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Jameses at Play: a Tractation on the Comparison of Laws†

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Jameses at Play: a Tractation on the Comparison of Laws† PIERRE LEGRAND* Jameses at Play: A Tractation on the Comparison of Laws† Withstanding trendyism and its abrupt brevities, shunning the contemporary’s brisk cadences, this Article compares two salient com- parativisms-at-law. While it argues that these models are epistemi- cally irreconcilable in significant respects—and that one approach is emphatically more interpretively empowering than the other—it also claims that neither strategy is able to escape the play of the text. The inevitability of comparativism as play means that every enunciation of foreign law and every comparison-at-law must stand as the compara- tivist’s invention, as an exercise in self-portraiture also, as an egotrope. “The world is utterly, thoroughly legal, as you may not know it.” —Thomas Bernhard1 “Let us grant the freedom to trace.” —Roland Barthes2 “And, no doubt, that is reading: to rewrite the text of the work directly from the text of our life.” —Roland Barthes3 Beyond the fact that it answers a desire for personal emancipation or déniaisement,4 that it provides primordial terms “enabl[ing] [one] to ask vital questions,” and that, allowing for manifestations of insur- mountable ethnocentrism, it “dislodge[s] and liberate[s] one from one’s * Professor of Law at the Sorbonne, Paris; Visiting Professor, Northwestern University Pritzker School of Law, Chicago; Distinguished Visiting Professor, University of San Diego School of Law. † http://dx.doi/org/10.1093/ajcl/avx018 1. THOMAS BERNHARD, Ist es eine Komödie? Ist es eine Tragödie? (1967), reprinted in ERZÄHLUNGEN 74 (2001). 2. ROLAND BARTHES, LE BRUISSEMENT DE LA LANGUE 57 (1984). 3. 5 ROLAND BARTHES, Noureev et la Berma (1979), reprinted in ŒUVRES COMPLÈTES 628 (Eric Marty ed., 2d ed. 2002). 4. For a “classical” statement, see Peter Winch, Understanding a Primitive Society, 1 AM. PHIL. Q. 307, 317–18 (1964) (“Seriously to study another way of life is necessarily to seek to extend our own”). © The Author [2017]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals. [email protected]. 1 2 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 65 self-centric and self-satisfied normality,”5 comparative law, to uphold the disappointingly uncontested misnomer, is informed by an engage- ment with the world’s legal disparateness—which it regards in prin- ciple as beneficial and indeed as normatively relevant. Accepting that because one’s being exists in the world one is condemned to interpre- tation,6 responding to the redoubtable summons of other laws—which are there and whose singular “thereness,” unbidden, intransigently and insatiably hails or interpellates one, making a claim on one, on one’s singularity, soliciting one’s recognition and one’s respect—the com- parativist contests nationalizing and universalizing strategies alike. Indeed, while it obtains on the assumption that the legal cannot jus- tifiably remain at home, in its abode, abidingly, comparativism also disputes the possibility and opportunity of one-law-for-all, alleged uni- formity entailing the unwarrantable destruction of space’s spatiality and of time’s temporality. Ultimately, since there can be no comparison outside of the conditions of address of a self to an other, comparative law involves the appreciation, within one glance, of more than one law, one of the convoked laws having to be foreign to the other—the (legally) foreign consisting not in a fixed or absolute form, but in what is, in effect, not deemed to be (legally) binding on one.7 Far from petrifying the comparativist into the speechlessness too readily associated with otherness’s estrangement or uncanniness, the fashioning of a legal het- erotopia existing beyond commensuration serves to operate a felicitous shift away from the production, circulation, and analysis of legal knowl- edge of the autotelic and self-authenticating variety, of the kind that unabashedly blares “here is my only elsewhere.”8 As it appears in its contemporary “Western” guise, as it is cur- rently deployed in Europe and North America for example, com- parative law exists contrapuntally. Leaving aside Montaigne’s or Montesquieu’s comparativisms avant la lettre, the comparison of laws perceptibly emerged in its institutionalized guises in the 1820s in reaction to the European codification movement and in response to what were then perceived in some academic and professional circles as isolationist proclivities.9 Following the usual patterns of 5. Ming Xie, Towards a Critical Intercultural Hermeneutics, in THE AGON OF INTERPRETATIONS 7, 14 (Ming Xie ed., 2014). 6. I adapt MAURICE MERLEAU-PONTY, PHÉNOMÉNOLOGIE DE LA PERCEPTION 20 (1945). Merleau-Ponty’s observation is that one’s being in the world condemns one to meaning. I am reminded of Taylor who, echoing Heidegger and Gadamer, asserts how “Verstehen is a Seinsmodus.” 1 CHARLES TAYLOR, Self-Interpreting Animals, in PHILOSOPHICAL PAPERS 72 (1985) (emphasis original). 7. Foreignness is contingent: it depends upon conjoncture and situation. 8. I draw on NATALIE MELAS, ALL THE DIFFERENCE IN THE WORLD 1–43 (2007). “Heterotopia” is indebted to Foucault. See 4 MICHEL FOUCAULT, Des espaces autres (1984), reprinted in DITS ET ÉCRITS 752–62 (Daniel Defert & François Ewald eds., 1994). The quotation is from SAMUEL BECKETT, L’INNOMMABLE 62 (1953) [hereinafter INNOMMABLE]. The English version of Beckett’s text is his own. SAMUEL BECKETT, THE UNNAMABLE 121 (Steven Connor ed., 2010 [1958]) [hereinafter UNNAMABLE]. 9. Nietzsche refers to an “age of comparison” (“Zeitalter der Vergleichung”). 4/2 FRIEDRICH NIETZSCHE, MENSCHLICHES, ALLZUMENSCHLICHES (1878), reprinted in NIETZSCHE WERKE 40–41 (Giorgio Colli & Mazzino Montinari eds., 1967). 2017] A TRACTATION ON THE COMPARISON OF LAWS 3 academic self-contrivance, comparison-at-law proceeded over time to carve a distinctive socio-intellectual and disciplinary arena featur- ing the usual sociological markers: learned societies, journals, chairs, conferences, research centers or institutes, courses, and postgradu- ate programmes. Nowadays, claiming to abnegate parochialism, an increasing quantity of individuals seek to enter the field of compara- tive law and to have their professional identity validated, at least in part, by their participation in it. In advance of empirical study, one can confidently assert that the number of legal academics purport- ing to style themselves as “comparativists” is in fact unprecedented. (In the same vein, one can identify many doctoral programmes in law—for instance, in Denmark and in the Netherlands—where com- parativism has become an inavertible prerequisite to the ascription of intellectual credibility to one’s research.) Labels hardly being immune to vogue, words like “transnational” eventually made an appearance on the intellectual scene suggesting an alternative slant. Be that as it may, the array of scholarly enterprises that are pursued within the field of comparative law today remain infused with one steadfast concern, that is, a determination to extol the value of the foreign in terms of what is relevantly legal locally—a project that assumes an epistemic commitment to detotalization (national law simply cannot be all the law that matters) and to deterritorializa- tion (the law that matters simply cannot stop at national borders). Irrespective of the troubling location of the foreign out of epistemic grasp (I mean the very foreign that makes the comparative discourse of interest) and, in the absence of calculable determinants, beyond the ability to recount how it is, the seriousness of the comparativist’s political commitment to other laws resists the angled precariousness of the solidus organizing the diremption between “here” and “there.” Not unlike other fields, comparative law features an orthodoxy— and one orthodoxy only—whose strategic and generative power, whose hegemonic logic, commands consent on the part of compara- tivists jointly and severally. This doxa operates without any need for coercive action since, again, individuals covet entry into the field of comparative law and crave disciplinary acceptance as comparativ- ists. Rather than exert itself from above and from without (on the model, say, of premodern sovereignty), the orthodoxy’s power circu- lates through the field and innervates it in capillary fashion, not least by virtue of a phenomenon of routinization, in a manner that entrenches the discourse it carries as obvious, as correct also, in fact as a form of seeming necessity devoid of any kernel of preferment. Rather than having arrived where it is after contesting alternative practices and excluding distinct frames of articulation, the orthodoxy would simply be “there,” vor aller Theorie. Through a bilateral chain of connectivity, individuals are “produced” as comparativists by vir- tue of their adoption of the dominant discourse, of its apparatus and equipment, while they themselves confirm the discursive power’s 4 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 65 authority by subscribing to it through incorporation. (I use this word advisedly bearing in mind its etymology. In-corporare is to embody, to absorb—it is also to ingest, to swallow—so as to make part of one’s body, thus, to encase meaning in the body in order to guard from self- forgetfulness and abstraction. Comparativism is embodied.) Comparative law’s doxa has long been committed to an under- standing of the legal that can fairly be termed “positivist-analytical” or “positivist” tout court.10
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