Comparative Jurisprudence(I) 1891
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University of Pennsylvania Law School Penn Law: Legal Scholarship Repository Faculty Scholarship 1995 Comparative Jurisprudence (I): What Was it Like to Try a Rat? William B. Ewald University of Pennsylvania Law School, [email protected] Follow this and additional works at: http://scholarship.law.upenn.edu/faculty_scholarship Part of the Civil Law Commons, Civil Procedure Commons, Commercial Law Commons, Ethics and Political Philosophy Commons, Jurisprudence Commons, Law and Philosophy Commons, Legal Commons, Legal Education Commons, Legal History, Theory and Process Commons, Legal Theory Commons, Natural Law Commons, and the Public Law and Legal Theory Commons Recommended Citation Ewald, William B., "Comparative Jurisprudence (I): What Was it Like to Try a Rat?" (1995). Faculty Scholarship. Paper 1405. http://scholarship.law.upenn.edu/faculty_scholarship/1405 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. COMPARATIVE JURISPRUDENCE (I): WHAT WAS IT LIKE TO TRY A RAT? WILLIAM EWALDt PART ONE I. THE RATS OF AUTUN .......................... 1898 PART TWO H. COMPARATIVE JURISPRUDENCE .................... 1948 A. Remarks on Strategy .......................... 1943 B. The Boundaries of ComparativeJurisprudence ....... 1954 1. Criteria for a New Subject ................ 1955 2. Distinguishing Comparative Jurisprudence from the Philosophy of Law ................ 1956 III. THE PRESENT STATE OF COMPARATIVE LAW ............ 1961 A. The Malaise ............................... 1961 B. The TraditionalApproaches to Comparative Law ..... 1965 1. Casebooks and Pedagogy .................. 1965 2. Works of Scholarship ..................... 1975 3. The Problem of Public Law ............... 1987 t Assistant Professor of Law and Philosophy, University of Pennsylvania. This Article, an attempt to rethink the foundations of comparative law, is intended as an introductory and elementary treatment of issues that are to be discussed at greater depth in a forthcoming series of articles under the general heading of "Comparative Jurisprudence." The next articles in the series will deal with, respectively, Alan Wat- son's theory of legal transplants, the intellectual foundations of German corporate law, and the legal philosophy of Immanuel Kant. The present Article may be regarded as an attempt to explain why these seemingly disparate topics are in fact, from a certain point of view, closely related. I am grateful collectively to my colleagues at the University of Pennsylvania, and in particular to Jacques deLisle, Colin Diver, Michael Fitts, Robert Gorman, Heidi Hurd, Leo Katz, Fritz Kfibler, Howard Lesnick, Bruce Mann, Michael Moore, Eric Posner, Ed Rock, and Michael Wachter. I owe special thanks to Stephen Burbank and Stephen Morse for commenting, not just on one draft, but on several. My sister-in- law, Chase Reynolds Ewald, first called my attention to the animal trials of the Middle Ages. DelfBuchwald provided valuable help with the sections on the Rechtsstaat and on German private law. James Whitman, whose way of looking at these matters tallies closely with my own, made some exceptionally incisive and fruitful observations on an earlier draft; I try to acknowledge the specific points of influence as we go along. (1889) 1890 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 143: 1889 IV. THE INTELLECTUAL ORIGINS OF GERMAN LEGAL THOUGHT 1990 A. Introduction ............................... 1990 B. Kant ..................................... 1997 C. Herder ................................... 2004 D. Savigny .................................. 2012 E. Conclusion ............................... 2043 V. THE DEVELOPMENT OF THE CIVIL CODE ................ 2045 A. The Influence on ConstitutionalLaw ............. 2046 1. Kant and the Rechtsstaat ................... 2046 2. Gierke, Herder, and the Social State ......... 2055 3. Conclusions on Constitutional Law .......... 2061 B. The Influence on PrivateLaw .................. 2065 1. The Classical Model ...................... 2065 2. Gierke's Criticisms ....................... 2074 3. The BGB .............................. 2079 4. Conclusions on Private Law ................ 2093 C. The Ignorance of Romulus ..................... 2095 PART THREE VI. CONCLUSION: A NEW SUBJECT? .................. 2104 A. Two Hunches ............................. 2106 B. A Fresh Start ............................... 2114 1. Loose Ends ............................ 2114 2. Historical Origins of Comparative Law ....... 2116 C. The Master Argument ......................... 2123 1. Rules and Principles ..................... 2129 2. Principles and the Master Argument ......... 2136 D. The Axiom of Practicality ..................... 2139 E. The Justificationof ComparativeLaw .............. 2147 1995] COMPARATIVE JURISPRUDENCE(I) 1891 Alle Begriffe, in denen sick ein ganzer Prozefi semiotisch zusammenfafl4 entziehen sick der Definition;definierbar ist nur das, was keine Geschichte hat.' The following Article attempts to describe and defend a new approach to the study of foreign law. The core idea is easy to state, although surprisingly difficult to carry out; we shall find that it leads through numerous briar patches before culminating in new and unexpected landscapes. Briefly put, the central claim is this: if comparative law is appropriately combined with legal philosophy the result is a substantially new discipline, "comparativejurisprudence," which is capable of furnishing, not just new knowledge, but a new kind of knowledge about foreign legal systems. Strange to say, comparative lawyers have neglected to scrutinize the foundations of their discipline or to think with sufficient rigor about the essentially philosophical question: How can we best come to understand law in cultures other than our own? And this neglect has impoverished the entire subject. Indeed, as one leafs through the journals one encounters a malaise that is scarcely to be found in any other branch of the law. Comparative law, as we shall shortly see, is said by its leading scholars to be superficial and unsystematic, dull and prone to error. In part this malaise is the product of disappointed hopes; for if any subject in the legal curriculum promises to bring home the Wealth of the Indies, it is comparative law. The variability of law from culture to culture and from age to age is an epic theme, and should be a bugle call to scholarship. Alan Watson, perhaps the deepest critic of the subject, recalls that the idea of comparative law fascinated him since he began to study law: "My notion was that the study of legal developments in a number of states would, by uncovering patterns and divergences, best reveal societal concerns, and how law responds."2 But he quickly discovered that the subject was bent on other goals. "Need- less to say," he observed, "when, as a beginning student, I read the ' "All concepts in which an entire process is semiotically summed up elude definition; only that which has no history can be defined." FRIEDRICH NIETZSCHE, ZUR GENEALOGIE DER MORAL, pt. II, § 13 (Leipzig, C.G. Naumann 1887). In this Article translation credit for substantial quotations is given in footnote parentheticals; shorter quotations have been translated by the author sub silentio, as here. 2 ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIvE LAW 107 (2d ed. 1993). 1892 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 143: 1889 books available to me, such as H.C. Gutteridge, ComparativeLaw, or Rudolf B. Schlesinger, Comparative Law, I found nothing to my purpose. My concerns were not their concerns." Perhaps the most serious problem with comparative law has been identified by Arthur von Mehren, who speaks of its "dispersed" and "scattered" quality and of its inability to congeal into a stable academic discipline: Most subject matters in our curriculum, given focus by the needs of the practicing profession, experience no difficulty in establish- ing a core of information and theory that is carried forward, developed, and refined by succeeding generations of scholars. Work in comparative law, on the other hand, tends to be scattered and diffuse as to topic, legal system, and purpose. Although much excellent scholarship has been achieved, no shared body of information and theory, no scholarly tradition susceptible of transmission to succeeding generations has emerged. One has the uneasy feeling that comparative-law scholarship is always beginning over again, that comparatists lack a shared foundation on which each can build.4 Indeed, to judge from the words of comparative lawyers themselves, it can sometimes seem that the animating spirit of comparative law has been the Muse Trivia-the same Goddess who inspires stamp collectors, accountants, and the hoarders of baseball statistics. I argue below that what von Mehren calls the "dispersed" quality of comparative law, its tendency to heap up random particles of information, is the consequence of certain deep philosophical assumptions about law. Those assumptions were explicit in the minds of the scholars who founded the modern academic discipline at the end of the nineteenth century. For a time these philosophical ideas gave useful guidance to the new subject, supplying it with a powerful methodology appropriate to the problems of the day. But gradually the range of problems has shifted;