21 April 2008

Fauvarque-Cosson's lecture on "The Rise of Comparative Law" (with Comments by Mathias Siems and CompLawBlog)

Professor Bénédicte Fauvarque-Cosson (Paris II) has delivered the 7th annual 'Walter van Gerven' Lecture, entitled "The Rise of Comparative Law: a Challenge for Legal Education in Europe". The lecture has been published by Europa Law Publishers (a publication noted earlier on EU Law Blog).

This is from the book's back cover:

"Over the past years, academics have reacquired a significant role in the European law-making process. A truly European legal research, based on various networks has developed. This Lecture examines the discrepancy between, on the one hand, the rise of European and comparative law, and, on the other hand, the limited means allocated to the supranational education of future jurists. Legal insularity is no longer an option. Comparative law should therefore no longer be regarded as a purely academic and optional discipline but as an effective way to lead professors, judges and legislators out of national legal isolation. Moreover, the strength and durability of a truly European legal thinking depends largely on the comparative dimension of education".

ComparativeLawBlog has asked Dr. Mathias Siems (Edinburgh), author of the recent article "The End of Comparative Law" (JCL 2007, 133-150), to give a short comment on professor Fauvarque-Cosson's elegant and provocative essay, which he has been kind enough to do. Immediately below his reply, I've added a few thoughts of my own.


This is what Mathias Siems wrote:

Fauvarque-Cosson’s lecture on the rise of comparative law provides a clear and an interesting discussion on the role of comparative law in contemporary legal scholarship and teaching. In many respects I agree with Fauvarque-Cosson. However, in two important respects I feel free to disagree.

First, this concerns the statement that – as a matter of fact – we can now observe “the rise (or renaissance) of comparative law”. In one of my pieces, of course, I stated that the early 21st century is seeing the decline or maybe even “the end of comparative law”. In Fauvarque-Cosson’s lecture there are, for instance, the claims that “comparative law is increasingly praised as an effective way to lead out of national isolation”, that “legislators seek inspiration from foreign or international modes” and that “judges and arbitrators use comparative law as a device to justify their decision”. However, there is no evidence provided that this is indeed the case. In contrast to this, my article does provide some evidence that in reality comparative law often plays only a marginal role. Eventually, this is also conceded by Fauvarque-Cosson. For instance, she too states that “the standing of comparative law is still rather modest”, that “the study of national legislation still remains the core of French legal education” (and I would to add that this is similar in most, if not all, European countries) and that the “members of various European networks (…) only constitute a minority”. So, we should really not confuse “is” and “ought”. Let’s face it: 95-99 % of all lawyers are mainly interested in their domestic legal system. “Us comparative lawyers” have, however, the aim (!) to change this.

Second, Fauvarque-Cosson indeed addresses what is needed to foster the importance of comparative law. In particular, she highlights the role that comparative law should play for European private law. She elaborates that there is a need for (1) more books on the European law as such (directives, regulations etc.), (2) more books like Kötz’s European Contract Law, (3) more casebooks and (4) “specific commentaries on various codifications”. I would not deny that these books can be useful. However, from an academic perspective we should also (not only!) go beyond this traditional focus on collecting materials about different legal systems and different legal sources. The main aim of academic legal research is legal originality (see my piece
here). For instance, “us comparative lawyers” need to address that economists are increasingly pursuing quantitative comparative legal research. That’s really the “elephant in the room” because both in reality and in the academic world this “numerical comparative law” is by far more important than the “country-report methodology”, which has already dominated comparative law for decades (see my papers here and here).


Some additional points:

There are a lot of stimulating ideas in both Fauvarque-Cosson's lecture and Siems's reply (and the papers mentioned there). I'm inclined to agree with Siems that the claim for the 'rise' of comparative law is not fully sufficiently substantiated in the lecture, but then again, claims for the 'rise', 'stagnation' or 'death' of disciplines are notoriously hard to make (one wonders why comparative scholars remain so keen on advancing them!). As far as Fauvarque-Cosson's main claim of a 'discrepancy' between the importance of comparative law and the attention given to the discipline in legal education is concerned, one could argue that this claim is somewhat difficult to reconcile with the simultaneous observation that a true 'European legal scholarship' has already come into existence, apparently in spite of this lack of institutional support. Of course, the counterargument would be that things might be still 'better' if more comparative law was given a more prominent position. That might be true.

I have two small comments to make. The first is a point of detail, but because it concerns an issue raised in the essay's first paragraph, I feel free to offer it. Fauvarque-Cosson writes: "At the beginning of the twenty-first century, the renaissance of comparative law seems to be well on its way (...) legislators seek inspiration from foreign or international models; judges and arbitrators use comparative law as a device to justify their decisions, or - which is even more remarkable - to reach a decision"(my emphasis). I don't understand why 'reaching' decisions on the basis of comparative study would be more remarkable than 'justifying' them. In my view it's exactly the other way around. Reaching decisions by studying comparative law is hard to distinguish from practices such as using hypotheticals or the opinions of scholarly writers. It is the explicit justification of decisions by reference to a foreign law, however, that raises issues of the authority to be accorded to foreign legal materials. Or not?

My second point concerns the familiar issue of the politics of unification and diversity. Fauvarque-Cosson's essay might be a little quick in accepting the unqualified 'good' of legal unification and in conflating attention to national law and legal culture with 'parochial' perspectives. Notwithstanding the benefits of European legal integration, a lot can still be said in favour of detailed attention to national law, and in favour of sustained legal (cultural) diversity.

In the end, as an eloquent plea for increased attention to comparative law, Fauvarque-Cosson's essay is surely to be welcomed. I'm not entirely sure, however, whether the line of reasoning based on legal integration is the strongest argument that can be made in favour of comparative legal studies. As a discipline, comparative legal scholarship must be of value also in the absence of a shared goal of a "general law in Europe to exist once more" (at p. 14).

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