Comparative Law in the University of Chicago Law School

Volume 1 • Number 2 Chicago • Illinois Winter 1952

such problems as those of the origin and growth of lan guage in general or its role in human society. It was then discovered that languages could be grouped in families, that languages change, and that their changes can be related to certain changes in the development and living conditions of the peoples in question, that one could find certain structural laws, etc. In other words, in addition to the scholarly investigation of particular languages, there developed a new science of language in general which in many ways came to throw new light upon the structure, the history, and the function of all the several languages, including our own. Similarly, comparative religion was built up on the side and above the long-established theologies of Chris tianity, Catholic and Protestant, of Judaism, Islam, Hin- Max Rheinstein, Max Pam Professor of Comparative . and attention to the less Law. duism, Buddhism, paying developed religions of antiquity and of more primitive or archaic civilizations, and trying to investigate and define the as such, its Law in the phenomenon "religion" general Comparative University of role in human life, its types, structures, development, Chicago Law School and relations to other phenomena. In law we have an analogous situation. In each country In 1934 the Max Pam Professorship for Comparative the men of the law, both as practitioners and as scholars. Law was established at the University of Chicago Law are concerned only with the positive rules of the particu and since that time School, instruction in comparative lar country's legal systems. There are as many sciences law has been offered at the School. Since 1949 there has of law as there are legal systems. While the sciences of also been maintained a small research staff in the field. physics, of musicology, of medicine, of mathematics, or The courses and seminars offered in comparative law of practically all others are the same all over the world, are partly concerned with sociology of law and partly the sciences of American, of German, of French, of with to introduction modern civil law. Japanese, or of Uruguayan law are all different from one Like sociology of law, comparative law finds a parallel another. An eminent expert in American law is still a in such other as "comparative" sciences comparative re layman in Mexican or Swedish or any other law. ligion or comparative linguistics. However, in addition to our being lawyers, we are For centuries have studied philologists the grammar, human beings with curiosity and the urge for knowing structure, vocabulary, and history of this or that particu and understanding the world in which we live, and in lar language, especially Latin, Greek, Hebrew, Arabic, that capacity we may well come to ask questions about and the modern languages of the Western world. Com the phenomenon "law" as such, especially when we find parative linguistics arose when "exotic" languages, such out that abroad law is not the same as here or that in as those of the East, the American Indians, or the natives the past it has not been the same as it is today. Why is it of Africa or Oceania, were made the subject of scientific different; why does the law change with changing times; and study when, under the impetus of the acquaintance what makes it change; why is it now the way it is; what with the seemingly totally different, philologists came to is this thing "law" in general; what is its role and func search for the common features and were then driven to tion in society; can we evaluate it in general and as to its 2 The Law School Record Winter

particular manifestations; is there "good" and "bad" are determined by economic facts, especially the relations law; what is the standard for such value judgments? of production? Or can it, perhaps, be said, as some have in the that These, or at least some of these, questions have been believed answering Marxists, religious phe asked for centuries. They have traditionally been .re nomena are determinants of all others? Is it possible and or at all to search for of social garded as constituting the sphere of jurisprudence permissible anyone sphere philosophy of law, and they have been treated in the life as determinative of all others? Or do we have to method of philosophy, i.e., speculation in the sense of recognize a more subtle and more complex interplay of one another? at concluding, through the use of reason, from the observ all social phenomena among Having, able and known to the unknown, or through deriving an earlier date, investigated the interplay between reli and economic in his ,answers to specific problems by conclusions from first gious phenomena, Weber, magnum principles. This is not the place for a critical evaluation opus, undertakes, among other things, to search for the of the role and merits of legal philosophy. It will suffice interplay between legal phenomena, on the one hand, and on to state that we are driven to it by that irresistible urge and economic, religious, political, administrative, of to know and understand that mysterious universe in the other. Perhaps, the central thesis of his sociology the on the of law which we are finding ourselves and, confiding in that law is constituted by section types whom the of a cherished gift of reason, to find answers of at least sub specialists by legal system given society jective certainty to questions as to which we have to take is cultivated or dominated. Wherever a legal system has been or it a stand if we are to live, however insoluble they may be manipulated by priests theologians, presents to the finite human mind. certain characteristic features which are significantly dif In comparative law we are approaching the same ferent from a law practiced by tribal assemblies of one questions about law in general, but in a more modest or another type, or a law dominated by gentlemen of com leisure as in or a as in way. Rather than being a philosophical science, Rome, squirearchy eighteenth or or the parative law is an observational one. But its subject century England, conveyancing counselors, matter is constituted by the laws of all times and climes. bureaucratic officialdom of Continental monarchies, or Refraining from speculation, it endeavors to collect, ob scholars of the type of the nineteenth-century German etc. In constant relation with his central serve, analyze, and classify them, and, like other sciences Pandectists, in the narrower sense of the word, it searches for typical theme, Weber discusses such problems as the develop collocations, coincidences, and sequences, or, in other ment of freedom of contract in different civilizations, the the words, for "laws"; laws, of course, not in the sense of growth of the concept of corporate personality, modes which are formed in different statutes, precedents, or other ought norms of human in legal concepts laws, behavior, but laws in the sense in which the word is comparing especially the formalistic rationality of the used in the natural sciences, laws of the kind of New later civil law with the different techniques of the com ton's laws of gravitation or Gresham's law in economics; mon law, of ancient Roman law, of the sacred laws of and the Roman etc. The laws, as it may also be appropriate to observe, not in the India, Islam, Judaism, church, sense of immutable intrinsic necessities, but in that sense richness of the contents of Weber's book, the acuteness in which the word is understood in modern natural of his observations, the objective exactitude of his meth of own can science, i.e., simply as coincidences or sequences which od, and the suggestiveness his thought only observation reveals as typically occurring under certain be hinted at. The wealth of the book cannot be exhausted conditions. in a short seminar of forty hours. But it can be used The seminar courses which we have offered in this to stimulate the students' thought, to fire their imagina sociology of laws at the University of Chicago Law tion, and to open their eyes to the vast mass of the phe School are of a twofold kind. In connection with current nomena which are comprised within the law and to work of translating and annotating the part on sociology make them aware of its universality as well as of its of law in Max Weber's monumental treatise of sociology, infinite variety and of its role and function in civilization we have several times offered a seminar on Max Weber's in all its variants. sociology of law in which we have read and discussed The second kind of seminar in "comparative law the text which will shortly be available on the book .sociology of law" has been built around the theme of the to rule of violence a market. This short text ranges over a vast field. Weber's human endeavor replace the by knowledge is truly phenomenal. He literally draws on regime of law and order. It seems that, perhaps uni the laws of all times and climes, on modern civil and versally, we can find a typical sequence of development. common law, on Roman, Greek, and Germanic laws, as In almost all primitive societies of the past or present of we seems that we well as on Islam, Hindu, or Chinese law, or on the laws which have knowledge, it find small of primitive tribes. All this vast material is centered, kinship groups within which the use of violence is re as the relations of the however, around one basic problem which constitutes garded illegitimate, while in group the unifying theme of the entire book with its chapters with others resort to violence is the only, or at least the to and the blood on the sociology of power, of political, administrative, usual, way adjust disputes. Vengeance seem universal meth- and economic organization, and even of music. Is it feud to constitute the practically true, as the Marxists maintain, that all social phenomena i Continned all page 11) 11 The Law School 1952 University of Chicago

we courses in law In the second group of comparative students an introduction have been trying to give to our that of sys to the so-called civil law, that is, group legal in the Western world outside the tems which prevails and the coun common-law countries-the United States we can tries of the British Commonwealth. Obviously "teach" German, Swiss, or Mexi not even try to French, hours. We are an American law school, can law in forty introduction to law are and within it courses of foreign make our students justified only in so far: as they help to is thus to be better American lawyers. Our instruction which can be formulated geared toward practical ends,

as follows: make our students 1. Contact with foreign law should meth our and aware of the fact that institutions, laws,

ones in the world. ods are not the only possible institutions and methods of a highly 2. Studying some students' un developed foreign law should deepen our institutions and meth derstanding of the corresponding ods of our own law. aware of the fact that 3. Our students should be made in business when they have to deal with foreign lawyers or in litigation, they matters, in diplomatic negotiations, to think and to ar cannot expect these foreign lawyers we do. gue in the ways on their own initi 4. Our students should be induced their with the ative to broaden and deepen acquaintance or useful ideas and treasure house of stimulating experi countries have accumulated and ences which foreign own from which we may profit for our purposes. various In our These aims can be pursued in ways. of to the incisive opinion the best way is that resorting narrow but treatment of one or several fairly important themselves in all modern sets of problems which present the students in countries and which are placed before are familiar, i.e., through that way with which they that there be in the cases. This method requires placed: taken from Corporate Law (Continued from page 2) hands of the students a collection of cases, and with issues representative foreign systems, dealing ods of "settlement" between kinship groups dispute decision both here and there. other which come up for They in their internal structure, on the hand, which, which are must be centered around problems significant What was the from this prim constitute peace units. way several themselves and the treatment of which in the areas of the mod in ite state of affairs to the great peace is to throw upon their the stations of systems concerned apt light ern nations: How did there develop way methods of federation? In our characteristic legal thought. mediation, arbitration, adj udication, of Law in In our courses at the University Chicago we have been to trace these processes seminar trying from various fields of School we have used materials pri then to the or the Middle Ages, study spheres antiquity For several we concentrated upon prob such as the vate law. years of violence still existing in present society, law of those which are con and lems of the torts, especially gang warfare, permissible self-help. duel, lynching, treatment of cases and with discuss the nected with the negligence this basis we then proceeded to possible Upon other we took certain in the the of privacy. In years in which the rule of law might be achieved protection ways contract mistake, im relations and of the law of (duress, last of force left today-labor problems great spheres for or con information has of sales (warranty quality, risk), international scene. expert possibility), the Necessary substance and of the facul flict of laws (characterization, procedure, been in this seminar by members provided The of the materials, of renvoi, personal status). preparation ties of other departments of the University Chicago, translation of the cases, was, of and the of especially the foreign especially the Oriental Institute Department a cumbersome and time-consuming job. Additional stimulus has been injected by the course, Sociology. have been com In recent lawyers students of SCIence, years young foreign of sociology, political train- participation law not to obtain a full other fields. ing to American schools, theology, oriental studies, and 11 The Law School 1952 University of Chicago

as follows: make our students 1. Contact with foreign law should meth our and aware of the fact that institutions, laws,

been elected to the themselves with ALLISON DUNHAM has recently in American law, but to acquaint and ing Board of Governors of the Metropolitan Housing institutions of this and with the meth the basic country Cases and Materials and Council. His recent book, ods of its thought. Without special guidance Planning legal Real Estate Transactions, was published by and will return on Modern advice their efforts may be wasted, they the Foundation Press in uary. At our Law School we Jan to their homelands disappointed. this kind of Material on the Law have paid special attention to comparative SHELDON TEFFT's new Cases and service for our law collaborated with W. law. We have established counseling of Property, on which he Ralph seminar in which the of students from abroad and a special Aigler and Allan F. Smith of the University Michigan American economic, and issued the West strange world of legal, political, Law School, has been by Publishing to be to them social institutions is sought explained Company. with the phenomena through comparison corresponding Committee ROBERT MING, who is a member of the joint their own countries. of and Illinois Bar As on Civil Procedure of the Chicago which law can fulfil in Ameri The task comparative Committee at was host to a of the constitutes but a small In sociations, meeting can life is vast. part. Teaching and 9. the immense The Law School on March i, 8, order to make available to this country and and to . Max Pam Professor of store of the world's legal thought experience Last summer MAX RHEINSTEIN, science Law make America's contribution felt in the emerging Law and Director of the School's Comparative research and on of law as a world-wide phenomenon, publi Research Center, was in Europe lecturing legal of and on a vast scale. The University States. Mr. Rheinstein visited cation are required thought in the United its to contribute its share through universities of Kiel, Gottingen, Chicago is trying spoke at the Frankfort, Center. Under the direction of West Berlin, Comparative Law Research Tiibingen, Erlangen, the Free University Professor of Law the of Oslo, of the Max Pam Comparative and Marburg. He also visited the universities Law has been and Helsinki. translation of Max Weber's Sociology of Copenhagen, Lund, Upsala, Stockholm, order to make this work useful for completed, and, in lecturers KARL N. LLEWELLYN was one of the guest there has been added a voluminous apparatus America, lecture series, "The annotations. In connection with the on the University College public of explanatory Ideas and Issues." Mr. Commis Western Tradition-Its Great American Bar Association's Interprofessional 15 on "The Quest for there has been Llewellyn spoke on February sion on and Divorce Law, Marriage also at the of in the field of Justice." Mr. Llewellyn spoke University undertaken a of study developments Law in Our on March 4 on The Place of Society. divorce in the principal foreign countries. Illinois on in the field of con Order of the Other research work is carried ERNST W. PUTTKAMMER, President of the Coif at the Uni flict of laws. Coif, recently installed a chapter of The eleven other law the University School. Together with schools, versity of Tennessee Law has combined to form the of Chicago Law School the BERNARD MELTZER'S article, "Required Records, Association for the of American Comparative Study Self-incrimi Ameri McCarran and the Privilege against which has started to publish the Act, Law, Inc., just as a has been cited and referred to Law and which thus aligns nation," recently can Journal of Comparative Clark of the Second Cir the culti article" by Judge this with those other nations in which "thoughtful country citation in United has had cuit Court of Appeals. The appears vation of the science of comparative law long et Nos. 300-302, C.C.A, and States v. Frederick V. Field al., important and respected organs of scholarly practi 2d Oct. Term 1951, .decided October 30, 1951, p. 1929, cal publications. MAX RHEINSTEIN note 4. Law Max Pam Professor of Comparative on SOIA MENTSCHIKOFF spoke at Peoria, Illinois, Janu of the Illinois State Bar Associ ary 19, at the meeting She Section of Commerce and Bankruptcy Law. . ation, Notes of Article 9 on Secured Faculty participated in a panel discussion Uniform Commercial Code. Professor of Transactions of the WILBER G. KATZ, James Parker Hall Law, lecture at the Institute on Accounting gave the opening for Lawyers sponsored by the Washington University Proc Law School. Mr. Katz spoke on "The Accounting The Law School Record Statements" on March in St. ess and Financial 21, 1952, Louis. A Quarterly Publication the Alumni the DIRECTOR in a for of EDWARD H. LEVI and AARON participated Il Law School on 1952, niuersity of Chicago symposium on antitrust laws January 18, spon Associations. 37 • Illinois sored jointly by the Chicago and Illinois Bar Chicago at the annual ban Mr. Levi also spoke on February 15 LEWELLYN Bar Association. LOCAL PHOTOS BY STEPHEN quet of the Cook County