9. The Comparatist1 (or a plea for broader legal education)

BASIL S. MARKESINIS

'Probe everything and retain the best' ( St Paul, I, Thessalonians, 21)

OSCAR Wilde's views about those who lose not one but both parents are well known.2 How he would have reacted to someone who is about to deliver his fourth inaugural lecture is a matter of speculation. For my part, however, I feel that this record3 allows me some latitude to avoid delivering a lecture on a narrow and purely legal point. This may not be a bad thing since an inaugural lecture is, in essence, a public lecture and thus should be addressed to the entire university community and not only to one's own faculty. This must be particulary apposite in this case since our University, under the umbrella structure of the Europaeum, is attempting to bring together not only lawyers from different systems but also scholars from different disciplines. I have thus chosen to highlight some of the attributes which those involved in my subject should possess. I am reinforced in my view that this is a fitting topic for discussion since up to now much has been written about comparative law--not least by Oxford Scholars4--but little about its thespians. This lecture could be seen as a first, if idiosyncratic, attempt to fill the gap.5

Being an historian manqué myself, I have always been attracted by the study of the lives of great men and women; and the relationship of history and law to this day holds for me a great fascination. If there were some kind of historical equivalent to the 'Desert Island Discs' series I think I would be eager to explain why I would be intrigued to find myself in the company of Disraeli, Erasmus, Luther, Montaigne, Aristotle and the Roman God Janus. It may be a coincidence that this list contains one figure from each of the countries with which I have been fortunate enough to have enjoyed a very close association (though I am sorry that lack of space limits me to only one). More interesting, however, may be the fact that all of the above seem to have had attributes which, I believe, should be found in the true comparatist. In any event, it is not, I think, a coincidence that many of these qualities or attributes were also possessed in abundance by the great figures of my subject such as Kelsen, Rabel, Rheinstein, Ehrenzweig, Wolf and others and, indeed, those who have held (and hold) the chair of comparative law in Oxford. In that sense, therefore, this lecture could be seen as a personal tribute to the Oxford School.

* * *

I mentioned Disraeli first, and since he represents England on my list I feel I ought to start with him. I say England but not the English for, as Lord Blake6 and others who have written eloquently about him clearly suggest, though he tried to be more English than the English, his Jewishness was never far below the surface. To this I largely attribute his perceptiveness, his wiliness,7 his Perseverance,8 and his sense

____________________
1
An inaugural lecture delivered in the University of Oxford on 23 February 1996. The piece is reprinted from The Yearbook of European Law, 1996, and is dedicated to the memory of Jack Hamson--invaluable mentor and loyal friend.
2
'To lose one parent,... may be regarded as a misfortune; to lose both looks like carelessness' Lady Bracknell, The Importance of Being Earnest, Act one.
3
My first inaugural lecture (in Leiden) dealt with The Aliakmon. It was published in ( 1987) 103 LQR, 354 et seq. The second lecture (at QMW) was concerned with Smith v. Littlewoods; and it appeared in ( 1989) 105 LQR104 et seq.. The third ( University College London), dealt with the wider topic of judicial styles; and it was included in ( 1994) 110 LQR607 et seq..
4
Notably by F. H.Lawson, "'The Field of Comparative Law'" ( 1949) 61 Juridical Review, 1 et seq., and Sir Otto Kahn-Freund in his "'Comparative Law as an Academic Subject'" 82 ( 1966) LQR, 40 et seq., and "'On Uses and Abuses of Comparative Law'" 37 ( 1974) MLR, 1 et seq.. To these, I might be allowed to add my own piece: "'Comparative Law--A Subject in Search of an Audience'" 53 ( 1990) MLR, 1 et seq..
5
In Studi in Memoriam di Tuilio Ascarelli (Casa Editrice Dott. A. Giuffrè, 1969), vol. III, 1409-1415, Dr. Kurt Nadelmann described various attempts made some thirty five years ago to compile a volume of essays on the great comparative lawyers of the last two centuries. The attempt failed, partly perhaps because it degenerated into an effort 'to give many nations representation and even to balance the number of representatives' (p. 1411). Overall, however, the aim of the project was to produce a 'bio­graphical historical work'. In this paper my aim is to discover some of the traits which the great comparatists shared with great historical figures and to suggest that we should continue to encourage their acquisition in the future. The need to study the backgrounds of academic lawyers was recently stressed by Lord Rodger of Earlsferry in his John Maurice Kelly Memorial Lecture entitled "Savigny in the Strand" ( Dublin, 1995).
6
Disraeli ( Eyre and Spottiswoode, London 1967). See, also, The Centenary Romanes Lecture, delivered in Oxford on 10 November 1992 under the title "'Gladstone, Disraeli, and Queen Victoria'" ( Oxford, at the Clarendon Press 1993).
7
So obvious in his letters to the Queen, a selection of which has been published by W. F. Monypenny and G. E. Buckle under the title The Life of Benjamin Disraeli, 6 vols ( London, 1910- 20) and A. C. Benson and Viscount Esher Letters of Queen Victoria, 3 vols ( London, 1907).
8
Gladstone was aware of this attribute and phrased it thus: ' Disraeli is a man who is never beaten . . . Every reverse, every defeat is to him only an admonition to wait and catch his opportunity of retrieving and more than retrieving his position.' Blake, The Centenary Romanes Lecture, delivered in Oxford on 10 November 1992 under the title "'Gladstone, Disraeli, and Queen Victoria'" ( 1993), 3.

-107-

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