‘Vouunte 26, NUMBER 2, SPRING 1985 Critical Comparisons: Re-thinking Comparative Law Gilorer Frankenberg* This essay will consider the aims of comparative law and focus on how the de-emphasized cheosetical discussions and foundations of compa- rative work influence the various comparative approaches. Ie will argue that because of comparative legal scholarship’ faith in an objectivity thac allows culturally biased perspectives to be represented as “neutral” the practice of comparative law is inconsistent with the discipline’s high principles and goals. In response, this essay will suggest a critical ‘approach chat recognizes che problems of perspective as a central and decerminative clement in the discourse of comparative law. I. DISTANCE AND DIFFERENCE, Comparative Law" is somewhat like traveling. The traveler and the comparatist are invited to break away from daily routines, vo meet the unexpected and, pethaps, 10 get to know the unknown. Traveling 1 De phil, De. jue, Reseach Fellow of the Max Planck laste fr Sociol Sines Universi of Fnkfriin (West Gey. ‘am grate ro he sides of my senior on Compsrave Cortona! La adr my ‘alls the Hand Law Scho! and atthe Max Pack Iie who generous thee ides with se. lose Balbus, Kins Ede, Eberhard Eicher, Fak Hie, Elmat Koeee, Geld Lope, Fak Michelman and Berd Shue read ei dats nd made alasble seamen. [owe special debt co Geld Fr, Davi Kennedy, Maths Minow sed Jonathan Zimmemae fr their help ao de Jona ce i 1. Comput, a femers, hve ec problems oe fen than ca, thes ak epi wes comple They sect he erm “Comparive Lav” ling Ie 3 “misoee Sctuswt, Comansrve Law| (3d el. 1970) tn “empay phe’), H. Gurriingt, {Connarivé Law 1-2 Qed. 1949) Cane expen pu sess 1 P, ARAION. B. Noumea N. Wotsr, aatte be oxo Conant 10 (930) The coon: hat thn le om mening esl pon earch forme ters, sacs "Comparative Leal Ses" “Compantive Lagal Tdi,” “Compustive Let Histor,” “Cempantve Lngshrion” “CempartveJrirpdeae the “Campari Sady of Law” o simply the “Cmpanse Method Se H. Gerveninee, re, at I-10; McA, GueN0ON, M. GoRDON & C. OSAEWE, CConrasariveLecat Twabrron nt NUTSWELL 2 (1962) Cheer ced = M.A. Gu Dowd A. wow Mean & J. Gotousr, Tue Cvs Law Sestin’ Qe 1977; K. Zwsiceer {& H. Kore, Ax inznopoctoN To CoMessaTive Law 1-10 (1977). New deiton bve flwape—mme ores entiyodinted which ain the cp se ott pte, Se 11 ‘Consrasrvesco, RecuTavEncLsicMune 206-12 (97D. Ye hse deaiions and vedi Sins howe ne slenced the doer tat there ir somehingbaly rong with comparse law, Ine of providing th ltimate dno, {propor ht we do nr baer with changer in werminlogy Bar dea withthe dubs ted. au 440 Harvard Intemational Law Journal ! Vol. 26 infering that, for example, only the Continental systems, with their tendency to abstraction and generalization, develop the grand com- prehensive concepts, while che common law, with its inductive and case-by-case habits, produces low-level legal insticutions especially ‘adapted to solve isolated, concrete problems (ZweigertKér2). In order to be objective the comparatise is basically asked to exercise sober selfrestrainc and is assured that che functionalist method guar- antees both—objecriviey and reseraine. Function is the start-point and basis of all comparative law. It is ee tertium comparationts .. .. For the comparative process, this means that the solutions we find in the differene jurisdictions must be cut loose from their conceptual context and stripped of their national doctrinal overtones so that they may be seen purely in the light of their Function, as an atcempe to satisfy a particular legal need.” How solutions can be “cut loose” from their context and at the same time be related to their environment, how law can be “seen purely" ts fanction satisfying a “parciculac” need, escapes me. It seems to require two contradictory operations: frst, suppressing the context and considering it; and thea moving from the general (function) to the specific without knowing what makes the specific specific. The func- tionalist negates the interaction between legal institutions and provi- sions by stripping them from their systemic context and imegrating them in an artificial universal typology of “solutions.” In this way, “function” is reifed as a principle of reality and not taken as an analytical principle chat orders the real world. Ie becomes the magic carpet that shuttles us becween the abstract and the concrete, that transcends the boundaries of national legal concepts, that builds the system of comparative law, che “universal” comparative legal science or *the general law." Despite these allusions to a universal legal science, the comparative fanctionalist should not be mistaken for a philosopher, her ideal is rather practical: to devise che most efficient legal system and to order the reasonable expectations. In che end che neutral observer reveals herself as a lawyer in defense of the status quo. IV. RE-IMAGINING COMPARATIVE LEGAL STUDIES What is to be done? The critiques of the discourse on comparative law and of the dominant paradigms might suggest that we should 87. K. Zemecurr & H. Kore ape pte 1 a 36-37, {. 2.at 39 Sepals noe 20,2 85; R. VO HEN, pre ote 78, a 151985 | Critical Comparisons 44 sive up legal comparison. because there is no neutral referent and because it seems quite impossible to devise “good abstractions. More ‘over it is still doubeful whether “comparative law” exists at all—and «ven if ic does ie might noc have anyching significant to contribute to legal education and practice. Besides, comparatists, whatever their intentions may be, seem to be invariably and hopelessly erapped by the ethnocentric mechanisms of cognitive control. To abandon comparative legal studies would be wrong-headed, 1 think, for it would freeze the tradition and current conditions into an cecernal pattern, Ie would be equally wrong to go on with 2 comparative ‘muddling-through. And ftom reading through the various approaches ‘and from such highlights as Pound's Comparative Law ix Tie and Space, infer chat ie is not just a more complex and longer process of ‘comparison chat is needed. Comparative Law never hed too little baggage in the overhead compartment. To this very day ie is crammed with thoughts and oughts, with aims and claims For Comparative Legal Studies to become a leaning experience, ‘much mote critical work has to be done. Stated in very broad terms, critical comparisons require @ greater sensitivity to the relationship beeween the self and the other rather than merely intellectual sophis- tication. Instead of continuing the endless search for a neutral stance ‘and objective status, comparatists have to recognize that they are ppacticipant observers, therefore theis studies have to be self-reflective and selfcrtical. Instead of presupposing the necessity, functionality, and universality of law, critical comparisons have 0 question “lego centrism,” the religion guiding and pervading legal educacion and practice. Instead of “gecting straight” the histories and diversities of Jaws, critical comparisons muse call for rigorous analysis of and tolerance for ambiguity. T suggest thar we try t0 free comparative legal studies from ies 1s “an esoteric and relatively undynamic specialty"? g the scholatly discourse. I want to argue that comparing the law can be empowering and liberating, provided char swe do not rake our eerms of and perspective on law for granted bue are open to 2 radical re-evaluation of the domestic legal consciousness. In parcicular, we can begin the journey only by both emphasizing sel citicism—and not affiiming 2 quest for neueraliy—and re-examining. specifically the assumed centrality of “law” in comparison. The re mainder of this section. will discuss these requirements and employ them in describing how one would critically discuss and compare abortion decisions. 89, MeDoogs, ape eae 17,2 926. 90. Mesnyman, pre nae 90, a 482, 442 Harvard International Law Journal | Vol. 26 ‘A. From Bthnocentrism to Self-Critcism Comparatists have to face a basic contention againse their work— that it is necessarily laden with concepts, values end visions derived from their local legal culeure and experience. Instead of coping wi ethnocentrism, mose comparative legal scholars avoid or hope to cit- ccamvent the problem of perspective by positioning themselves as neutral observers. The Encyclopedise implies thar she gives every legal ccalture its due, by the very fact that none is excluded from the panorama and each is merely regarded and not weighed. ‘The doctrin- alist may claim that she merely juxtaposes texts, implying that per- spective is limited to the “comparative sematks’—and even there under jurisprudential contro if noe neutralized by the basically uni- ‘versal style of legal argument. The philosopher relies on strictly rea- soned speculation that leads co universal legal principles, the law of nature or-the portrait of an original position. The legal histori claims to retell @ story that anyone can retell. Protagonists of "universal legal history have no qualms about biases: they rely on human nature, constants and achetypes of legal development that are stid to be universal. How could a particular perspective taine the law's ut versalty? The legal ethnologise derives objectivity from her vantage point a5 a quasi-nacueal scientist who observes and analyzes in detail ‘and cross-culturally the laws and is stages of development, The fanctionalist crusts that functional, based on the essential likeness of all problems and legal solutions in modern societies, and the discourse with other compacatists will automatically rid her of hegemonic think- ing and cultural biases. ‘Yet, despite all chese claims that the comparatist be open-minded and think supra-nationally, the civil and common law scill rule over the comparatists’ world. And the individual as an abstract legal entity bestowed with rights and duties has been transplanted from the West- fem co almost every other legal culeure. The law that "We" have dominates the law thet “Others” have. Our schema dicrate to a degree ‘what we find in others and classify them a5 relevant or marginal, familiar or exotic, and s0 on. Perspective is not only a cognitive or emotional defect or d that can be manipulated or cured by a “right” ethic, attitude or reasoning. It is an ineegeal aspect of every person's history of learning. Being socialized into a particular culture—or simply: growing up— means to become familiar with, to gain a particular perspective on and be biased coward that environment. Are we therefore victims €0 four culture? Can a Western head only think in Western terms? I do not think so. We can transcend perspective, we can learn about, understand and empathize with what we find “strange” or “foreign”1985 1 Critical Comparisons 443 provided char we always recognize chac we are perticipants of one culture and observers of any other. To transcend perspective ‘means to realize chat we use our language, which is culeure-based, t0 ‘grasp whar is new and seemingly other than us. While the self, our cognitive history and ies baggage of assumptions and perspective, ‘cannot be disposed of ac will, we can still try to honestly and con- sciously accoune for it, exposing it co self-critical re-examination, ‘Though using our language is necessary, there is no a priori cruch or universal logic ro how we use it. That is why comparative work could be enlightened by a skeprical attitude coward allegedly authentic incerpzetations and universal categories. ‘Comparison has to be self-reflective. The comparatise has «o reflect upon herself as a subject of and to law. Instead of pretending to the posture of a neutral, objective, and disineerested observer, the com- paratise has to regard herself as being involved: involved in an ongoing, parcicular social practice constituted and pervaded by law; involved in a given legal tradition (a peculiar story of law); and involved in a specific mode of chinking and talking aboue law. Once the comparatise, ks herself how she came to be what she is in tetms of the lew (an individual” with “rights” and “duties,” a “tenant,” “taxpayer,” “par cnt," “consumer,” ete.) and how she came to think as a “legal scholar” about her own law and the other laws the way she does, notions of normality and universality begin ro blur. Je becomes clearer then that ‘any vision of che foreign laws is derived from and shaped by domestic assumptions and bias. ‘To cope with ethnocentrism, we have to analyze and unravel che cultural ties that bind us to che domestic legal regime. A practical and rather fiscinaring beginning could be a deviant reading of com- parative legal licerature focusing on the marginal stuff that is normally skipped for lack of relevance. Forewords and prefaces have interesting stories to tell about how comparison, despite higher sims and claims, is ingpited and organized, in pare a least, by contingent factors that reveal perspective: the comparatist’s legal education and exposure co specific legal culeures, honeymoons and travels, invitations to confes- ences, and so on.”! The marginal remarks indicare why and how the purportedly objective discovery and comparison of the “compared” legal culeute is undercut by the comperatis’s assumptions, “After deciphering scholarly motives, interests and perspectives, one should then move on to systematically exploring the mechanisms for denying perspective. ‘The devianc reading of marginal information would thus precede and prepare a critical reading of the “real” com- 1, Se eno 7 and acompanying et 464 Harvard International Law Jonrual | Vol. 26 parative stuff.?* Once aware of perspective, the student would no Jonger fall for its cover-ups, but be able to trace and criticize how the scholars’ subjective interestedness and particular perspective, though always and already there, is denied and dangerously supplements”? a comperative project that is defined in seemingly objective and neutral Philosophers, sociologists, and ethnologists have made suggestions ‘on how to deal with ethnocentrism. Their discussion has yet to be fully recognized in the discourse on comparative law. Once compara tists have made “hermeneutics” part of eheir vocabulary they will begin to feel uneasy about the distinction becween comparison and evalua- tion, berween understanding and incerpreting, beeween facts and value judgments. Once comparatists are prepared to recognize subjectivity and perspective they will be able co disengage from objectivism and 92. To give some expe fer sch critical rexdng: Wigmore nalts impran” of cer peoples eg lives a iermicely supplemented by te inapery of his oem Cea) ‘ure: Ho Yasuroki comes aco a “a genuine Edvard 1." The baie maxim of Cola pole peop "the exer of crow.” Bri colli i nia sid 0a be engn . Wien, pre note 36, 8, 143, 215, 272,475 ep sdded. “Testook authors cone cls wo admiving da dhe selection and preston ote comps rive mates ae aa thu bjecive but induenced by thir expres and eduction fe othe pape. Sil, ont of chm elim co pres txts vepeeaing the "evant of “mujer lea sytem and tions, which almar fray Ince their domes legal ‘atm, Unallyissnalyéal speach cans rer peoveed by the domestic legal alte. In spite of autho” cams thatthe jarapsed cos po for theses, the compute emer, se “ples” ae prone wo buomedeagres supplement, for hey appear to be ncessy to mae che texts Spain the creat oie. ‘der compari, paul nthe Sl of eompasiecomonl snd publi lm, rly onthe dttowmy of substance aod procedare. Thay atempe so "vole the problem of penpecine merely by comparing cally “peal” legal proces end ineatons. Mee ‘Whiney daingishes the valueneurn coeding of inetins and paces and ene ‘ull rl a5 eo subsastive aspects” This dincon is ment te stip campuaeve teal sis chat fos on fre! aod procedural pecs of cull buses, E. NEWHtNNy, [Constrrunon-sss Priveress, Process, Peacrice 6 (1980). Sas Z. Neat & J “Tmce, ENCUSH an CoxTaNETaL SHOES OF ADMINISTRATIVE Law (1976 M. APPEL: ern, Jubtcat Review penis Coerenronasy Wom. (969) F Geabow, CosPAtATVE Avbunistaative Law (1893). The “procedural” and instars” epi ci aeu- tei rene corpative work beat el proces 2 nto (ot al rele rl procar,ee ereclurl fll the fame ora compare neon. Adil eam ‘ compasine ine epentes with cheats of early tall the compat eo tently ‘absence legal pnp edom, bumsn gs, Sanden wale, ch which "wos Sacoal bounds" ard hus setae prea aun adions aed perspec SB evewatser, ps, t 7-8, 99-90 Copensaciey value), M. CaPLAETT, pn wo (Gsodamers ale) Cie, eration to Conmasarive Huu Rents 5 (R- Cade 1976) Clove of feeson"- 93, Fora rigorous and finan applicion of he “angtons supplement oc (4937p ones oF TaousH: Esavs ow Taine IN Wasraan ap NeN-APESTERY SO- ‘IETS (Hotton & Finnegan eds. 1973), RaTioNaLry (B. Wil cl 1970: R. BERNSTEN, Bevono Osjecuvst ano Reuavvisn—Science HLRMEREUTIC AND PaAxis(1983),C.LEMI- Sraauss, Tastes RoMgUeS (Eng ane 1960)1985 1 Critical Comparisons 445 move beyond the dichotomy between relativism and universalism to « critique of positivist models of knowledge and rationality. From the vantage of that critique one's own language and culture can be re- thoughe as a chance as well as a trap; a chance ro shed new light on a foreign culture from a distence. There is no guarantee against misunderstanding what is strange and new, but there is always the possibility char such misunderstanding can be productive and inspiring. B. From Legcentviso: to a Critique of Law In order to be liberating, comparative legal studies would also have to overcome the legocencrism thar characterizes che comparatists’ 35 well as the non-comparatists’ discourse. By legoceatrism I mean that law is treated as a given and a necessity, as che nacural path to ideal, rational or optimal conflict resolutions and ultimately to a social order ‘guaranceeing peace and harmony. Most of legal scholarship and prac- tice cencers around law—how it works or ought ro work, and how it ‘an be made to work becter. Jurists—legally educated and socialized, inceigued by legal cechniques, overwhelmed by the legal vision of lif—shink and talk and ace in terms of the lav. Diachronic as well as synchronic comparison teaches us, however, that the law is not immutable, bue that ic is in constane flux, thae chere are quite different paths to social conflicts, and, mote importantly, chat other societies seem to get by with little or no law of the type to which we are accustomed. So even the traditional discourse, when carefully read, reveals that these is no absolutely right, superior, and exclusive legal technique and necessity ar work. This may lead the student ¢o incuit thac no such technique exists and, hence, co question the objective rationality and hegemony of any one legal system. Insights based solely on the historical and cultural celativity of law a a framework for social order ate shaky, chough; they are vulnerable to the suggestion char, given a more consistent construction of the body of laws and @ more efficient legal technique, the law we are accustomed to would be necessary and rational. Legocentric thinking and legalism, its political strategy, draw their serength from an ideal- ized and formalized vision of law as a set of institutions, rules and techniques thar function ro guarantee and, in every possible conflict, to vindicate individuals’ rights. If legal provisions do noe live up £0 the promises inherent in the rule of law, this may be interpreted as an unforeunare and atypical accident, a singular event of justice mis- catied. Thus the overall legitimacy and efficiency of the legal order Legal formalism affirms the inevitability and unquestionable or superior rationality of law by focussing on its reified elements—forms, 446 Harvard International Late Journal | Vol. 26 procedures, texts—and by emphasizing the relations berween the agen- cies and agents of law. The legocencrist dichotomizes law and reality, legal and social practice, granting law a realm—a reality, logic, and fanguage—of its own. This dichotomy permits the non-comparatist to conclude thar che legal language is malleable, that legal doctrines and provisions and their application are indeterminate. We are to believe chat che unpredictability of legal trends and decisions is merely an expression of the law's development lagging behind the developing social demands emanating from the environment. All the law needs, then, is to imptove, shape up, and be more in touch with reality. Legal realism and, roa lesser degree, sociological jurisprudence have tundermined this legocentrist-formalise syndrome by connecting law with social purposes, political interests and problems of language! writing. They have challenged the idea of a politically neutral nor- mative struccure determined by legal reasoning and forming a coherent system.” The realist message and, of course, its radicalization by critical legal scholars go to a large extent unnoticed in the discourse fon comparative law. Mainstream comparatsts, 50 it seems, try 10 escape from the critique of the legal order” by comparing and affiem- ing the relative determinacy, rationality, and consistency of modern Givil and common) law. While che critics assere that there is clearly a body of legal doctrine and legal provisions, albeit one shore of the status of “system,” comparatsts talk of systems of law and presuppose that legal norms and docerines provide a determinate answer £0 all questions that may arise and cover all conceivable situations.”* While the critics reject che vision of jurists as applying doctrine and stacutes ro reach resules thae are uneainced by the jurist's interests and biases, comparatists generally do not question chat there is a neutral and auronomous made of legal rationality; some even go on ro claim, often implicitly, char chere is in essence a universal or world style of legal reasoning.” While the critics contend chat the law reflects competing ideas of social life and normative ideals, and contradicrory ideological visions of individuality and collectivity, compecatises generally hold 9%, Se Cen, Fendt None nd th Fncond Asrock, 35 Cout. L, Ree, 809 (493851 Llewelyn, Same Rana! Relny tt Hae L REN” 1333 193008: J. FRAN, Le 4X0 THF Bones MSD 19%. 96. Sr Gordon. Nut Drea Ll Thor TH Fourie OF La: A PROGRESSIVE Ccumov: 281 (D: Kaine od. 198 37 Trek, Whe te Ati 577-79 (1988, ‘Compartis si sensing the sichy problem finder, emphasize ces ad proces, pl fom and urns ovr substantive Hn nd noes Se took on ompuntive ow: J- Manet Dy CLARK, mot 9. CAMWELLTaY se W. COHEN, ape. 99 Zaewcnr & KOM, dp ate 1s 3 1, IPP, 25, 3051, 39. The “asap” kes amply sch a nivel te boeath the pen dees Crd Lgel Sade and api, SO SEAN.L REY 575,1985 1 Critical Comparisons 447 firm to the view that legal provisions and doctrines contain a coherent and justifiable concept of human relations. If this adequately summarizes the comparatises' overall reaction €0 scandard critiques of law, then it would be naive t0 postulace a re- imaginative discourse. To begin with, comparatists have to tise above modestly sociological insights, such 25 che interdependence of law and its environment, and have 0 ery a litle realism—and then more: critical legal theory. Theoretically and practically ehis would mean co stop conceptualizing law as 2 supplement to reality, based on the oppositions of nacure and cultuce and society and law. Legal insticu- tions, techniques and cules are not just culeural phenomena regulating. and ordering * temporarily prior and originally unregulated state of nature. Such a pute state oF original position never existed, however strong the desire for it or however powerful a myth creating ic may be. Ic is equally misleading to place law outside and vis-i-vis reality and society. Social life, so I have argued above, is conscicuted by law also. Some form of order has alias already seruccured nacure, reality and society, although ic is true thac only at various but rather uncertain, points are these seruceures referred fo a5 “law.” ‘Once these oppositional distinctions are given up, law can be seen ‘2s an equivocal phenomenon. Institutions, techniques, and procedures symbolize only one side of the law. The formalized relationships berwien agents and agencies in cerms of the law are only the frozen aspects of a social practice constituted by specific ways of chinking and acting alienated from immediate experience, by a specific nor- mative imagery (‘rule of law,” “rights,” “due process,” e.). Law teachers and students, legel practitioners as well as law-abiding, law- avoiding, and law-breaking citizens are deeply involved in, sustain and develop this practice. Isn't i true chat “legal gains” have been ‘made? That “rights” when enforced have protected individuals and minorities? That feedom of speech is essential? A pervasive legal consciousness keeps us in a Kafkaesque and fascinating world of rights and duties, rules and standards, procedures and subscances, crimes and punishments. Ie is not so much the law's insticucional framework fr symbolic representation, not so much courts, texts end arguments fr conscious use of the instruments of law. Ic is rather its hiddenness and pervasiveness 28 2 social agenda and as our “second nature"— framing our minds, kindling fantasies, structuring and limicing our social visions, and infuencing our acrions—that account for ies mys- tique and magic spell "What good can comparison do in this situation? How can comper- ative legal studies prevent us from being cotally mystified by the law? How can comparative law make us see where and when rights protect or help or disempower or depoliticize? A comparative perspective could “48 Harvard International Law Journal | Vol. 26 be one of the methods for questioning and distancing oneself from the dominant legal consciousness. And, as I have argued, distance does ‘hot come naturally. A comparative analysis may well be and often is as mystifying and involving as its noncomparative sibling. Distance requires taking nothing for granced, least of all the forms and ration- ality of law. A\ liberating distance begins with investigating what the law does co us, ro our world views, and to human relations. Intuitively wwe know or have a hunch thar legal provisions and procedures— ‘whatever their positive effects may be—also disempower by channel- ling conflicts to legal agencies, reify by turning personal relations i rmatcers of law, and alienate by imposing an exclusive and excluding language and logic and by impesing a time-frame that abscracts from real persons and their life. A non-comparative approach might be more prone to discoune these features and effects of law as necessary evils if ‘not as rational mechanisms. I believe that the comparatist is in leged-position by the very fact chat she is confronted with different Tegal forms and categories, with alternative legal and nonclegal serat- egies all of which may be more or less realistic, adequate, mystifying, reifying, alienating, and so forth. All I suggest, therefore, is that comparative legal studies offer a berter chance for distance and for exposing in law deficiencies, contradictions, ideological components and competing visions. If the tradition of comparative legal scholarship does not promise ‘that comparatsts will make much of his chance, anocher consideration ‘might. Comparatists are under pressure. The Cinderella Complex is real. Theie discipline, interesting as it may be, is chiefly regarded as ‘cognitive burden without adequate compensation. That is why com- parative legal research is more and more done outside the law school In order to reverse ehis trend and co root comparative law firmly in Jegal educavion, comparatists have to demonstrate chat comparison is worth the extra effort and that it makes a difference. C. A Non-Legocentric Look at Abortion Decisions ‘To illuserace how comparison could make a difference, | shall briefly discuss how court rulings on abortion have been compared and how they might be compared from a critical and non-legocentric perspective Conventional comparison basically follows the path of docerinalism relying on the method of Juxtaposition-plus.'® From all available coure decisions generally those are selected that allow for some culcural 100, Sir Cannes W. CoM, ps note 9, 365-622; W. MUNIN J. TANIA ss, ape nae 61, 4091