Critical Comparisons: Re-thinking Comparative Law
![handle is hein.journals/hilj26 and id is 421 raw text is: VOLUME 26, NUMBER 2, SPRING 1985
Critical Comparisons: Re-thinking
Comparative Law
Giinter Frankenberg*
This essay will consider the aims of comparative law and focus on how
the de-emphasized theoretical discussions and foundations of compa-
rative work influence the various comparative approaches. It will argue
that because of comparative legal scholarship's faith in an objectivity
that allows culturally biased perspectives to be represented as neutral
the practice of comparative law is inconsistent with the discipline's
high principles and goals. In response, this essay will suggest a critical
approach that recognizes the problems of perspective as a central and
determinative element in the discourse of comparative law.
I. DISTANCE AND DIFFERENCE
Comparative Law' is somewhat like traveling. The traveler and the
comparatist are invited to break away from daily routines, to meet the
unexpected and, perhaps, to get to know the unknown. Traveling
* Dr. phil., Dr. jur., Research Fellow of the Max Planck Institute for Social Sciences;
University of Frankfurt/Main (West Germany).
I am grateful to the students of my seminar on Comparative Constitutional Law and to my
colleagues at the Harvard Law School and at the Max Planck Institute who generously shared
their ideas with me. Isaac Balbus, Klaus Eder, Eberhard Eichenhofer, Frank Hirtz, Elmar
Koenen, Gerald Lopez, Frank Michelman and Bernd Schulte read earlier drafts and made valuable
comments. I owe a special debt to Gerald Frug, David Kennedy, Martha Minow and Jonathan
Zimmerman for their help and (de-)constructive criticism.
1. Comparatists, so it seems, have identity problems. More often than not, their work begins
with a complaint. They reject the term Comparative Law, calling it a misnomer. R.
SCHLESINGER, COMPARATIVE LAw I (3d ed. 1970) (an empty phtase), H. GUrERIDGE,
COMPARATIVE LAW 1-2 (2d ed. 1949) (une expression peu satisfaisante), I P. ARMINJON, B.
NOLDE & N. WOLFF, TRAITI- DE DROIT COMPARt 10 (1950). The complaint that the term has
little or no meaning usually spurs on search for new terms, such as Comparative Legal Systems,
Comparative Legal Traditions, Comparative Legal History, Comparative Legislation,
Comparative Jurisprudence, the Comparative Study of Law or simply the Comparative
Method. See H. G'a-ERIDGE, supra, at 1-10; M.A. GLENDON, M. GORDON & C. OSAKWE,
COMPARATIVE LEGAL TRADITIONS IN A NUTSHELL 2 (1982) thereinafter cited as M.A. GLEN-
DON]; A. VON MEHREN & J. GORDLEY, THE CIVIL LAW SYSTEM (2d ed. 1977); K. ZWEIGERT
& H. KO'rz, AN INTRODUCTION TO COMPARATIVE LAw 1-10 (1977). New definitions have
always-more or less clearly-indicated which aims the comparatists set out to pursue. See I L.
CONSTANTINESCO, RECHTSVERGLEICHUNG 206-12 (197 1). Yet these definitions and redefini-
tions have not silenced the doubts that there is something basically wrong with comparative
law. Instead of providing the ultimate definition, I propose that we do not bother with changes
in terminology but deal with the doubts instead.](ViewImageLocal?handle=hein.journals/hilj26&div=30&collection=&method=preview&ext=.png&size=3)
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Critical Comparisons: Re-thinking Comparative Law
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