Abstract
In the article the author sketches the present state of comparative law, discusses the change and expansion in scholarship and concludes with a remark on what possibly is in store for the comparative study of law. The article depicts the present state of comparative law as ‘a jungle’ and then proceeds to explain why ‘one size fits all’ is not possible or desirable any more. Instead of building a unified discipline it is argued that it is more important that those who study law comparatively commit to using methods of investigation and analysis applicable to satisfying their intellectual curiosity. Instead of looking back at the past of the discipline seeking to build a unified field, it is more fruitful to adapt to the global pluralism of today.
Introduction
There is a bit of a paradox at hand when one seeks to explore the potential future of comparative law because it is not quite possible to do that without saying something about its past too. 1 Scholarly pedigree, or path dependence, has a strong influence on how we think about comparative law. However, for the purposes of this article there is no need to stretch back very far in the history. It would be futile to look back all the way to the mythical starting moment of the 1900 Paris conference when the mainstream started to flow. 2 To that end, discussing the future of comparative law only requires looking at the field's recent past. In other words, I maintain that the late 1990s and early 2000s were formative years for today's situation and for the foreseeable future.
The narrative design of this article is based on the metaphor of pyrrhic victory, which refers to a victory that comes at a great cost, perhaps making the whole ordeal to win not worth it. The name belongs to a king of an ancient state in Greece called Epirus, Pyrrhus I (Πύρρος Α΄) who defeated the Romans in 279 BCE but lost most of his troops in the battle. This kind of a victory is used as an example of hard-fought but ultimately meaningless victory, or winning the battle but losing the war. 3 The issue I wish to tackle within this short article is this: has comparative law won or lost the war of becoming more relevant among the fields of legal scholarship? 4 The context of the question is the elusive premonition of the late 1900s and early 2000s that emanated from an expectation of the prophesied great future of comparative law. 5
In what follows, I shall sketch the present state of comparative law (section 2), discuss the change and expansion in scholarship (section 3), address the role of legal cosmopolitanism (section 4) and conclude with a remark on what is possibly in store for the comparative study of law (section 5). One caveat is to be made at the outset: the present article is written from the personal perspective of someone who has been riddled with comparative law issues since the mid-1990s.
It's a jungle out there
For the discussion on the future of comparative law research it is particularly useful to register the difference between today and the late 1900s. A significant change took place in between those points of time. In the past century, there was something that could be characterized as the paradigm. 6 The paradigmatic model made it, if nothing else, possible to get an intellectual grip on the field. Today there is no one accepted blueprint and thus no full view is within reach. As a field, comparative law of today finds itself facing difficulties due to information overload. 7 The comparatist of today is being overwhelmed by the quantity of publications and data available on the internet. One cannot obtain an overview just by following the leading journals. 8 Nowadays, one needs to decide which journal to follow to get an overview even of a specialized field or a region. 9
It is not only about the information overload, as there is diversity in the substance areas, methodologies and outlooks. Importantly, the outlook of the literature is pluralistic, as the writing styles and formats range from philosophical, historical, imaginative, social scientific, doctrinal, among others. One could argue that the comparative study of law has moved from barren land to a jungle. Regardless of the change, comparatists still cite such scholars as Zweigert and Kötz, but their book is no longer the opus that virtually every comparatist relies on. 10 Crucially, no new such epitomic popular opus has emerged. Undoubtedly, there are important books that are cited by many, but they are built on a different scholarly ethos like, for example, Glenn's book on legal traditions. 11 Glenn's scholarly mentality, in essence, embraced diversity methodologically, geographically and historically. 12
In order to understand how profound the change is, one needs to consider the scholarly mentality of earlier comparative law studies. The scholarly fountains of current comparative law are rooted in the past project of developing comparative law into a genuine science. 13 Perhaps the scientific ambitions of traditional comparative law have not disappeared totally but there are a great deal of other choices obtainable. 14 The spirit of ‘scientification’ has waned but the aftermath is not a scholarly apathy. Because no dominating paradigm has emerged, the earlier layers of scholarship still exist. Consequently, household issues like legal families, legal transplants and functional method are still discussed. 15 In addition, the international academy of comparative law (founded 1924) still organizes big conferences, but it has more or less lost its leading role as other organizations in different fields of law and legal disciplines have multiplied. 16 Some of them, like the International Society for Public Law, have grown swiftly whereas others, like the European Society for Comparative Legal History, have grown with a more moderate speed. 17 All the same, much older societies like, for example, the Société de législation comparée are still active players in the field. 18 Established scholarly societies have adapted and started new activities like, for example, blogs. 19 For the most part, the comparative study of law has diversified and expanded in unprecedented directions not familiar from the past century. 20 Instead of becoming a neatly organized discipline, comparative law has turned into an impenetrable thicket of scholarly works.
So, what is going on? Endeavours to get rid of the colonial mindset, budding computational comparative law and the search for interdisciplinarity illustrate the unfolding scholarly boundaries of comparative law. 21 Comparative constitutional law is an example of an expanding field that is developing rapidly and apparently towards territories unknown to traditional comparative law. 22 And, to mention a further example, combining economic and comparative approaches in the study of law has evolved along its own tracks. 23 Moreover, legal linguistics and comparative law have been combined in an interesting and fruitful way. 24 One of the recent novelties is comparative legal geographical research that discusses how ‘the legal’ creates ‘the spatial’ and vice versa. 25 The return of geography may feel a bit like there is nothing new under the sun, as geography was an important dimension of comparative study of law already in Montesquieu's work. 26 Recent initiatives seek to combine comparative law and law and literature, and merge law and religion with comparative law. 27
All in all, comparative study of law today has drawn ideas and methodologies from non-legal fields. The tentative explanation is relatively simple: the world of law, freed from the Westphalian idea that each state has exclusive territorial sovereignty, has become more complicated for a unified discipline to seize. The underlying idea of the past comparative law scholarship, an intellectual monopoly, has become more or less obsolete. This observation is, I believe, important for anyone who seeks to predict what lies ahead for the comparative study of law.
The intellectual change is not difficult to detect. Modern textbooks on comparative law's theory and method demonstrate how the field changed. Old certainties are no longer taken for granted and the idea of ‘one size fits all’ for comparative research has been all but abandoned. 28 This change reflects general developments such as, for instance, globalization and waning of the Westphalian legacy of public international law. 29 Comparative law has faced the challenges of globalization of law and legal scholarship by adapting and reshaping itself. Along the way, much of the comparative law scholarship has become ‘critical’ as to its nature. 30 This criticalness is shown in the manner in which comparatists have become more self-aware of their underlying scholarly assumptions.
It has also been rightly noted that comparative law has grown greatly in recent years because the globalized world is complex and interconnected. This has caused an expansion of comparative law's areas of interest to fields like transnational law, new lex mercatoria and global lex sportiva. 31 All this has raised new challenges, but it has also opened unexpected horizons for the comparative study of law. 32 Whatever one thinks of comparative law and its expansion, there is no doubt that it is a vibrant area of legal scholarship. It is not quite clear if the field has found the audience beyond legal academia that Markesinis searched for more than 30 years ago, albeit different forms of comparative law scholarship have found audiences, not just one audience. 33 This is yet another sign of the diversification of the world of law and comparative study of it.
From ‘one size fits all’ to a toolbox
The scholarly shift is not only about proliferation of source materials and the number of legal scholars interested in comparative study of law. Novel influences, currents and methodologies are discussed. Cutting-edge literature on comparative law no longer necessarily seeks to identify and defend any particular method or a way of thinking and an attempt to build a discipline. Regardless, it may come as a surprise that the so-called functional method is still seen as a useful part of the methodological toolbox of the comparatist. 34 If this holds water, then what is it that has changed? Are we still after all these years chained to the Zweigert and Kötz type of doctrinally oriented scholarship focusing on private law, and the juxtaposition between common law and civil law? My answer is, simply, no. Unlike the earlier comparative law scholars, today's comparative law scholarship has assumed a more flexible understanding of the field as it seems to have embraced many of the ideas related to legal pluralism. The dream of scholarly uniformity based on the ambition of comparative law as a genuine science in the spirit of hard sciences is, by and large, abandoned. 35
The importance of pluralism is underlined in the above, but what does pluralistic methodology look like if and when the idea of ‘one size fits all’ is abandoned? This is not an easy question to answer. Methodological pluralism may mean tolerating other approaches; for instance, holding that functionalism can still be a part of comparative law's toolbox of methods even though one would abhor it. 36 In a similar fashion, the urge to build a common canon of knowledge may appear like a remnant from 20th-century scholarship. 37 Instead of a common canon we see the shadows of comparative law, as much of the past scholarship was built on the legacy of colonialism and Western hegemony. 38 One important outcome of the diversification of comparative law is an accompanying realization that there is a world outside the old cultural and epistemic boundaries, beyond common law and civil law, and beyond private law. 39 One further concretization is the considerable expansion of comparative law scholarship focused on Asian systems. 40
The scholarship of the past sought to make comparative law into an autonomous discipline. 41 The comparative study of law has evolved in this century and there are conflicting views about the field's scope, methods and outlook. The paradigm of the 20th century that sought almost compulsively scholarly unity is disappearing. 42 Consequently, it is not quite evident how far comparatists can depart from the disciplinary assumptions of the doctrinal study of law. Of course, there are limits, as ‘comparative lawyers are, in the first instance, trained in law. Indeed, one of the obstacles is the lack of familiarity with other disciplines.’ 43 Yet the growing body of comparative law scholarship and its intellectual endeavour is influenced by neighbouring areas of study. 44 It has been pointed out that interdisciplinarity, praised virtually by everyone, is not a walk in the park. 45 More than that, interdisciplinarity is not an epistemic and methodological panacea because it offers no easy solutions. 46
Currently, there is a plurality of approaches and schools of thought. Some draw from scholarship that builds on interpretative culturalism whereas others are inspired by a quantification-friendly analytic style. 47 There is more to it. Constitutional comparatists go much further and suggest relying more broadly on the quantitative analysis based on survey- or indicator-based data. 48 The call for quantitative and empirical research has been made also by non-constitutional law scholars. 49 What is noteworthy from the viewpoint of this article is the apparently uncomplicated way in which pluralism and the accompanying methodological tolerance have been more or less adopted without any visible protest. 50 The creeping change seems to verify how the expansion has caused pluralism, as it is not possible to think that a single comparative law discipline could possibly include all that is going on under the banner of comparative study of law. Even if one might accept that comparative law is an instance of legal research in general, there are special challenges in comparative legal research. 51 This state of affairs raises questions about the identity of comparative law scholars and the very nature of comparative law scholarship.
Are we all comparatists now?
During the latter part of the past century comparative law scholars struggled to come out of the shadows and to the centre of legal scholarship. Overall themes like globalization, transnationalization and Europeanization seemed to imply that the time of comparative law had finally come. Reality, alas, looks different. On a closer inspection, however, not many comparative law Chairs have been established, not that much new funding has flown to comparative law scholars. European law, international law, global law and transnational law are doing better than the comparative study of law. 52 Regardless, lots of new journals and books have been established, which means that at least in principle there should be plenty of room for comparative study of law. This could indicate that proliferation does not mean that comparative law as a discipline will become more established or prestigious, even if there are more comparisons.
If one assumes the position of the past century's comparatists, then, one may ask: where are the real academically serious comparisons? It seems that despite the optimism of the late 90s and early 2000s, research funding money went elsewhere; lip service failed to transform into new Chairs. In short, action moved to juicier themes like European, transnational and global studies. Against this backdrop, it seems that ‘serious’ comparative law scholarship lost the battle. Instead of ‘great comparatists’ ruling the field there are all sorts of comparisons done all around the globe and in numerous fields of law. 53 But is it really a defeat? Should we also ask: who are the comparatists of today? Is the past cosmopolitanism seeking to build truly scientific comparative law merely water under the bridge?
Legal cosmopolitanism of today is, no doubt, connected to the phenomenon of globalization of law. Along those lines, Twining claimed more than 20 years ago that virtually all legal studies are cosmopolitan. He based the claim on the simple fact that legal scholars, law students and practitioners regularly have to use sources, materials and ideas developed in multiple jurisdictions and stemming from many legal cultures. From there it allegedly follows that ‘we are all comparatists now’. 54 Of course, the idea that ‘we are all comparatist now’ has an intellectual appeal to many, including this author, but does it hold water? 55 Has the scholarly spirit upheld by the great comparatists of the 20 century been diluted, only too much? Were we not supposed to have the discipline of comparative law, prestige among legal disciplines and so on?
In my view, growth and acceptance of methodological and scholarly pluralism has modified the intellectual atmosphere. As a result, today we can see that comparative perspectives are embedded, in a more or less systematic way, in the study of contract law, commercial law, constitutional law, environmental law and comparative studies are increasingly being pursued at a doctoral level. Accordingly, arguing that comparative law lost the war makes no sense. So, even though great brilliant unified comparative law never materialized, the ideas and aspirations of comparative law scholars have gained the upper hand from below. Instead of ‘one size fits all’, the comparative study of law has expanded and adapted to various fields and methodologies. 56 Comparative law lost the battle of becoming the king of legal scholarship of this century. Instead, the comparative approach to law has spread to various fields of law and forms of legal scholarship. In other words, unlike ancient King Pyrrhus, the comparative study of law won the war even though it may have lost a battle.
Upcoming?
What lies in the future for comparative law? Fully aware of the difficulty of predicting, I stick my neck out and argue that if comparative law as discipline lost the battle, we need to ask: who won the war? For me, comparative law has no future. This may sound harsh and perhaps even shocking, but what I am arguing is that instead of one future there will be many futures. There will be many sorts of comparative studies that are based on different theoretical assumptions and use different sorts of methodologies. In the end, comparative law is not merely one discipline, as it is important to admit that comparative study of law, in all its forms, is an open-ended matter. 57 This is a victory, not a defeat. More prosaically, in the Narnia stories it is said that the key character Aslan is not a tame lion, meaning that he is unrestrained and independent. 58 In my view, this applies to comparative law, making its future difficult to foresee. I suggest that it is not fully wise to seek to tame the comparative law jungle into a neatly organized garden. Admittedly, for the urge to build a discipline this may be a pyrrhic victory.
All this does not mean that theoretical scholarship on methodology would be useless; quite the opposite. Usefulness of this kind of scholarship is not, however, the same thing as to insist that there needs to be a unified discipline. What is important is not that there is a distinct and genuinely scientific discipline of comparative law but that those who study law comparatively commit to using methods of investigation and analysis applicable to satisfying their curiosity about non-national law. 59 In the end, comparative law theoretics, those who work with epistemology and methodology, need to adapt and improvise. There is no point in staying in the trenches of scholarly battles fought under the banners of the past. 60
