The discipline of comparative law in the United States - article ; n°4 ; vol.51, pg 1041-1052

A. Bermann

Description

Revue internationale de droit comparé - Année 1999 - Volume 51 - Numéro 4 - Pages 1041-1052
12 pages
Source : Persée ; Ministère de la jeunesse, de l’éducation nationale et de la recherche, Direction de l’enseignement supérieur, Sous-direction des bibliothèques et de la documentation.

Sujets

• Droit et juridique

Informations

• Publié par: Revue-internationale-de-droit-compare
• Publié le: 01 janvier 1999
• Nombre de lectures: 16
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

George A. Bermann
The discipline of comparative law in the United States
In: Revue internationale de droit comparé. Vol. 51 N°4, Octobre-décembre 1999. pp. 1041-1052.
Citer ce document / Cite this document :
Bermann George A. The discipline of comparative law in the United States. In: Revue internationale de droit comparé. Vol. 51
N°4, Octobre-décembre 1999. pp. 1041-1052.
doi : 10.3406/ridc.1999.18197
http://www.persee.fr/web/revues/home/prescript/article/ridc_0035-3337_1999_num_51_4_18197R.I.D.C. 4-1999
THE DISCIPLINE OF COMPARATIVE LAW
IN THE UNITED STATES
George A. BERMANN
I. INTRODUCTION
Comparative law as a discipline in the United States, while enjoying
substantial success at the present time in achieving certain of its fundament
al objectives, is in other respects facing sharper challenges than at any
previous time in its history. In this article, I examine this seemingly
paradoxical state of affairs, and more specifically attempt (1) to identify
and measure the successes to which I refer, (2) describe the unprecedented
critiques that are nevertheless being leveled at the comparative law disci
pline at the present time, (3) seek to explain the current state of affairs
and, finally, (4) advance prescriptions for reform.
In the course of my analysis, I shall have occasion to invoke the
four aspects of comparative law that the organizers of this symposium
have specifically identified — the meaning and purpose of comparative
law, the role of law in professional education,
law and law reform, and comparative law and the practice of law. However,
this article is not specifically organized around the prescribed themes, for
the simple reason that, while comparative law's success as a discipline
may to some extent be measured in these terms, its major challenges and
critiques reflect to a very large extent fundamentally different concerns
and preoccupations.
* Beekman Professor of Law and Director, European Legal Studies Center, Columbia
University School of Law, New York, New York, U.S. A. 1042 REVUE INTERNATIONALE DE DROIT COMPARÉ 4-1999
II. MEETING THE TRADITIONAL AIMS OF COMPARATIVE LAW
It has long been acknowledged in the U.S. that the term comparative
law does not describe a field of law, but rather a method of legal analysis.
As a method, comparative law may serve a variety of objectives, running
the gamut from the intellectually ambitious (e.g., achieving a better
understanding of law and of law's relationship to society, more fully
elucidating general legal concepts), to the pro grammatically ambitious
(e.g., unifying or harmonizing national law on different legal subjects to
facilitate transnational transactions and relations, distilling general princi
ples of law by which those transactions and relations may then more
suitably be governed), to the socially useful (e.g., law reform, whether
practiced by legislators, judges, or academic commentators), to the profes
sionally useful (e.g., facilitating the application of foreign law in counsel
ing, drafting and litigation settings whenever and wherever foreign law
might be considered to be "applicable"), to the culturally edifying (e.g.,
demonstrating the relativity and contingency of one's own law and expo
sing its unstated assumptions and possible biases). Broad as these categor
ies of activity may be, they probably are nevertheless under-inclusive,
failing to capture the full range of legal exercises to which comparative
law as an instrument may have something to contribute.
It is manifestly difficult to measure the extent to which
law is in fact being deployed in the service of these various objectives,
and harder yet to measure the success that this deployment has had. In
some respects progress has unquestionably been made. For example, U.S.-
trained lawyers enjoy greater opportunities to learn about foreign law at
university law schools through the comparative method than they pre
viously enjoyed, and what those who avail themselves of these opportunit
ies are learning is on the whole fuller and richer than what their predecess
ors were in a position to learn. More important, students are encountering
foreign law through the comparative method not only in courses denominat
ed in terms of foreign or law as such, but increasingly also
in various subject matter-specific courses, according to the availability of
materials and the inclination of their instructors to introduce foreign mater
ial and a comparative perspective into their teaching.
But even though it may be difficult to measure the development of
comparative law in U.S. legal education, the legitimacy and utility of the
enterprise does not seem to me to be seriously questioned by members
of the law school academic community. Of all the broad purposes of
comparative law that I have identified, it is the last two mentioned —
the professionally useful and the culturally edifying — that seem to have
received the most widespread support in U.S. legal education and that
are most widely regarded as being reasonably well achieved. In other
words, comparative law has been most warmly embraced as a tool (a) for
better equipping legal professionals to counsel, draft and litigate when
foreign law may be considered applicable, and more generally for commun
icating with foreign lawyers, and (b) for demonstrating to students of
law, whatever their likely career paths, the relativity and contingency (as
well as the unstated assumptions and possible biases) of domestic law. G.-A. BERMANN : USA 1043
While some critics believe that U.S. legal education is not fully exploiting
comparative law's potential for putting domestic law in "perspective" ,
virtually all commentators support and encourage efforts in this direction.
When we turn to what I have called the programmatically ambitious
or the socially useful, it is less clear how energetically the legal academic
community in the U.S. is pursuing the comparative law enterprise. Partici
pation by the U.S. legal profession in international unification or harmoniz
ation projects would have to be described as uneven at best 2, although
very recent trends appear to be favorable. Much the same can be said
about participation in efforts to identify general principles of law for the
governance of transnational transactions and relations. Thus, for example,
recent initiatives in the direction of codifying and synthesizing the law
of European- various nations, rather than particularly American-driven in the field 3. of private law, is very largely
As for domestic law reform as such, no one has measured the extent
to which legislatures actually resort to foreign law and the comparative
law method, but the impression nevertheless remains that foreign law and
the comparative method are seriously underutilized in the U.S. in pursuit
of these purposes. It is curious that while both the potential contribution
of law to law reform and the failure of the U.S. legal commun
ity to exploit this potential are fully acknowledged, rather little is being
done to alter the state of affairs. Regret is a clear sign of awareness of
lost opportunities, but it still has not proven to be a sufficient impetus
to change.
But where the discipline of comparative law has been found most
deficient lately in the United States is in respect of its contribution to
the remaining category of comparative law enterprises, namely those that
I have characterized as the intellectually ambitious. These enterprises
1 G. FLETCHER, "Comparative Law as a Subversive Discipline", 46 Am. J. Comp.
provinciality" L. 683, 690, 696 ; comparative (1988) ("The law should striking expand feature the of range American of "the jurisprudential thinkable") ; J. debate GORDLEY, is its
"Is Comparative Law a Distinct Discipline?", 46 Am. J. Comp. L 607 (1998) (foreign law
could be used more effectively to illuminate unstated or poorly stated propositions of
domestic law). See generally, P. G. CAROZZA, "Continuity and Rupture in 'New Approaches
to Comparative Law', 1997 Utah L Rev. 657, 663 (1997); J. GORDLEY, "Comparative
Legal Research : Its Function in the Development of Harmonized Law", 43 Am. J. Comp.
L. 555 2 See (1995). M. REIMANN, "Stepping Out of the European Shadow : Why Comparative Law
in the United States Must Develop Its Own Agenda", 46 Am. J. Comp. L. 637, 644 (1998).
3 See M. BUSSANI, "Current Trends in Comparative Law : The Common
Core Approach", 21 Hastings lnt'l & Comp. L Rev. 785 (1998) ; H. KOTZ, "The of European Private Law : Presented at the third General Meeting of the Trento
Project", 21 Hastings lnt'l & Comp. L Rev. 803 (1998) ; O.LANDO, "The Common Core
of European Private Law and the Principles of European Contract Law", 21 Hastings lnt'l
& Comp. L. Rev. 809 (1998) ; U. MATTËI, "The Issue of European Civil Codification and
Legal Scholarship: Biases, Strategies and Developments", 21 Hastings lnt'l & Comp. L
Rev. 883 (1998). For a more skeptical European view, see P. LEGRAND, "Structuring
European Community Law : How Tacit Knowledge Matters", 21 Hastings lnt'l &