Comparative Jurisprudence (I): What Was It Like to Try a Rat? Author(S): William Ewald Source: University of Pennsylvania Law Review, Vol
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Comparative Jurisprudence (I): What Was It like to Try a Rat? Author(s): William Ewald Source: University of Pennsylvania Law Review, Vol. 143, No. 6 (Jun., 1995), pp. 1889-2149 Published by: The University of Pennsylvania Law Review Stable URL: http://www.jstor.org/stable/3312588 . Accessed: 25/11/2013 06:51 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. The University of Pennsylvania Law Review is collaborating with JSTOR to digitize, preserve and extend access to University of Pennsylvania Law Review. http://www.jstor.org This content downloaded from 131.227.126.158 on Mon, 25 Nov 2013 06:51:24 AM All use subject to JSTOR Terms and Conditions COMPARATIVE JURISPRUDENCE (I): WHAT WAS IT LIKE TO TRY A RAT? WILLIAM EWALDt PART ONE I. THE RATS OF AUTUN ........................... 1898 PART TWO II. COMPARATIVE JURISPRUDENCE . ................... 1943 A. Remarkson 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 Traditional Approachesto ComparativeLaw ..... 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, Universityof 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 forthcomingseries 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 mycolleagues at the Universityof Pennsylvania, and in particular to Jacques deLisle, Colin Diver, Michael Fitts, Robert Gorman, Heidi Hurd, Leo Katz, Fritz Kubler, 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, firstcalled myattention to the animal trials of the Middle Ages. Delf Buchwald provided valuable help with the sections on the Rechtsstaatand on German private law. James Whitman, whose way of looking at these matters tallies closely with my own, made some exceptionally incisive and fruitfulobservations on an earlier draft; I tryto acknowledge the specific points of influence as we go along. (1889) This content downloaded from 131.227.126.158 on Mon, 25 Nov 2013 06:51:24 AM All use subject to JSTOR Terms and Conditions 1890 UNIVERSITY OF PENNSYLVANIALAW REVIEW [Vol. 143: 1889 IV. THE INTELLECTUALORIGINS OF GERMANLEGAL THOUGHT 1990 A. Introduction ............................... 1990 B. Kant .................................. 1997 C. Herder ................................... 2004 D. Savigny .................................. 2012 E. Conclusion ................................ 2043 V. THE DEVELOPMENTOF THE CIVIL CODE ............ 2045 A. The Influenceon ConstitutionalLaw ............. 2046 1. Kant and the Rechtsstaat .................. 2046 2. Gierke, Herder, and the Social State ......... 2055 3. Conclusions on Constitutional Law .......... 2061 B. The Influenceon Private Law ................. 2065 1. The Classical Model ..................... 2065 2. Gierke's Criticisms ...................... 2074 3. The BGB .............................. 2079 4. Conclusions on Private Law ............... 2093 C. The Ignorance ofRomulus ..................... 2095 PART THREE VI. CONCLUSION: A NEW SUBJECT? .................. 2104 A. Two Hunches .............................. 2106 B. A FreshStart .............................. 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 Axiomof Practicality ..................... 2139 E. TheJustificationof ComparativeLaw ............. 2147 This content downloaded from 131.227.126.158 on Mon, 25 Nov 2013 06:51:24 AM All use subject to JSTOR Terms and Conditions 1995] COMPARATIVEJURISPRUDENCE (I) 1891 Alle Begriffe,in denen sich ein ganzer Prozefisemiotisch zusammenfafit,entziehen sich der Definition;definierbar ist nur das, was keine Geschichtehat.1 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 surprisinglydifficult to carryout; 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 withlegal philosophy the result is a substantiallynew discipline, "comparative jurisprudence," 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 sufficientrigor 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 variabilityof 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 historycan be defined." FRIEDRICHNIETZSCHE, ZUR GENEALOGIEDER MORAL, pt. II, ? 13 (Leipzig, C.G. Naumann 1887). In this Article translationcredit forsubstantial quotations is given in footnote parentheticals; shorter quotations have been translated the author sub silentio,as here. 2 by ALAN WATSON,LEGAL TRANSPLANTS:AN APPROACHTO COMPARATIVELAW 107 (2d ed. 1993). This content downloaded from 131.227.126.158 on Mon, 25 Nov 2013 06:51:24 AM All use subject to JSTOR Terms and Conditions 1892 UNIVERSITY OF PENNSYLVANIALAW REVIEW [Vol. 143: 1889 books available to me, such as H.C. Gutteridge, ComparativeLaw, or Rudolf B. Schlesinger, ComparativeLaw, I found nothing to my purpose. My concerns were not their concerns."3 Perhaps the most serious problem with comparative law has been identified by Arthurvon Mehren, who speaks of its "dispersed" and "scattered" quality and of its inability to congeal into a stable academic discipline: Most subject mattersin our curriculum,given focus by the needs of the practicingprofession, experience no difficultyin establish- ing a core of informationand theorythat is carried forward, developed, and refinedby succeeding generationsof scholars. Workin comparativelaw, on the otherhand, tendsto be scattered and diffuseas to topic,legal system,and purpose. Althoughmuch excellent scholarship has been achieved, no shared body of informationand theory,no scholarly tradition susceptible of transmissionto succeedinggenerations has emerged. One has the uneasyfeeling that comparative-law scholarship is alwaysbeginning over again, thatcomparatists lack a shared foundationon 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