Article by Walter A. Stoffel
One distinctive feature of comparative law is the ongoing inquiry into the social usefulness of the discipline and the almost constant redefinition of the very object of its (scientific) research. Since the Paris Congress of 1900, comparative law seems to have inspired a vague sense of guilt in those who study it. No other legal discipline exhibits such a strong desire to justify its existence, with the possible exception of Roman Law.
Max Rheinstein, when asked by his students to define the “comparative method,” is said to have responded that this method can best be described, if at all, as a four-step process that goes like this: first, master your own law; second, forget all about it and learn another law in a different language and culture; third, master the other law, including its practice; and fourth, compare! This description of a comparatist's task is accurate, yet impossible at the same time. Comparatists claim on one hand that they have to know perfectly what they compare, while relentlessly insisting on the other hand that the objects of the comparison are extremely complex. During a certain time, it seemed that the twentieth century would surmount the inherent contradiction that lies in this dual claim. Comparatists began to know more about many jurisdictions, and they, in turn, became more easily comparable. But in the last two decades of the century, other mechanisms of social regulation began to attract more of our attention, and the law itself became less important. This unexpected evolution changed our approach to learning about the laws we compare and let the processes of decision making grow in importance.
About the Author
Walter A. Stoffel. Professor of Private International Law and Law of Corporations, Faculty of Law, University of Fribourg (Switzerland); Scientific Director of the International Association of Legal Science (IALS); Member of the Board of the European Law Faculties Association (ELFA); Member and Vice President of the Council of the Swiss Institute of Comparative Law, Lausanne.
Citation
75 Tul. L. Rev. 1195 (2001)