Catherine Valcke – Comparing Law: Comparative Law as Reconstruction of Collective Commitments (forthcoming Cambridge University Press, 25th October 2018)

Traditional comparative law is doing just fine. At any rate much better than has been claimed. It is not theoretically random, scientifically aimless and/or methodologically void, thus an intellectually empty and socially inconsequential form of entertainment, on a par with stamp collecting and baseball statistics hoarding. Only, comparative lawyers have historically been remarkably tight-lipped about the analytic whereabouts and practical import of their work. This book aims to bring these to light with a view to reconstructing comparative law into a full-fledged academic discipline in its own right, geared to honing our understanding of the world’s legal systems. Comparative law hence is, on the present account, not primarily about legal harmonization. Nor is it primarily about promoting legal cultural diversity. It rather seeks to understand each legal system on its own terms, in the very same way that the actors in these systems do.

Whereas comparative lawyers have long seemed to split along the lines of “micro” vs. “macro” comparisons, “law in books” vs. “law in action”, “similarities” vs. “differences”, “expressivism” vs. “functionalism”, and so on, it is here argued that their work comes together at a most fundamental level, in its ultimately resting on a same, interpretive conception of law à la Dworkin (or MacCormick, Fuller, Waldron or Postema) — here dubbed “law as collective commitment”. On that conception, laid out in Chapter 1, law is an interpretive social practice that both reflects and generates a community’s collective commitments to itself. It boasts six main features — effectiveness, argumentativeness, coherence, publicness, formality and normativity — each of which is shown in the subsequent chapters to play a central role in the unfolding, corresponding account of “comparative law as comparative collective commitments”. Importantly, these six features taken together result in law as collective commitments combining an ideal and a material dimension. As such, law as collective commitments stands as a hybrid conception that partakes of both, but is reducible to neither, of two opposite ideal-types constructed for the purpose of argument, namely, the “natural law” and “positivist” ideal-types. These ideal and material threads run through every step of the book’s argument and ultimately supply the back bone of “comparative law as comparative collective commitments” — of comparative law as coherently aiming to understand legal systems on their own terms. As this view of comparative law serves to bridge and transcend the various divisions listed above, it ultimately reveals these divisions to be superficial only.

For a start, the combined ideal and materials threads make it possible, as argued in Chapter 2, to view legal systems as self-standing entities amenable to meaningful mutual comparison. For two entities to be comparable, they must simultaneously be interconnected and distinct from one another, in the same way that arguably are apples and oranges. Despite the famous saying, apples and oranges in fact are mutually comparable because they are interconnected qua “fruit” while different qua “apples”/“oranges”.  As a result, it is possible to compare them in terms of various “fruitness” features, i.e. their relative sweeteness, ripening times, colours, etc…. Likewise with legal systems:  their intellectual connectedness through their common participation in “law as collective commitments” allows for the possibility of comparing their different material contents (rules, institutions, etc…) in terms of effectiveness, argumentativeness, coherence, publicness, formality and normativity. That argument takes the form of an incursion into system theory, which teaches that systems come in different varieties, only some of which, it is argued, meet the two requirements of interconnectedness and distinctness. The legal systems of natural law correspond to what system theorists call “synthetic systems”, which fail to meet the distinctness requirement, whereas the legal systems of positivism, as “cybernetic organic systems”, fail to meet the connectedness requirement. In contrast, the legal systems of law as collective commitment, as “autopoietic organic systems”, are shown to meet both requirements. It is concluded that, of these three conceptions, only law as collective commitment allows for the possibility of conceptualizing legal systems as meaningfully comparable entities.

That same combination of ideal and material however poses serious epistemological and geographical challenges for anyone attempting to understand foreign legal systems on the inside, which challenges are respectively taken up in Chapter 3 and 4.

Most prominent among the epistemological challenges discussed in Chapter 3 is the culturalists’ “home bias objection” to traditional comparative law, according to which an outsider can never come to understand a foreign legal system in the same way as do local legal actors, if only because her understanding of the foreign rules, etc… will necessarily be coloured by her own, rather than the foreign actors’, cultural referents. Any understanding she may gain of the foreign system will therefore be ultimately “biased”, at least as against that of the foreign actors; it will never be the same as the local understanding. Chapter 3 analyses the conceptual and historical whereabouts of the home bias objection and concedes that the outside and local understandings of any given legal system cannot but differ. But it suggests that therein lies the special, for properly “comparative”, contribution of the outside interpreter. That interpreter coming to the local law with her home lens is bound to trigger a back and forth conversation with the local actors that will serve to bring to the fore, and contrast, their divergent sets of cultural referents, in time reinforcing the peculiarity and integrity of each of the outside and local legal narratives. It accordingly is both the local and the outsider’s legal systems that this comparative exercise helps ultimately us understand on the inside. Comparative lawyers thus differ from local lawyers in that they contribute to the internal understanding of several bodies of law at once by moving in and out of them, by oscillating between the internal and external perspectives. In so doing, moreover, they also contribute to reconstructing the very discipline of comparative law.

The combined ideal and material dimensions of law under law as collective commitments also make it difficult to determine the geographical whereabouts of legal systems, to figure out where each begins and ends, territorially, temporally, demographically and in terms of legal materials (which belong to which system), which delineation exercise is necessarily prior to any act of comparison. That exercise would be relatively straightforward were legal systems conceptualized exclusively materially:  their territory, history, demography and material contents would then be exactly those of the nation-states to which they are associated. But their being conceptualized as including also an ideal dimension complicates matters considerably, as shown in Chapter 4. Insofar as legal systems are epistemic communities, they “self-delineate” to some extent. That is to say that their territorial, historical, etc… boundaries are those, again, treated as such by the members of the community, the local legal actors. Yet there is a limit to that internal delineation process, a material limit set by the comparative lawyer (operating on the outside). For law as collective commitment indeed includes an effectiveness requirement, entailing the possibility of enforcement, which in turn calls into play a certain measure of territorial control. That is to say that legal systems on the present account ultimately retain a material anchor, namely, the (enforceable) orders of their respective highest national courts. Thus, whereas law being a form of argumentation, a collective interpretive exercise, causes the boundaries of legal systems to be somewhat elusive—porous, fuzzy, and constantly changing—their centers of gravity are in contrast fixed, as fixed as are actual court orders. Part I of Chapter 4 accordingly portrays legal systems as shaped very much like bee swarms: elusive contours surrounding a comparatively clear center, found in the queen bee.

Part II then zooms out to observe how these various swarm-like systems interact with one another on the global scene. That second step requires engaging with the legal pluralism/globalization literature so as to determine whether these systems might outnumber state legal systems, in particular, whether they might at times merge into supra-national units (such as Europe) and/or subdivide into infra-national ones (such as provinces, counties, municipalities, etc…). Also considered at that point is the possibility that informal social, religious and/or ethnic groups (athletic, professional, economic associations) might count as such swarm-like “legal systems” proper.  It is concluded that the traditional focus of comparative lawyers on national legal systems is, contra the pluralist/globalization critiques, fully defensible under the current, Westphalian organization of world political power.  For the present account confirms that, under that organization, national legal systems indeed are the only swarm-like entities amenable to meaningful mutual comparison.

Chapter 5 crystallizes the discussion of the previous chapters into a proposed three-part methodology for comparative legal studies, sequentially addressing the start-up, reconstruction and overall comparison stages of the comparative process. The discussion of the start-up stage focuses on tertium comparationis selection, relaying the general consensus against using legal labels and in favour of adopting instead a functionalistic, problem-based approach. The requisite ‘effectiveness’ of law under law as collective commitments indeed implies that such an approach be both possible and warranted under comparative law as comparative collective commitments.  Functionalism however yields the stage to expressivism, or hermeneutics, when it comes to analyzing and interpreting the materials gathered in the first stage.  Whereas it is often claimed that cross-system variations are best explained by reference to non-legal (cultural, historical, economic, etc.) factors, legal hermeneutics aim to make sense of the various sets of materials on their own terms, each set being internally reconstructed into a distinct coherent discourse. As such reconstruction exercise necessarily involves relating the various materials to one another and to the set’s peculiar grammar and ideals, those grammar and ideals—the systems’ respective collective commitments—are bound to come to the fore.

But this in turn begs an immediately ensuing question with respect to the overall comparison stage, in particular, that of the extent to which legal systems meaningful on their own yet perhaps no other terms, thus potentially incommensurable, can possibly be compared among themselves in the context of macro comparisons.  It is there argued that, against received wisdom, it does not follow from comparisons necessarily involving an external perspective (whence all the entities can be gleaned at once) that the standards used in those comparisons likewise be externally determined.  Drawing on the economic literature on proportionality, which distinguishes comparability from commensurability, it is suggested that it is possible to compare (externally) the extents to which various legal systems have lived up to their mutually incommensurable (internal) commitments. While such proportional (rather than cardinal) comparisons clearly are comparisons proper, they do not encroach, and might in fact serve to preserve and reinforce, the internal integrity of the systems involved. Particular attention is here drawn to the ‘legal family’ and ‘legal origins’ literatures, both of which have been criticized for comparing legal systems as against externally imposed criteria, thereby contributing to conveying ultimately distorted understandings of these systems.

In the way of Epilogue, it is suggested that comparative law as comparative collective commitments meets the standard requirements for an autonomous academic discipline, that is, a distinct area of knowledge and inferential purpose, a transparent process, a preestablished methodological framework and a priori uncertain conclusions. At least, comparative law so conceptualized arguably fares, by these standards, as well as any other well established such discipline.  Some general remarks on the upshot of the book’s argument for legal theory are offered in closing.

Posted by Professor Catherine Valcke, Professor, University of Toronto