COMPARATIVE LAW - The holistic approach to legal cultures

COMPARATIVE LAW, LEGAL HISTORY, AND THE HOLISTIC APPROACH TO LEGAL CULTURES.

by Michele Graziadei

1.         Introduction

What can comparative law do for legal history? The question has no obvious answer today, in our age of specialized disciplines, such as legal history and comparative law[1]. Therefore, we need to address it afresh[2]. In doing this, the present contribution advances some points of view that may foster a new dialogue among scholars who may want to cross the line between the fields of comparative law and legal history.

As a matter of fact, though the birth of modern historiography owes much to the development of comparative studies in the field of law[3], most legal history today is written without paying regard to comparative legal studies. The same is true for comparative law: comparative law scholarship seldom delves deeply into the historical dimension of the law, but rather focuses on the present alone.

Of course, there are welcome and important exceptions to this attitude in both comparative law and legal history, and I will turn to them while discussing my opening question. Nevertheless, the relationship between comparative law and legal history, though often stressed[4], is seldom explored by the majority of contemporary legal historians and comparativists.

It is not my task to investigate the causes of this state of affairs. I am content to note that, at least in Europe, legal history shares the fate of comparative law. Both disciplines feature in a cursory way, if at all, in the literature which is devoted to the exposition of the law for the benefit of students or practicing lawyers. Thus, the rarity of the historical and comparative perspective on the law produces a dim awareness of the law we live by.

This last remark leads me to the topic examined in the following pages. How can comparative law contribute to legal history, and thus eventually lead to a better understanding of the law?

Comparative law may influence the practice and the study of legal history in (at least) three ways.

First, the comparative study of different historical facts may help to define the various factors that cause a certain historical outcome. Sometimes this is perceived as the only proper exercise in comparative legal history. It is easy to agree with this view, but there are reasons to believe that such a use of the comparative method is just one of the possible uses of the comparative law approach to legal history.

Second, comparative law can help legal historians to appreciate the extent to which the history of law is a story of give and take, of trade in legal rules, institutions and doctrines, across frontiers.

Third, comparative law may shape historiography by providing a critical assessment of each historiographical tradition.

These various products of the comparative approach to legal history can hardly be separated. Yet, for the sake of analytical clarity, it is better to consider them one by one. The potential impact of the first one is addressed by other contributions to this symposium[5]. Thus I will concentrate on the second and on the third contribution that comparative law can make to legal history.

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[1] When legal history was emerging as a specialized subject in England F.W. Maitland himself, the patron saint of English historians, proclaimed that "history involves comparison": F.W. Maitland, Why the History of English Law is Not Written, in The Collected Papers of Frederic William Maitland, edited by H.A.L. Fisher, I, 1911, 480 ff., at 488. Maitland was certainly not the only one to hold such a belief in his time. Donahue, Comparative Legal History in North America, Tijdschrift voor rechtsgeschiedenis (TR), 1997, 1 ff., p. 9 ff., now points to the danger of lack of professionalism, of historical professionalism, by those who enter the field of comparative legal history, given the demanding standards of modern historical scholarship. The risk is certainly there, and Maitland, was aware of it as Donahue shows. On the other hand, one may question whether such modern standards are truly satisfied by studies which ignore relevant sources because they relate to different geographical areas.

[2] The present relationship between comparative law and legal history in various jurisdictions are examined in the contributions presented to the XVth International Congress of Comparative Law, Bristol, 1998, sect. I.A. The only national report available to me at the end of 1998 is: Reimann & Levasseur, Comparative Law and Legal History in the United States, in Georges A. Bermann, Symeon C. Symeonides, American Law at the End of the 20th Century: U.S. National Reports to the XVth International Congress of Comparative Law, 46 American Journal of Comparative Law (AJCL) (1998), Supplement, 1 ff.

[3] Donald R. Kelley, Foundations of Modern Historical Scholarship, Language, Law and History in the French Renaissance, New York, 1970; id., History, Law, and the Human Sciences: Medieval and Renaissance Perspectives, London, 1984; John G. A. Pocock, The Ancient Constitution and the Feudal Law. A Study of English Historical Thought in the Seventeenth Century, repr. with retrospect, 1987.

[4] Kötz, Was erwartet die Rechtsvergleichung von der Rechtsgeschichte ?, Juristenzeitung, 1992, 20 ff.
[5] Luig, Was kann die Rechtsgeschichte der Rechtsvergleichung bieten ?, in this Review. See also Donahue (n. 3); Gilissen, Histoire comparée du droit: l’experience de la Société Jean Bodin, in: Mario Rotondi, Buts et méthodes du droit comparé, Inchieste di diritto comparato, 2, 1973, p. 255 ff.

[to be continued]