The history of law is a promising domain. A number of legal disciplines, such as legal theory, the philosophy of law, the sociology of law and epistemology do not have their own history. Often they are perceived as elements of an immutable and coherent system of legal knowledge divided into branches, and not as projects – competitive and contradictory – within the framework of types of thought limited in time and space. Representatives of each of these disciplines make claims in various forms to primacy and priority over the others, rendering them to the specific identities of their own project, its competitive advantages and limitations, disciplinary boundaries, and evolutionary path.
This situation has emerged in comparative jurisprudence (understood here as the discipline about contemporary legal systems). Its evolution became the subject-matter of hundreds of primarily small descriptive studies aimed at proving the venerability of disciplinary origins or the even greater antiquity of the use of comparative methodology in law. These studies to a significant degree reflect those same efforts to appropriate something in common without determining their own historical identity. Therefore, the criteria remain virtually undeveloped for determining the reasons for and the dating of the emergence of comparative jurisprudence. The development of theoretical grounds for comparative legal studies and the pluralism within comparative legal studies remained beyond the purview of historians of comparative jurisprudence.
The present study of the history of comparative-legal studies (COMPARATIVE LEGAL STUDIES: 1750 TO 1835. APPROACHES TO CONCEPTUALIZATION, Translated and Edited by W.E. Butler. London: Wildy, Simmonds & Hill Publishing, 2019, 755 p.) began nearly two decades ago. This project identified several problems, including: the different perception of disciplinary affiliation of comparative legal studies and, accordingly, a different subject-matter of studies devoted to their evolution; the lack of fundamental generalizations and the presence only of small studies; the “renvoi character” of some studies with regard to others in which the chain of reference may be traced through several works; an inadequate knowledge of the sources, or simply ignoring them; reliance on completely different materials, depending on the scholar’s affiliation to a certain country; elements of nationalism, primarily ignoring materials in languages foreign to the researcher; the descriptiveness and the lack or weakness of generalizations except for determining facts; an orientation towards deeply formal, secondary indicators – for example, the period of the emergence of specialized chairs, societies, journals, holding of congresses.
To be sure, material advances in this domain have occurred while the present work was underway. First, the collected essays edited by Riles (Rethinking the Masters of Comparative Law). Second, the Oxford handbook of comparative law edited by Reimann and Zimmermann, containing several essays on the development of comparative jurisprudence in various countries. Balasz attempts to single out paradigms of comparative law or basic models of understanding legal comparativism in the second half of the 19th and 20th centuries (Budapest, 2009). Damirli analysed the science of comparative jurisprudence in Ukraine (Odessa, 2007, in Russian). At the present writer’s initiative, a collection of essays was published on outstanding comparatists, an anthology of Ukrainian comparative legal studies, a collection of works on the history of comparative jurisprudence as a sphere of scientific studies, and our monograph on the development of comparative jurisprudence in the 19th-20th centuries (Kyiv, 2011, in Ukrainian). On the whole, all these works merely summarize what had been written in earlier historical essays, preserving and developing both their positive and negative features. In short, this was mostly a formal breakthrough in the making of the history of comparative jurisprudence.
The substantive breakthrough in investigating the history of comparative legal studies may, in our view, be linked with recourse to sources, their introduction into scholarship, and a thoughtful reworking. This has enabled them to be cleansed of layers of references, stereotypes removed, and scientific generalizations to be expanded. In recent times the greatest achievements belong to Mohnhaupt, and to J. Bentivegna, who brought to the public Amari’s work on comparative legislation (originally written in 1845) and on a critique and history of the science of comparative legislation (first published in 1857).
The present writer brought to light a complex of UNESCO documents connected with the creation and activities of the International Committee of Comparative Law – International Association of Legal Sciences; some of René David’s unpublished works (1906-1995) were translated and published. Finally, publication on the Internet, especially Google Books, contain a large body of works by legal scholars, including rare publications never before considered when investigating the history of comparative jurisprudence.
This all gives grounds for a substantive review of the evolution of theoretical foundations for comparative-legal studies. It also expands significantly the problem and makes it impossible to consider them all within a single work. Therefore, the chronological framework of the present study is limited to the second half of the 18th century to the first third of the 19th century. This period especially requires consideration, for it was the first time that comparison in law was conceptualized, the comparative legal scientific picture of the world was formed, and the origin of comparative-legal scientific disciplines occurred.
The chronological framework was not chosen accidentally. The lower limit was especially linked with Charles de Montesquieu’s publication (1689-1755), L’Esprit des loix, which furthered the birth of comparative-legal thought, along with the beginning of the scientific school of Johann Stephan Putter (1725-1807) at Göttingen University which, inter alia, singled out a purely legal problem from comparative State science (comparative statistics) and cameralistics. The outer limit is connected with the principle of reasonable sufficiency – the forming of the comparativist scientific picture of the world was completed, the role of comparison in law, and also of comparative-legal disciplines, was generalized, and the institutionalization of comparative-legal studies occurred (journals, chairs, etc.) in the first third of the 19th century. This also was a time of active dissemination of the idea of the comparative study of law beyond the initial Central European area, the crisis of the primary comparativist paradigm of the nation as the exclusive social totality (the schism among the Hegelians after the death of Hegel is connected with this). Moreover, this was a time of transition from early positivism in law to an approach known as legal positivism. That is, we sought to reconstruct the primary theoretical foundations of comparative-legal studies and dwell on them, leaving later transformations for further research.
The theoretical foundations of comparative-legal studies were formed gradually within the context of the developing legal science at the time. This was the time of the bankruptcy of the metaphysical grounds of jurisprudence and principal universalist legal ideologies, the development of national-State legal orders in Europe, and also the influence of the development of comparative knowledge within other sciences. During the period considered, pluralism became part of comparative knowledge and instructional disciplines – comparative jurisprudence, comparative history of law, branch comparative-legal disciplines. Uniform theoretical foundations of obtaining, generalizing, and applying comparative-legal knowledge were characteristic for all of them. The works of the principal scientific schools of that time were mutually reinforcing. At the time, the comparativist scientific picture of the world of law was conceptualized, elements of which were the legal map of the world, doctrine on the Individual, Particular, and Universal in legal development, distinctive and general elements of national legal systems, internal and external interaction in law, and the classification of legal systems. The complexity, subsequent realization, proposed and institutionalized forms of the organization of knowledge testify to the fact that during the second half of the 18th and first third of the 19th centuries the process occurred of the origin of theoretical foundations of comparative-legal studies.
The theoretical foundations of comparative-legal studies in this period may, from the standpoint of the history of political and legal doctrines, be regarded as problematic for their subject-matter, purposes, role in the forming of the general doctrine on law, their informing the comparative-legal scientific picture of the world and derivative legal map of the world, and the grounds of interaction of legal systems. These problems became apparent for comparative-legal studies in the course of the last two centuries. Although concrete-historical responses to these questions have materially changed, the basic subject-matter of comparative-legal studies during the period considered until today remains positive law. The purposes of comparison of law, both then and now, can be divided into profoundly scientific (cognitive), value, and practical, although now they may be more concretized. The question of the principles of forming the general doctrine on law remain controversial and have, just as during the period considered, primarily two responses – inductive and deductive, which also determines the attitude towards the role of comparative-legal studies: for some specialists a comparative-legal approach is the leading one when forming theoretical knowledge, whereas others consider it to be a special scientific method that does not produce theoretical knowledge.
The dispute concerning the organization of comparative-legal knowledge in (1) a separate disciplinary system of comparative-legal disciplines (comparative jurisprudence, comparative/universal history of law, branch comparative-legal disciplines), or (2) comparative jurisprudence and the aggregate of comparative knowledge within branch legal sciences (without institutionalization of the respective disciplines within the limits thereof), or (3) the aggregate of uninstitutionalized comparative-legal knowledge within the legal sciences – has continued for more than two centuries and evidently will continue in the future. Objective and uncontroversial is merely the existence of comparative-legal studies producing specific comparative-legal knowledge. Within the period considered, and at present, comparatists cognize the legal map of the world by means of the classification of national legal systems, continue to improve and detail the doctrine created then concerning the interaction of legal systems. Thus, the complex of questions encompassed by the concept “theoretical foundations of comparative-legal studies” remain virtually the same as in the period of its development during the second half of the 18th and first third of the 19th centuries.
Posted by Oleksiy Veniaminovych Kresin – Doc. habil., Head, Center of Comparative Jurisprudence, Koretskyi Institute of State and Law, National Academy of Sciences of Ukraine, Associate, International Academy of Comparative Law, Secretary-General, Ukrainian Association of Comparative Jurisprudence.
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