1. The Metaphor
After reading the title, the reader might remember an image of a poor human being rolling a heavy stone up a hill. One may wonder what that image has to do with comparative study of law if the idea is not to say that comparative law is forbiddingly difficult. Now, most of us are familiar with the story behind the Sisyphean task but what is its connection to comparative law? According to the ancient Greek mythical story Sisyphus, King of Corinth, was punished by Hades for his misdeeds by eternally having to roll a heavy stone up a hill. Every time he approached the top, the stone escaped his grasp and rolled to the bottom again.
We who live in the twenty first century still use the story metaphorically. Used in this manner we talk about the labour of Sisyphus, a task that requires continual (and often ineffective) effort. The argument I am making here is that doing comparative legal research is methodologically a Sisyphean task and that interdisciplinarity is part of the issue. The background for using this metaphor is the long-lasting methodological debate among comparative law scholars that fills endless bookcases.
There is no doubt that lots of ink has been spilled during that last fifty years or so when scholars have argued and debated about comparative law. Because comparative law lacks such a strong footing in the legal academia as the doctrinal study of law, i.e., the mother discipline of all legal disciplines, it seems to be constantly searching for itself. Despite its years in academia, comparative law seems to still be in the making; it searches eternally for direction and new applicable methodologies. In fact, much of the voluminous literature consists of lamenting the assumed sorry state of comparative law as an academic discipline. Much of the scholarship is about complaining the difficulties associated with doing comparative law.
As a result of comparative law’s endless search for direction, nonetheless, there is a rich scholarship on theory and methodology of comparative law. Unfortunately, much of the literature seems to require full and deep-reaching commitment to being a comparatist or assuming the identity of a “true” comparative legal scholar. We comparatists like to use words like “serious” or “academic” comparative law. Because of this, most of those who may have a potential interest in comparative law but are not ready to become dedicated diehard comparatist are scared away from the discipline. Notwithstanding, rich and versatile scholarship has also paved the way for new emerging paradigm. Scholarly lamentation has not only muddied the waters.
In the new emerging paradigm, there are few underlying ideas like, for instance, the idea of a toolbox of methods instead of a one-size-fits-all type of method. Along similar lines, today it is more typical to underline the significance of a research question than that of a school of thought (no matter what that school of thought might be). One of the key elements of the emerging new paradigm is interdisciplinarity, which is considered more important than before. Scholars who are speaking for an idea of a toolbox of methods and are open to interdisciplinary are, for instance, professors Geoffrey Samuel, Mathias Siems, and Mark Van Hoecke (and this author obviously). But what do we mean by interdisciplinary?
Broadly speaking, interdisciplinarity refers to a model of research where scholars inform each other’s perspectives and compare their research results through a transfer of knowledge, crossing disciplinary boundaries. Understood in this way, interdisciplinarity comes close to multi-method research. In essence, interdisciplinarity concerns the transfer of methods or other elements from one specialised field of knowledge to another. Accordingly, interdisciplinarity goes over the disciplinary boundaries but stays within the framework of disciplinary research.
Now, the issue on interdisciplinarity seems still to cause some quandary among all legal scholars, not merely comparatists. For legal scholars in general, an essential problem is how to use methods and materials of non-legal disciplines in legal research. A key observation is that using interdisciplinary materials and approaches does not make the comparatist “less” of a legal scholar. For instance, using legal historical or sociological information does not transform the comparatist into a legal historian or sociologist, but it does make the comparatist someone who needs to be satisfactorily familiar with legal history and sociology of law. In short, applying economics does not turn the comparatist into an economist.
From the comparative law literature, it becomes clear that interdisciplinarity is today seen as an essential part of comparative study of law. In short, to understand (even partially) foreign law, one needs to place law in context, i.e., contextuality is unavoidable in understanding foreign law as the comparatist lacks contexts when it comes to other systems than their own. Consequently, if law in context is unavoidable in comparative research it means that at least some interdisciplinarity is also unavoidable. Problem remains, nonetheless, as to what does ‘some’ interdisciplinarity mean.
In practice, some interdisciplinarity means openness to other sorts of materials and approaches than purely legal ones: history, economics, culture, language, and other contextual dimensions. In essence, the comparatist does not transform miraculously into a sociologist or historian but is required to be open to using such materials and approaches as it helps understanding foreign law and explaining why there are differences and similarities between the compared systems.
3. Pluralism and flexibility
Openness to other disciplines and materials beyond legislation, case law, and doctrine means that modern comparative law is an open-ended matter. Studying law comparatively is, as a result, fascinating but also a challenging thing to deal with many approaches that can be applied. What is more, it is also important to grasp that comparative law is not the only legal discipline that compares. Pluralism and openness come with flexibility toward other kinds of comparisons as comparative law has no scholarly monopoly to study law comparatively. Sociology of law, legal history, legal linguistics, law & economics, and legal theory may all be comparative within their own disciplinary home-base. In a nutshell, interdisciplinarity works both ways if pluralism is accepted as a basic tenet.
Importantly, modern pluralistic comparative law avoids unconditionality that was a hallmark of the twentieth century comparative law scholarship. In comparison to previous century’s scholarship on comparative law this century seems more open to accept various approaches and schools of thought. As a result, a comparatist has lots of freedom. Freedom concerns both the method and the thematic area of study that has expanded from Western private law towards non-Western systems and towards public law. Unfortunately, it is not quite clear if this freedom is a boon or a bane. As Otto Kahn-Freund once noted ‘on the professor of comparative law the gods bestowed the most dangerous of all their gifts, the gift of freedom’ (Comparative Law as an Academic Subject  82 LQR 40, 41).
What kind of a methodology comes out of pluralistic and flexible comparative law notion that is also open to various forms of interdisciplinarity? There are, in my view, certain key ideas here. First, there is no one-size-fits-all type of method in comparative law as one is forced to build an approach for a specific purpose. Second, interdisciplinarity is unavoidable as positive law only does not get that rock up a hill alone; supporting materials and scholarship are required when contexts of law are considered. Third, freedom comes with a burden as the comparatist must choose the hill and the rock. To that end, the comparatist chooses their thematic subject of research (what) and constructs the method (how) that helps to answer the research question.
What does the above mean for those who are preparing their PhD theses and are using or are considering using a comparative approach to law? The key point is to build on one’s research question. This is not a complicated enigma, on the contrary. If a research question requires comparison, then, there are no reasons not do it. Then again, if a research question does not really require comparative approach, then, why on earth should one seek to use it? Essentially, a comparison must make sense as it needs to be done for a purpose and not for decorating one’s PhD thesis with points on foreign law. In the end, modern pluralist comparatists need to build their ability to study law in an interdisciplinary manner if they are to consider the contexts of law and step out of the methodological shadow of legal doctrine. The bottom line is to move beyond the surface of law that consists of legislation, case law, and doctrine. To understand foreign law, one needs to understand at least some of the societal, political, and historical contexts.
In the end, the comparatist – aspiring or a more seasoned one – should consider what is their relation to the method(s) they seek to use. To paraphrase JF Kennedy’s famous words: ask not what your method can do for you, ask what you can do for your method. In other words, the comparatist needs to push (method) their own stone (subject) up the hill like Sisyphus as there are no standard answers. In this sense, the freedom of comparatist is indeed both a boon and a bane.
This blog is based on Jaakko Husa’s Interdisciplinary Comparative Law: Rubbing Shoulders with the Neighbours or Standing Alone in a Crowd (Edward Elgar, 2022) and the Opening Presentation (on zoom) for the BACL Postgraduate Workshop on Comparative Law on 26 May 2022.
Posted by Professor Jaakko Husa (University Helsinki).