Over the past ten or twenty years, the discipline of comparative law has been revitalized and has made considerable progress. It has faced new tasks and challenges, arising mainly from the Europeanization of law and, more broadly, the globalizing trends in contemporary life. It has been subjected to close scrutiny from a variety of perspectives, especially in Europe and the United States. It has lost its methodological innocence as scholars began to ask hard questions about traditional approaches, such as the functional method. It has engaged in interdisciplinary discourse with history, sociology, economics, anthropology, and other fields. As a result, comparative law has become a vibrant and intellectually stimulating field of study and research and it has advanced our knowledge in a variety of areas and contexts. At the same time, it has often been noted that there is no comprehensive account of the ‘state of the art’ of the discipline. This book undertakes to provide such an account.
Its three parts are preceded by an analysis of comparative law avant la lettre. This historical introduction shows that even before the emergence of the modern discipline of comparative law there have, of course, been comparisons of different legal systems. In fact, traces of a comparative approach can be found as far back as Ancient Greek constitutional philosophy.
In eight chapters, Part I then assesses the development of modern comparative law in a number of different countries and regions of the world. According to a widely held view, the discipline in its current form is of relatively recent origin. It evolved in the nineteenth and early twentieth centuries, that is, in an age which was characterized by the nationalization of law and legal discourse. Even though modern comparative law served to counteract legal nationalism, it was also, to some extent, affected by it: for the discipline developed differently in different legal systems, or legal families.
Part II forms, in a way, the core of the book. Its eighteen chapters look at comparative law more broadly, that is, as an intellectual enterprise. What do lawyers do when they say that they engage in comparisons? What methods and approaches do they adopt? Does comparison (have to) focus on similarity or difference? Is it plausible to distinguish different legal families, or legal traditions? Does comparative law essentially amount to the study of transplants and receptions? What can we learn from the experience of ‘mixed legal systems’? What are the practical tasks of comparative law? Which challenges does the discipline face as a result of the process of globalization? What is its significance in non-Western cultures? How does comparative law relate to other disciplines? To what extent can it be described, or should it be turned into, an interdisciplinary exercise? The chapters commissioned for Part II pursue these and other questions, arriving at more or less confident answers.
Part III focuses on important individual branches of the law in which comparative studies have borne at least some fruit. The sixteen chapters assembled here are supposed to summarize the state of the art in their respective fields. What important comparative work has been done? When, where, and why has that work been performed? What have these studies been able to achieve? What does the map of the law look like in that subject-matter (p. viii) area? Where do we find similarity or difference? What are the specific difficulties facing scholars working comparatively in the respective area? Are there any particular contexts within that field where comparative scholarship is likely to be of greater benefit than in others? Are there important, and perhaps even urgent, tasks waiting to be tackled by comparative legal scholarship? Thus, what will the agenda for the discipline be in the foreseeable future? These were the main questions which the authors in Part III of the present book have attempted to answer.
Comparative law, today, is highly diverse. Moreover, hardly anybody possesses the linguistic skills and the background knowledge required to subject even an individual area of the law to a truly comprehensive comparative study, let alone a number of areas. Thus, a work like the present one requires the international cooperation of a great number of scholars. We have assembled a team of more than forty contributors from twelve different countries in four continents. As will be readily apparent, the individual authors have been left considerable freedom in devising their chapters within the general framework sketched above. Some of them have decided mainly to discuss substantive legal issues, others have primarily provided a survey and an assessment of the existing literature, and yet others have engaged in the discussion of specific problems which are close to their hearts or scholarly agendas and, at the same time, characteristic of a particular aspect of comparative law. In all this, the book reflects the pluralism of approaches, methods, and subject-matter areas characteristic of comparative law today.
We are very grateful indeed for the authors’ willingness to cooperate in this project and to contribute their specific expertise. We appreciate their readiness to engage in, sometimes spirited, debates with the editors, to react to our suggestions or to decide to hold their ground, and, more generally, to comply with the many demands necessitated by such a large endeavour. We are also indebted to a number of people who have helped us with the preparation of this book, particularly Peter Webster and Ben Steinbrück in Hamburg and Baiba Hicks and Nancy Paul in Michigan. And we received the support of the institutions with which we are affiliated: the Max Planck Institute for Foreign Private Law and Private International Law in Hamburg and the University of Michigan Law School in Ann Arbor. Finally, we owe a debt of gratitude to John Louth and his team at OUP for their unfailing support and encouragement.
Of course, we realize that this book has a number of shortcomings. Most importantly, perhaps, it is not truly comprehensive. Some areas of the world have received scant attention, and some of the more specialized branches of the law had to be left unexplored. But if the project was to be kept within manageable bounds, and within the confines of one volume, more could hardly be done at this stage. None the less, we hope that the book will give a vivid impression of a legal discipline which is both intellectually exciting and perhaps more practically relevant than ever before. At the same time, it is hoped that this volume will bring home to its readers how much interesting work remains to be done.
Hamburg and Ann Arbor, February 2006