“Q&A with…” is a new section of the Chilean Blog of Comparative Law. In it, María Ithurria, President of the Chilean Network of Comparative Law, will be talking with leading comparatists around the world so that we can know a little more about their experience, their views, and their work. These interviews will be posted here. We hope you enjoy them!
Jaakko Husa is Full Professor in Law and Globalisation at the University of Helsinki, Invited Fellow with Maastricht European Private Law Institute, Titular Member of the International Academy of Comparative Law and Invited Member of the Finnish Academy of Science and Letters. He has held visiting positions at the Maastricht University, the Riga Graduate School of Law, the Law Faculty at the Hong Kong University, and the Edinburgh University Law School (MacCormick Fellow).
1. What do you think is the role of a comparatist nowadays?
On the one hand, the role of a comparatist still is what it has always been. On the other hand, comparative legal scholars may have a new role in a globalising world.
In my view, comparative study of law is about crossing all sorts of borders. These borders can be geographical, legal, mental, epistemological, imagined, real etc. To study law comparatively is to acknowledge the value of other kind of law (rules, institutions, doctrines, theories etc.) than the law of one’s own system. This does not mean that one has to use foreign law as a source of law or to give it any specific normative role in one’s own law. It means, however, that one is interested in law as a specific kind of normative phenomenon that is embedded in how human communities organise their lives. Crucially, comparatist is willing to look (and learn) over the borders and seek to open their mind to other kinds of solutions and approaches to the questions that are – generally speaking – similar. Now, this does not mean that there would necessarily be great similarities between systems but rather that “legal” questions of organised human communities tend to concern similar type of issues: rights, obligations, contracts, marriage, tort, crimes, land, commerce, public power, legal professionals, courts etc.
In the world where law is globalising it seems possible to argue that comparative law is universal in the sense that we are – more or less – all comparatists now. Alternatively, one can also argue that comparative law grows futile because legal globalisation means that all the systems are similar or are becoming somewhat similar. Hence, if you follow this line of argumentation, comparative law would become pointless. In this situation, paradoxically perhaps, I think that comparative law is even more important than in the past. Not as a mere tool that helps creating similarity by harmonisation and unification but, rather, as an intellectual practice that reminds us about legal-cultural differences and opposes overly simplified views that seek to universalise “everything”.
In a sense, comparatists are needed to make sure that the subtleties are not lost and even when we seem to have similarities there are, in fact, many things going on under the surface level of law i.e. legislation and case law. Importantly, comparatists need to remind globalising legal scholarship about the fact that Law-in-Books is not the same as Law-in-Action and that not all law derives from the States.
In summary, comparatists cross borders and create legal cultural togetherness by creating more understanding of foreign. Moreover, comparatists remind legal scholars about the subtle differences, nuances, and accompanying legal-cultural distances that still exist.
2. What made you take an interest in comparative law?
My background is in constitutional law and that is where the interest in comparative law originally rose. In early and mid-1990s, I was interested in – what I called – general constitutional law. The idea was to look at different constitutions, their structure and content. At that time, I found, lots of constitutional documents from internet (from Gopher that was at early stages a competitor of WWW). My research interest was fuelled by the fact that I had access to these materials.
My first reaction was a big surprise because of the great similarities between these texts. Yet, I soon realised that texts and constitutional realities had different relations in different corners of the world. In some places, texts described rather well the reality whereas in other places the texts and the reality were seemingly quite different. Comparative law theory and methodology literature became an important source for me when I tried to figure out what was going and how I should address the fact there was such differences between the constitutional documents and constitutional practices. I was interested in learning more about comparative methodology because it seemed to be able to answer my research related questions (how to do it).
Because most of the comparative law literature focused on private law, I found methodological and theoretical issues most useful. In addition, as time passed, I noticed that comparative law became slowly but gradually more of interest than general constitutional law. For some reason, I found questions of macro-comparative law of great interest. Perhaps that was because I had read rather much Max Weber’s ideas and thought that there was a clear connection between macro-comparative law and Weber’s certain methodological ideas. That road led later to an attempt to try to understand things like legal families, cultures, and traditions.
From there on, comparative law became more and more the key focus of my scholarly work. Although, I still do constitutional law too but to clearly lesser extent.
3. What comparatist has influenced your approach to comparative law the most?
I dare say that I have read quite much comparative law scholarship and it is bit difficult to pinpoint particular names. However, I think that Ernst Rabel’s certain key-ideas have been influential. Rabel’s ideas on comparative law are still relevant and I think he is more interesting scholar than many of those who followed him (allegedly along similar lines) make him look. What is more, I should mention H. Patrick Glenn whose ideas on macro-comparative law have been very inspiring.
Now, I should be specific and say that I am certainly not a follower of Rabel or Glenn but, instead, I have found their scholarship inspiring and thought provoking. I also knew Patrick personally (having met him numerous times) and I can say that his “comparative law touch” is something I really admired: He had his own personal approach to scholarly work and sharp but gentle – almost humoristic – way to argue. In this sense, Patrick has been very influential although I am not sure if anyone could really describe me as “Glennian”. Moreover, I find Geoffrey Samuels’ work very inspiring and thought provoking. Albeit, I am not sure that I always fully understand what he argues. This is not Geoffrey’s fault though, I hasten to add. Yet, his very original intellectual style of combining common law, French epistemology and Roman law is really quite something. One can learn from him. I should also mention two Finnish legal scholars. Heikki E.S. Mattila (comparative legal linguist) and late Antero Jyränki (constitutional law professor); I learned the value of doing academic work with high ambition and the significance of skills in languages (re comparative study of law) from both of them.
Overall, my intellectual style as a comparative legal scholar is mostly home cooked – amalgam of my own views and some views of assumed from others. There are two sides in this. Fist, my style is necessarily an unorthodox one – a synthesis of many things allowing plural views. I seek to make complicated things simple, not the vice versa. Second, my style may seem quite incoherent for someone who holds a more puristic view. Accordingly, I can quote Zweigert & Kötz and Legrand in a same piece without any qualm at all – and I mean quote approvingly. Yet, I can criticise them heavily in the very same piece. In short, I have no allegiance to any particular school of thought. Whatever works for the given purpose: legislator’s interest is different from that of a scholar or that of a judge. The purpose of the study is decisive, not any particular approach or a school of thought.
For some scholars, this eclecticism may prove to be too much to put up with. (That is not my problem, is it?)