Academic journal article Boston University Law Review

A Symposium on Ran Hirschl's Comparative Matters: The Renaissance of Comparative Constitutional Law: Big Questions Comparative Law

Academic journal article Boston University Law Review

A Symposium on Ran Hirschl's Comparative Matters: The Renaissance of Comparative Constitutional Law: Big Questions Comparative Law

Article excerpt

INTRODUCTION

Ran Hirschl's Comparative Matters is a wonderful and inspiring manifesto on the comparative method.1 As a scholar of comparative property law, I have always had a strong interest in how and why we compare legal concepts and institutions. While I believed comparative lawyers had reason to be satisfied with what the comparative method had already achieved, I have always been eager to see the field taken further. The reasons we employ the comparative method have been insightfully laid out by prior work.2 We compare to learn about other legal systems-not simply for the sake of knowledge, but also because it helps cure ethnocentric biases and fosters critical examination of the underlying assumptions of one's own legal system. We compare to "harmonize" areas of law that are critical to the efficient functioning of the market or the effectiveness of the welfare and social protection systems in multi-state polities and multi-level systems of governance. Finally, we compare to expand our institutional imagination, by providing policymakers with a broader menu of existing legal institutions capable of achieving desiderata such as greater distributive justice, efficiency, and democratic participation.

I was also satisfied with the variety of available methods for comparing legal systems. Between the First International Congress of Comparative Law held in Paris in 1900 and the 1990s, several comparative methods had been developed and refined so that scholars could pick and choose tools from a rich methodological toolbox to best achieve the objectives of their inquiry.3 Functionalism, the comparison of rules or institutions that perform a similar function in different legal systems, is often a good place to start because it helps the researcher identify manageable research questions.4 Culturalism, which compares legal systems as "cultural wholes," sheds light on the rich cultural fabric of legal institutions, allowing comparativists to develop richer causal explanations for legal change and warning lawmakers about the risks of hastily "transplanting" legal institutions.5 Structuralism debunks the myth of the legal rule by showing that each rule is a complex structure composed of different "formants": the rule formulated by the legislature, the rule as interpreted by courts, the implementation of the rule by administrative agencies, the discussion of the rule by law professors, etc.6 It also makes plain that each rule consists of both an operative prescription and a justification for that prescription, thereby emphasizing the role played by ideology and rhetoric.7 The critical approach to comparative law relies on comparison to expose the implicit biases and assumptions of the observer's own system and to denounce the illusory and ideological nature of "legalism," namely, the claim that law is both neutral and necessary.8 Finally, comparative law and economics seeks to explain in precise terms the convergence of legal rules by using efficiency as a key metric. Comparative law and economics also gives a comparative twist to the notion of efficiency, showing that the same rule may be efficient in one system but not in another, because efficiency is a matter of fit in a larger institutional framework.9

Of course, I was also excited to see the comparative method make further advances. I felt a sense of urgency and responsibility toward the fundamental questions that had drawn me to the study of property law, such as the dramatically rising levels of societal inequality in the areas of income, wealth, and power, and the dilemmas of sustainable resource use. I was eager to see comparative lawyers turn to these questions,10 as they seemed like the types of issues that would benefit from a comparative analysis of long-term structural social transformations. I believed comparative private law scholars had specialized knowledge on these questions that could be usefully shared with colleagues in history, political economy, and comparative policy analysis. …

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