Carozza Paolo G. - Comparative legal traditions in a nutshell

________________

JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Distinguished University Professor, Frank R. Strong Chair in Law,
Michael E. Moritz College of Law, The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California,
Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Earle K. Shawe Professor of Law,
University of Virginia School of Law

JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

FOURTH EDITION

MARY ANN GLENDON

Learned Hand Professor of Law
Harvard Law School

PAOLO G. CAROZZA

Professor of Law
Notre Dame Law School

COLIN B. PICKER

Professor & Associate Dean (International)
Faculty of Law, The University of
New South Wales, Australia

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Chapter 4. Procedure in Civil Law Systems

14. Nineteenth Century Reforms

7. The Constitution

FOURTH EDITION

When the first learned societies dealing with cross-national legal comparisons were established in France, Germany, and England in the late nineteenth century, their founders took for granted that comparative methods would advance the understanding of a broad range of legal issues. In that expectation, legal scholars were in accord with the best of their counterparts in other disciplines. Emile Durkheim had gone so far as to claim that, Comparative sociology is not a particular branch of sociology; it is sociology itself. The great legal historian F.W. Maitland had insisted that, The English lawyer who knew nothing and cared nothing for any system but his own, hardly came in sight of the idea of legal history.

The question arises, however: Why, if the benefits of comparative studies are so substantial and obvious, did comparative law remain a relative backwater in so many jurisdictions, and specifically so in twentieth century American legal education? No doubt there are several reasons, not least of which is the increasing burden of keeping up with developments in our own legal system, perhaps one of the most complex the world has ever known. To achieve even minimal competence in another countrys legal system requires a major expenditure of time and effort, including, in many cases, learning another language. But, perhaps the main reason is probably that people in so many countries around the world, and especially in America, have long tended to assume that they could get along quite well without casting their gaze beyond national borders. Like Roman jurists of old, many U.S. lawyers were convinced of the self-sufficiency of their legal and political arrangements.

In recent years, however, that insular posture has become untenable. With unprecedented global interdependence, and with commerce and instant communication linking all regions of the earth, nearly every legal field has acquired an international or transnational dimension. We live in a world where national boundaries are of diminishing significance in relation to technology, finance, trade, the environment, information, consumerism, entertainment, the arts, and ideas of universal human rights. Legal education, accordingly, has had to adjust to demands for the skills required by lawyers in the global village. As the twenty-first century dawns, international legal studies are burgeoning to a degree that early comparatists could scarcely have imagined. Furthermore, the presence of large numbers of foreign students with different approaches to the law is now commonplace in law schools throughout the world. Yet, as Basil Markesinis has written, comparative law is still searching for an audience even where it has found a place of sorts in the university curriculum.

In the years to come, it is likely that comparative law will find many different sorts of audiences as it takes its rightful place among the methods required for the effective study and practice of law. Certain fields have always had a comparative dimension: conflict of laws, international business law, public international law, and area studies where the object is to become familiar with a particular foreign legal system. In those fields, cross-national studies are now assuming greater importance than ever. Contracts and commercial law teachers are having to spend an increasingly large proportion of course time on the international aspects of their subjects if they wish to keep pace with developments in the practice. Those developments now include the domestic application of international agreements such as the Convention on the International Sale of Goods (CISG), including resort to foreign CISG jurisprudence. Increasingly, law professors in many other fields are moving in the direction counseled by Roscoe Pound in the 1930sexploring the approaches of other legal systems to the issues that arise in the course of teaching the law of the land. The increasing importance of supranational law will present new challenges for comparatists as the roles of nation states and national law undergo transformation.

It is fair to say that comparative law, as befits a field assuming a greater place within legal studies and practice, is experiencing something of an identity crisis. The existence of lively debate concerning aims and methods, however, has not hindered comparatists from happily pursuing cross-national studies in a variety of ways and for a wide range of purposes. Nor has it prevented those studies from yielding important contributions to the understanding, practice, and reform of contemporary law. In all likelihood, the diversity of aims and methods among comparatists promotes the vitality of their work. In a world where national and cultural differences are often seen as posing a formidable challenge, comparatists hold up a view of diversity as an invitation, an opportunity, and a crucible of creativity. In heterogeneous nations, such as the United States, where empathetic understanding among groups often seems elusive, comparatists are witnesses to the joys and discoveries awaiting those who make the effort to enter imaginatively into another mental framework.