4. There are no doubts that comparative law became a trendy area over the last decades. Are we all comparatists now? Is it not that comparative law is often confused with brief references to foreign law?
I partially answered to this question above but perhaps I can elaborate a bit. To summarise, I tend to say no, we are not all comparatists now. Although, most of us are now more open to non-national legal dimensions. By most of us, I mean legal scholars and lawyers beyond the spheres of public and private international law. Non-domestic dimensions and even global dimensions are these days more common than what was the case in the past. Nevertheless, it does not mean that we would all be comparatists now. Not in a demanding sense of the word.
Regardless, the point on this made by William Twinging makes generally speaking sense i.e. we cannot hide in our national pigeon holes anymore whether we are dealing with comparative law or not. No doubt, much of legal studies are cosmopolitan in a certain sense. Legal scholars and practitioners need to use sources, materials and ideas developed in more than one jurisdiction and in more than one legal culture. Against that backdrop, Twining argues, we are all comparatists now. I see what he means but I fear that he reaches too far in a sense that being “an internationalist” does not make one automatically “a comparatist”.
Now, the second issue on the study of foreign law is a bit complicated. Comparative law is, indeed, many times confused with the study of foreign law. Of course, studying foreign law without making explicit comparisons is not as such comparative study of law. However, I think that writing about foreign law requires necessarily some amount of comparison even though this comparison remains implicit. The more important issue here concerns how we conceive comparative law. If we maintain black and white view, then, study of foreign law is not comparative law. According to this view, study of law is or is not comparative. I think that this is too exclusive view and it would make more sense to distinguish different levels of comparison. If one holds more flexible view, then, it is possible to regard study of foreign law as a kind of a “lightweight” comparative law.
In fact, I would like to defend a flexible view that tries to encompass all sorts of border-crossing studies of law rather than trying to uphold an overly exclusive view. Then again, if study of foreign law is superficial, there are no linguistics skills involved, and the study is more or less mere description of formal law, it would be difficult to argue that it is comparative study of law in any meaningful sense.
Now, why I would like to defend a flexible view has to do with the intellectual history of comparative law. Many times comparatists seem willing to exclude other legal scholars and that leads into a tribe-kind-of-thinking. This kind of thinking makes sure that only die-hard comparatists are allowed into the small circles of comparative law scholars. In my view, that equates to self-inflicted harm. As Vernon Valentine Palmers says, and I fully agree, the message from Mount Olympus must not be that comparative law is automatically and always forbidding and difficult. Instead, it should be accessible and its methods ought to be flexible. Yet, the endeavour of studying law comparatively should not be taken lightly – it is a balancing act, in essence.
5. Your book titled ‘A New Introduction to Comparative Law’ published by Hart Publishing in 2015 provides a very stimulating introduction to the subject. Could you maybe share with us why you chose to name it ‘a new introduction (...)’?
This was very simple. It was going to be just Comparative Law but then Mathias Siems published his excellent book in 2014. Therefore, I did not want to use same title. Then one of my colleagues, who had read the manuscript, suggested that it could be Introduction to Comparative Law, which would be a message also for potential readers and might enhance volume’s possibilities as a global textbook. I thought that it was a good idea. Then I realised that Zweigert and Kötz’s English version of their famous volume was titled An Introduction to Comparative Law. Therefore, I had to somehow signal to potential readership that my book was an introduction but also not similar type of introduction as Zweigert and Kötz’s book; so the epithet New came along.
Breaking from the tradition but not in all-or-nothing manner. Importantly, this may also concern the content of my book. I build on the existing comparative law scholarship without having an urge to depart for the sake of being “original”.
6. In your opinion, what is the role of legal history in comparative law research? Do you see the importance of legal history as having been downplayed in comparative law research?
It has an important role that much is sure. As I see it, many times comparative law and legal history are so much intertwined that they are difficult to tell apart in a successful way. However, it is possible to separate two differing research focuses: legal history studies law in time whereas comparative law studies law in space. This means simply that legal history looks back in time whereas the focus of comparative law is on how law is now. Yet, these fields have lot in common. They both add knowledge to general legal understanding of law, both require in-depth research and both require knowledge of foreign languages (at least – if and when – legal history is not focused on domestic legal history.
For a comparatist, legal historical knowledge is crucial if they seek to explain differences and similarities they find in their research. In many cases, it is legal history that explains the very basic things concerning law: role of legislation, role of case law, role of legal scholarship, mode of legal education, role legal profession etc. Moreover, many times the ability to understand the substance of foreign law is significantly enhanced by knowledge of legal history as it makes it easier to understand the actual content of foreign law in a correct manner.
Lately, the distinction between legal history and comparative law has become pertinent because of the rise of a new discipline: comparative legal history. I have argued that it still makes sense to keep these two disciplines separated even though they have much in common. Comparative legal history is, as such, welcomed addition to the study of law but in practice, it is basically legal history that is done in a manner that crosses the borders of legal systems, legal cultures, and languages.
In essence, it is useful for comparatist to be conversant with relevant legal historical literature. It is not required that comparatists themselves would need to possess all the skills that competent legal historians have. However, comparatists should be aware of legal history concerning the issues they study comparatively. Without at least some kind of legal historical “sense”, comparative law may become “hollow”.
7. In what ways do you think the current Chilean constituent process could benefit from looking at comparative constitutional law?
I am not fully aware of the Chilean situation, yet, I think that one can learn over the borders.
One can do comparative surveys on how similar type constitutional issues are solved in other systems. The idea is not to copy (or “transplant”) but to seek inspiration; to see what works and what does not work and then try to figure out how successful ideas and practices can be used in one’s own system. Crucially, it is not about copying directly good practices or institutions but rather to use them as a raw material that can be used in order to tailor and adapt such solutions that may work well in the legal cultural and political environment in which one’s own system functions.
In essence, it is about looking beyond one’s own, analysing and tailoring. I do certainly not believe in one-size-fits-all type of solutions. Then again, it is always very difficult to predict how even tailored foreign solutions work in a system, in which they are “transferred” to. Gunther Teubner’s famous argument on legal transplants being actually legal irritants is a very important point. He argued that when a foreign rule is imposed on a domestic system, it actually works as a fundamental irritation. Moreover, as such, it may initiate a whole series of unexpected (and unwanted) events.
Teubner’s argument makes clear that we need to take into account the deeper legal cultural level, not just the written/formal law because irritants disturb law’s binding arrangements with other sectors of a society. When it comes to constitutional engineering, this point is extremely important. Accordingly, foreign models may inspire and give ideas but copying them directly as they are in their systems of origin is not a very good idea. Political history and the nature of political system are things that must be taken into account. To put it otherwise, what works perfectly well in one system does not necessarily work at all in another.
8. Is there any advice you would like to share with early-career researchers aspiring to become comparatists?
Based on my personal experience, I would be willing to stick my neck out and give four pieces of advice.
First, read beyond the law regarding your subject i.e. history, sociology, and political sciences are all important but depending on what one studies also economics, linguistics or anthropology may be useful. Sometimes non-scholarly literature may help to understand foreign thinking and mentality. Lawyer does not need to become an expert in these other fields; it suffices to know if they teach something relevant, something that makes it easier for one to understand the law and why it is as it is (or as it seems to be).
Second, it makes sense to develop one’s linguistic skills. Now, one does not need to be able to fluently communicate in the language of the foreign system(s) one studies. It would, nevertheless, be very helpful to be able to read and translate at least some key sources in that language – relying on translations may be risky if one seeks to study foreign law deeper than the mere surface. Notwithstanding, I underline that linguistic skills are not black or white thing (you know well or do not know at all), because there are shades of grey. Besides, grasp of foreign legal language makes it easier to decipher a foreign system even though comparatist remains always “an outsider”. In short, learning languages helps in legal cultural immersion.
Third, one should be ready to change one’s research assumptions and hypotheses. Comparative research process does not go directly forward (like in “exact” sciences) but it works like a hermeneutic circle – study goes back and forth, repeatedly. Hermeneutic circle refers to an idea according to which our understanding of foreign law becomes possible by understanding smaller parts and one’s understanding of the whole is made possible by these smaller pieces of understanding. In turn, individual parts are understood by reference to the whole. This sounds more complicated than what it is because it just means that one learns more and more and because of the growing knowledge one needs to go back to the beginning and made needed changes to one’s research questions, approach, choice of materials etc. Importantly, hermeneutic circle is not a description of a particular method in a technical sense but a description of comparative research process as a whole.
Fourth, comparatist needs a thick skin. To put it otherwise, making mistakes is inevitable. Learning from them is imperative. Sometimes one fails and national experts will put us right although not as gently as we would like to. We may blush and feel shame but, in the end, these humiliating moments should be cherished as valuable learning. This is possible only if we have thick skin, albeit, we should not be thickheaded…
*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).