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Published online by Cambridge University Press: 28 February 2019
One distinctive feature of comparative law is the ongoing inquiry into the social usefulness of the discipline and the almost constant redefinition of the very object of its (scientific) research. Since the Paris Congress of 1900, comparative law seems to have inspired a vague sense of guilt in those who study it. No other legal discipline exhibits such a strong desire to justify its existence, with the possible exception of Roman Law.
1 See generally Gordley, James, “Is Comparative Law a Distinct Discipline?,” Am. J. Comp. L. 46 (1998): 607 (arguing that the law of different legal systems may in fact be the same).Google Scholar
2 The author of these lines did not have the chance to know Max Rheinstein personally; this anecdote was reported to him by William Twining, University College, London.Google Scholar
3 See Clark, David S., “Nothing New in 2000? Comparative Law in 1900 and Today,” Tul. L. Rev. 75 (2001): 871.Google Scholar
4 Lambert, Édouard, “Concluding Remarks,” in Congrès International de Droit Comparé: Procès-Verbaux des Séances et Documents 2 (1907): 43.Google Scholar
5 Id. at 51.Google Scholar
6 Id. at 38, 46.Google Scholar
7 The progress was surely slower and less spectacular than the developments that occurred in other fields of science during the same period. See Clark, supra note 3, at 888.Google Scholar
8 Convention Providing a Uniform Law for Cheques, March 19, 1931, 143 L.N.T.S. 355; Convention Providing a Uniform Law for Bills of Exchange and Promissory Notes, June 7, 1930, 143 L.N.T.S. 257.Google Scholar
9 Statute of the Hague Conference on Private International Law, opened for signature October 10, 1951, 220 U.N.T.S. 121.Google Scholar
10 ULIS entered into force on August 18, 1972, and ULF entered into force on August 23, 1972.Google Scholar
11 The United Nations Commission for International Trade Law (UNCITRAL) was established in 1966 as a permanent committee of the United Nations with its seat in Vienna, Austria.Google Scholar
12 The CISG was signed in Vienna on April 11, 1980, and entered into force on January 1, 1988.Google Scholar
13 As of June 2000, fifty-six states had ratified the Convention. Status of Conventions and Model Laws: Note by the Secretariat, U.N. Commission on International Trade Law, 33d Sess., U.N. Doc. A/CN.9/474 (2000).Google Scholar
14 Hague Convention on the Law Applicable to Trusts and on Their Recognition, 23 I.L.M. 1389 (1984).Google Scholar
15 See Bussani, Mauro & Mattei, Ugo, “The Common Core Approach to European Private Law,” Eur, Colum. J.. L. 3 (1997/98): 339, 343.Google Scholar
16 See Merryman, John Henry, “The French Deviation,” Am. J. Comp. L. 44 (1996): 109, 111. Merryman's argument would also apply to Germany. See Zimmermann, Reinhard, “An Introduction to German Legal Culture,” in Introduction to German Law 1, 19–21 (Ebke, Werner F. & Finkin, Matthew W. eds., 1996); Lundmark, Thomas, “Interpreting Precedents: A Comparative Study,” Am. J. Comp. L. 46 (1998): 211, 214 (book review); Lundmark, Thomas, “Introduction to German Law,” Am. J. Comp. L. 47 (1999): 677, 680 (book review).Google Scholar
17 See Beatty, David, “Law and Politics,” Am. J. Comp. L. 44 (1996): 131, 132, 150.Google Scholar
18 See generally Stoffel, Walter A., “Les professions juridiques et le droit comparé en Suisse,” Revue Internationale de Droit Comparé 46 (1994): 761 (discussing the use of comparative law by the legal profession); Stoffel, Walter A., “Vom praktischen Nutzen der Rechtsvergleichung,” in Festschrift für Jan Stepan 47 (1994) (discussing comparative law in practice).Google Scholar
19 See generally Calabresi, Guido, A Common Law for the Age of Statutes (1982) (arguing that the proliferation of statutory law has fundamentally changed the American legal system).Google Scholar
20 See Reimann, Mathias, “Stepping Out of the European Shadow: Why Comparative Law in the United States Must Develop Its Own Agenda,” Am. J. Comp. L. 45 (1998): 637.Google Scholar
21 Eörsi, Gyula, “Geistig und Begrifflich Geschlossene Zivilrechtstheorie,” in Festschrift für Konrad Zweigert 799 (1981).Google Scholar
22 Or other “mixed” fields in which this becomes apparent, like economic law (Wirtschaftsrecht). See Stoffel, Walter A., “Wirtschaftsrecht als Rechtszweig?,” in Theoretische Fragen des Wirtschaftsrechts 155 (1986).Google Scholar
23 See generally Obiora, L. Amede, “Toward an Auspicious Reconciliation of International and Comparative Analyses,” Am. J. Comp. L. 46 (1998): 669 (arguing that the resources of comparative law can be used to enforce human rights).Google Scholar
24 See Fleiner, Thomas, “Comparative Constitutional and Administrative Law,” Tul. L. Rev. 75 (2001): 929.Google Scholar
25 See Legrand, Pierre, “John Henry Merryman and Comparative Legal Studies: A Dialogue,” Am. J. Comp. L. 47 (1999): 3, 40 (“[T]he comparativist-as-cultural-analyst will always be under-informed.”).Google Scholar
26 See generally Glenn, H. Patrick, Legal Traditions of the World: Sustainable Diversity in Law (2000) (arguing that understanding legal traditions may help resolve many global problems).Google Scholar
27 Mattei, Ugo, Comparative Law and Economics (1997).Google Scholar
28 See generally Towards Universal Law: Trends in National, European and International Lawmaking (Jareborg, Nils ed., 1995) (containing a collection of essays on harmonization); Mattei, Ugo, “An Opportunity Not to Be Missed: The Future of Comparative Law in the United States,” Am. J. Comp. L. 46 (1998): 709, 709 (stating that “law would flow from its intrinsic character regardless of which jurisdiction produced the law”).Google Scholar
29 See Lambert, , supra note 4, at 46.Google Scholar
30 See Sacco, Rodolfo, “One Hundred Years of Comparative Law,” Tul. L. Rev. 75 (2001): 1159, 1162.Google Scholar
31 See, e.g., Case C-212/97, Centros Ltd. v. Erhvervs-og Selskabsstyrelsen, 1999 E.C.R. I-1484, [1999] 2 C.M.L.R. 551 (1999) (discussing the problems associated with a corporation's freedom of establishment).Google Scholar
32 The revival of the Societas Europea (SE) is unlikely to modify this assessment. The SE has a very limited scope in its application; its conception is almost thirty years old, and it hardly accommodates the needs of modern business organization and financing.Google Scholar
33 See Int'l Ass'n of Legal Sci., Report of the 1995 Colloquium (Buenos Aires): Converging Trends in a Shrinking World (1999) [hereinafter 1995 Colloquium] (including contributions by Garay, Alberto F., Sabsay, Daniel Alberto, Sono, Kazuaki, O'Farrell, Ernesto, Weir, Tony, Carlucci, Aida Kemelmajer de, Goddard, David, Castro Viera, Daniel G., Ziegel, Jacob, Rivera, Julio Cesar, Bermann, George A., Hendler, Edmundo, Bossert, Gustavo, Silva-Ruiz, Pedro F., and Cantero, Gabriel Garcia).Google Scholar
34 See Legrand, Pierre, “The Return of the Repressed: Moving Comparative Legal Studies Beyond Pleasure,” Tul. L. Rev. 75 (2001): 1033, 1037.Google Scholar
35 See Eörsi, Gyula, “Unifying the Law (A Play in One Act, with a Song),” Am. J. Comp. L. 25 (1977): 658 (commenting on the negotiations of a hypothetical, uniform law, he found that the text is a subtle piece of irony, of which its author was truly proud in his later years).CrossRefGoogle Scholar
36 See Legrand, , supra note 34, at 1037–39.Google Scholar
37 See, e.g., Mattei, , supra note 28, at 710; Symposium, “The Decline of the Nation State and Its Effects on Constitutional and International Economic Law,” Cardozo L. Rev. 18 (1996): 903.Google Scholar
38 [What is not said in English does not exist in the world.] This is a paraphrase of the Latin phrase, often used in European evidence: “Quod non est in actis non est in mundo.” [What is not in the files does not exist in the world.] (author's translation).Google Scholar
39 See generally Th. M. De Boer, “Facultative Choice of Law: The Procedural Status of Choice-of-Law Rules and Foreign Law,” Recueil des Cours 257 (1996): 223 (discussing whether parties should be free to raise a conflicts issue).Google Scholar
40 There were 121 ratifications as of June 2000: UNCITRAL note of June 6th 2000 on the status of conventions and model laws.Google Scholar
41 Recent comments on arbitration law identify such a trend. See, e.g., Fouchard, Gaillard, Goldman on International Commercial Arbitration 3 (Gaillard, Emmanuel & Savage, John eds., 1999) (“[T]he binding effect of an award—and hence the source of the arbitrators’ powers—derives from the community of legal orders which, under certain conditions, are prepared to recognize and enforce that award in their respective jurisdictions.”).Google Scholar
42 Modern arbitration statutes allow the arbitrators to apply the choice-of-law rules they consider applicable or simply to apply the rules they consider best suited. See, e.g., UNCITRAL Model Law on Int'l Commercial Arbitration art. 28(2) (1985); Swiss Code of Private International Law (CPIL) art. 187 (1987). The same is true for French, Dutch, and to a lesser extent, German law, although the revised German Code of Civil Procedure did not implement article 28 of the Model Law, but rather changed the rule to one which compels arbitrators to apply the law with which the dispute has the closest connection.Google Scholar
43 New developments show that the control of the award by the judiciary of the forum state may, in exceptional cases, not be conclusive anymore; in some instances, the invalidation of the award in that jurisdiction would not be an obstacle for its enforcement in other states. See Gaillard, Édouard, “L'exécution des sentences annulées dans leur pays d'origine,” Journal du droit international 125 (1998): 645. The author cautions, nevertheless, against a “présentation outrancière de la thèse internationaliste” and emphasizes that these developments only mean that the binding effect of the award is not solely in the discretion of the forum state anymore, but of all the legal orders recognizing “cet acte privé qu'est la sentence.” Id. at 673–74.Google Scholar
44 Bermann, George A., “Trends and Recent Developments in Civil Procedure,” in 1995 Colloquium, supra note 33, at 253.Google Scholar
45 See Int'l Ass'n of Legal Sci., Report of the 1998 Colloquium (Mexico City): Economic Globalization And National Legal Orders (forthcoming) (including contributions by Ajani, G., Aynès, L., Glenn, H.P., Goddard, J.A., Kaplan, M., Kozolchyk, B., Irarrazabal, J., and Witker, J.A.).Google Scholar
46 See id. Google Scholar
47 See Glenn, H. Patrick, “Comparative Law and Legal Practice: On Removing the Borders,” Tul. L. Rev. 75 (2001): 977.Google Scholar
48 Palmer, Vernon V., “Insularity and Leadership in American Comparative Law,” Tul. L. Rev. 75 (2001): 1093.Google Scholar
49 Being aware of differences creates a sense of our historical contingency. See Curran, Vivian Grosswald, “Dealing in Difference: Comparative Law's Potential for Broadening Legal Perspectives,” Am. J. Comp. L. 46 (1998): 657 (arguing that comparison can lead to understanding); Fletcher, George P., “Comparative Law as a Subversive Discipline,” Am. J. Comp. L. 46 (1998): 683 (arguing that comparative law may help me understand the struggle between the forces of establishment and subversion).Google Scholar