The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century

The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century

The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century

The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century

Synopsis

Viewing the contested theme Comparative Law as an Enigma , this book explores its fundamental issues as sub-themes, each covered in two variations. After the Overture, the author pulls some strands together in the Intermezzo, uses a free hand in the Cadenza, and asks the reader to draw her own conclusions in the Finale. By this method two fundamentally opposed views are exposed in each Chapter. The what, why and how of comparative law, comparative law and legal education, comparative law and judges, and comparative law and law reform by transposition are explored. The author also examines current debates of comparative law such as law and culture, deconstruction of classifications, mixing systems, limits of comparability, convergence/non-convergence and ius commune novum. By following this two-pronged approach, the book covers many important aspects of comparative law in a refreshing manner not seen in any other work. It is provocative and discursive, bringing together for the reader major developments of comparative law. The book ends by asking Where are we going?.

Excerpt

'…… O! be some other name:
What's in a name? that which we call a rose
By any other name would smell as sweet;'

Comparative law as we know it today can be regarded as a child of the nineteenth century which has reached adolescence in the twentieth. During this period, their subject seems to have given comparative lawyers total freedom and provided them with the seemingly endless pastime of discussing the true meaning, historical development, dangers, virtues, scope, functions, aims and purposes, uses and misuses, and the method of their subject. This has not only been the favourite pastime of comparative lawyers but of others also. Neither did this pastime lose its attraction when comparative law was accepted as part of the undergraduate curriculum in most universities in most legal systems, albeit as an elective course. in our century comparative law will reach maturity.

Although the twenty-first century has been heralded as 'the age of comparative law', amazingly, it is still open to question whether comparative law is indeed an independent discipline at all. Only recently, comparative lawyers have been called upon to re-think their subject and it has also been suggested that the healthiest path for comparative law to secure its future is to penetrate other subjects and to present itself in integrated courses.

W. Shakespeare, Romeo and Juliet, Act ii Sc. 2, Lines 42-44.

the history of comparative law is not to be discussed in this work, but see K. Zweigert and
H. Kötz, An Introduction to Comparative Law, 3 . edn., trans. T. Weir (Oxford, Clarendon
Press, 1998) and the bibliography provided there, pp. 48-62.

G. Samuel, 'Comparative Law and Jurisprudence' (1998) 47 International and Comparative
Law Quarterly, 817; and J. Gordley, 'Is Comparative Law a Distinct Discipline?' (1998) 46
American Journal of Comparative Law, 607.

B. Markesinis, 'Comparative law – a Subject in Search of an Audience' (1990) 53
Modern Law Review, 1.

Ibid, p. 21.

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