensitivity to heterogeneity within a legal system and of the contrast between law in books (or in written constitutions and the judgements of constitutional courts) and in action. The challenge familiar to private-law comparatists is to avoid caricaturing foreign systems − one compounded by information shortages, including language barriers. Specifically, might high-profile taxonomic enterprises reproduce the static quality of the twentieth century’s classifications? Obvious examples are efforts to label systems of judicial review as strong form or weak form (Tushnet, 2008) and to insert an intermediate, ‘Commonwealth model’ between classic models of legislative and judicial supremacy (Gardbaum, 2013). Even the taxonomists’ expressed alertness to the instability and movement of systems may not allay all concerns (Kavanagh, 2015). For instance, the labels do not easily acknowledge that judges in the paradigm cases of legislative supremacy play a potent interpretive role and that legislatures in the paradigm cases of judicial or constitutional supremacy have many options for pushing back at courts. Moreover, judges and legislature do not always deploy their assigned powers predictably or as fully as constitutionally permitted. It is thus imperative to distinguish descriptions and assessments of models of rights protection as they appear on official paper from ones grounded in practice (e.g. Leckey, 2015). This brief look at methodological debates and at comparative public law’s recent flowering leads this review to comparative law’s payoffs and selected sparks of inspiration.

Ostensible Benefits and Inspiring Moves

The varieties of comparative law promise different benefits and each has leading or stimulating examples. Those tasked with implanting the rule of law and laying the groundwork for advanced capitalism in post-communist states would tell one story. Those ambitious to unify European private law would tell another. For its sociolegal readership, this part draws on the comparative literature focused on understanding law and its societies and on method (CL11, CL12 and CL13). It underlines comparative work with a particular bent, such as a critical edge honed by postcolonial theory or queer theory.

Offering a new perspective on oneself and one’s legal system, comparative law may provide an emancipatory critical edge. Its awareness that elsewhere things are different may ‘confront[] us with our own hidden conceptual, ideological framework’ (Van Hoecke and Warrington, 1998: 497), ‘show[ing] elements to be contingent that participants take to be essential’ (Michaels, 2006b: 1026). Comparative law may undermine assumptions that fundamental elements of the legal system, such as theories of authority and legal sources, are fixed or timeless (Glenn, 1987). It may also emphasize the recentness of major doctrinal categories such as ‘family law’ (Halley and Rittich, 2010) and their shifting boundaries (Leckey and Favier, 2016).

Comparative law may thus operate similarly to critical or theoretical perspectives within a system. Like feminist legal studies, comparative law may lead readers to be ‘sensitive to the consequences of laws, sceptical of the legal system’s claim to encompass all of social reality and practice, and critical of the law’s discourse of dominance’ (Demleitner, 1999: 741). It may also challenge those other perspectives. Comparative law might thus flag up the specificity of economic analysis of law, hatched in the confines of the (American) common law (Legrand, 1995: 264−265). This suggestion presaged the World Bank’s polemic indictment of French law as economically inefficient (World Bank, 2003; on French comparatists’ reaction, see Fauvargue-Cosson and Kerhuel, 2009). Looking to the civil law might accentuate the degree to which much ‘private-law theory’ cast in abstract, far-reaching terms (Weinrib, 2012) speaks narrowly of the Anglo-American common law of tort (and sometimes contract and property). Notably, the civil law characterizes family law – based in solidarity and responsive to needs – as a core domain of the fundamental private law. This fact spotlights the contingency – to avoid saying parochialism – of assertions that the essence of ‘private law’ is effecting corrective justice between a defendant and the plaintiff whose rights she has infringed (for scrutiny, as part of analytical jurisprudence, of the ‘transferability of concepts and terms across different contexts’, see Twining, 2005: 9).

As a matter of politics, ethics and aesthetics, readers of this journal may favour the currents of comparative law that question prevailing narratives. In his major initial critique, Frankenberg (1985: 454) calls for comparatists to ‘focus[] on what the dominant discourse leaves out, suppresses or marginalizes’. In this spirit, literature on legal culture and its internal diversity may warn against ascribing a false homogeneity to a national or other legal community (Riles, 2006: 794) or, indeed, to a tradition such as the civil law (Kasirer, 1992). An excellent example applying this approach is Lasser’s (1995: 1327) depiction of an unofficial portrait of French judges, in contrast with the portrait that is the ‘official product of state institutions’. He forms his counter-narrative not from field work, but from ‘mainstream French academic theory’ as well as ‘the hidden discourse of the French civil judiciary’ (Lasser, 1995: 1327). Lasser (1995: 1130) presses back at Dawson’s (1968) presentation of the French judicial system as ‘the American system’s formalist other’. To be sure, the risk ‘of ignoring diversity within a tradition’ (Leckey, 2009a: 71) and the merit of attending to overlooked minority or dissenting currents reach beyond comparative law. Domestic scholars may for multiple reasons flatten or distort their national tradition, accepting stock narratives at the expense of critical attention to the range of sources and their complexity. For example, American legal scholars have long propagated an unsubtle account of legal realism (e.g. Tamanaha, 2010).

Another stimulating current is reflexive or ‘meta’ comparative law, which turns the gaze back on mainstream comparatists. For instance, Sefton-Green (2015: 187) investigates the ‘multifaceted and potentially ambivalent nature of legal academics’ roles in the process of constructing European private law’ (an instance of CL6). Some might, however, admonish producers and consumers of such scholarship to get serious and assume a ‘post-post-modernist approach to comparative law’ (Peters and Schwenke, 2000).

Other work sets itself squarely on the terrain of CL13, including examples informed by postcolonial theory. Cossman’s intervention builds on collaborative study of feminist engagement with law in India (Kapur and Cossman, 1996). She proposes moving ‘from the question of what is culturally specific about familial ideology in India (which retains the West as the unstated norm) to the question of what is culturally specific about familial ideology in Anglo-American legal systems’ (Cossman, 1997: 536). Her project ‘refuses the simple binaries of here/there, us/them (alongside a host of other binaries that the postcolonial project refutes: past/present, modern/tradition, global/local)’ (Cossman, 1997: 539). This current includes Ruskola’s work on ‘legal orientalism’. In the wake of dispute about the existence or character of law in China, he studies how the West has shaped its cultural identity against China in terms of law. He contends provocatively that Western representations of Chinese law ‘tell us far more about the Western idea, and ideology, of law than they do of any equivalent (or even non-equivalent) phenomenon in China’ (Ruskola, 2002: 196; see also Ruskola, 2013: 6). Queer theory underpins the interest in how subjects constitute themselves in relation to (often abject) others, although the queer influence is more explicit elsewhere (Ruskola, 2010: 1481).

A third example draws from law, linguistics and postcolonial studies to highlight problems with the widespread practice of discussing legal changes in Africa, Asia and Latin America in terms of ‘westernization’. Lau’s search in Westlaw found such language in over 500 law-journal articles from 2005 to 2010, sweeping bluntly across a range of states, regions, continents and topics (2013: 508). On his persuasive account, such language ‘frames understandings about change by emphasizing the significance of the West’, drawing attention to causal factors considered to be Western and effacing other local or global factors (2013: 536, 515). In a rigorous analysis that anticipates and rebuts objections, he urges readers to exercise scepticism in the face of the language of westernization and researchers to avoid using it.

The final inspiring current noted here takes law not as culture, but as knowledge. Samuel (1998: 817) proposes that comparative law take as its object ‘the internal structures of legal knowledge’. He refers not to rules, but to law’s structure for making sense of the world in which it applies, such as law’s models for constituting facts (Samuel, 1998: 827). Similarly, Riles (2006: 806) underscores the pertinence of inquiry into ‘the culture of expert legal knowledge to see what implicit assumptions, what social mores, what institutional constraints, what hierarchies accounted for how common sense was constructed’. Like Samuel, she argues that comparative law should be interested in ‘how law constitutes the “facts” of the world it purports only to regulate’ (Riles, 2006: 812). She views legal categories and techniques ‘as generative of certain kinds of social, political, and epistemological realities’ (Riles, 2006: 808 (emphasis omitted)). Geertz may hover in the background, noticing as an anthropologist that ‘legal facts are made not born’ (2000: 173). Beyond these examples of comparative law’s potential for inspiration, it is possible to frame challenges for future work.

Challenges and Opportunities

Despite hopes summarized above, comparative law offers no unified programme. Although Riles (1999: 226) once believed it ‘poised’ to do so, comparative law has not ‘upstage[d] interdisciplinary approaches to legal scholarship and jurisprudence as the theoretical engine of legal studies in an era of transnational legality’. Nevertheless, its eclectic methods and ‘passion for understanding’ the differences of foreign law (Riles, 1999: 282) have much to offer. At least four points are identifiable.

First, the nation state can no longer be comparatists’ focus. Assessments vary as to whether the phenomenon of globalization is ancient or new. Arguably, past comparatists exaggerated the nation state’s stability and coherence, shoring them up. In any case, powerful producers of norms such as the European Union and the World Trade Organization animate ‘new spheres of normativity distinct from the nation state’ (Muir Watt, 2006: 580). ‘[T]he eroding distinction between domestic and foreign law’ and the ‘blurring of categories between law-making also at the national and international levels’ enfold comparative and international lawyers in ‘a shared, global field of interlegality’ (Ruskola, 2002: 199 (footnote omitted)). To the extent that comparatists keep studying state law, it is worth recalling that states are heterogeneous in their languages, religions, ethnicities and laws (Glenn, 2013). A ‘national law’ contains ‘fragmented, sometimes integrated, sometimes conflicting normative orders’ enforced variably and differently linked to cultures and the global arena (Riles, 2006: 794). Legal pluralists’ attention to an ‘intersection of different legal orders’, what De Sousa Santos (1987: 298) calls ‘interlegality’, can inspire sensitivity to the normative complexity.

Second, as a matter of legal sources, it is necessary to go beyond the national judgements and legislation, especially civil codes, dear to previous generations of comparatists. Researchers will vary in their embrace of unorthodox sources, but in some settings, forms of private rulemaking, soft law, arbitral norms and practice and industry associations’ voluntary codes of conduct may matter more than official state law. Frankly, in some contexts, a damning string on Twitter will bite more sharply than any sanction by government or an industry association, although comparatists might struggle to see that as law.

Third, the interaction between transnational or international and domestic norms and principles offers fruitful lines of inquiry. In contexts varying from European consumer and anti-discrimination law to ostensibly universal human rights, norms from above interact unpredictably as they hit particular ground. Comparative methods may add complexity to international law, which cannot achieve its aims without engaging ‘the myriad legal, social, and cultural differences among States’ (Rosenblum, 2007: 762). The agenda of comparative law appropriately includes ‘the extent of local resistance to global pressures in the direction of uniformity’, as well as ‘strategies of reappropriation of the global by local traditions’ (Muir Watt, 2006: 588). Comparison may draw on anthropological explorations of human rights’ integration into various contexts (Goodale and Merry, 2007).

Fourth, relatedly, scholars informed by comparatists’ debates about transplants and sensitivity to difference may explore the ramifications of the movement, not of rules or legal concepts, but of ideas and social phenomena. Think of indigenous people’s rights to self-governance and to stewardship of natural resources, of the threat of terrorism, and of the headscarf or religious resolution of family disputes. What crosses jurisdictions is not necessarily a particular legal model, as talk of legal transplants supposes, nor is it a solution to a common ‘problem’, as functionalists would have it. It may be, rather, a framing of the phenomenon and of reactions to it. Drawing on the debates on legal transplants, functionalism and cultural approaches, comparatists have contributions to make. Comparative law might perhaps bridge the gap between legal studies and other disciplines.

Conclusion

This article has identified several of comparative law’s past and potential contributions to legal scholarship. It has distinguished a variety of comparative laws, the practitioners of some of which appear to wish the extinction of others. Without affirming that comparative law can never be ‘distinct’, this article has identified what comparative law shares with other kinds of critical legal scholarship and with cognate disciplines. It accepts that the best comparative law heightens consciousness of the contingency of one’s own law but concedes that other critical tools may do so too.

For those keen to consolidate comparative law and expand its influence, there is – put delicately – a branding opportunity. Less delicately, there is a loss of control. Much research that comparatists might claim as theirs does not flow through comparative law’s institutional channels – sometimes a tad stuffy – such as the International Academy of Comparative Law and the established journals. Such research flourishes under labels such as European private law (Michaels, 2012), transnational law, global law and legal pluralism (e.g. Darian-Smith, 2013; Halliday and Shaffer, 2015; Zumbansen, 2010, 2012). For instance, researchers in law and sexuality are sensitive to ideas’ movement, and to queer theory’s incarnations in postcolonial settings, but little of this work positions itself expressly under the banner of comparative law. While legal scholars increasingly accept comparatists’ enjoinment not to restrict their regard to a single state’s domestic law, many do not link that acceptance to doing comparative law. Critical scholars stress comparative law’s potential to be subversive (Fletcher, 1998; Muir Watt, 2000). Yet some of what seems most subversive or critical in journals of comparative law might strike scholars in other disciplines as tame. Comparative law declares itself open to the other. Still, one occasionally suspects that whether or not she turns her mind to comparative law, the other is already going about her business…somewhere else.