Article by Mathias Reimann
Meeting for the centennial of the Paris Congress of 1900, widely considered the birth hour of modern comparative law, is a welcome occasion to celebrate our discipline's past accomplishments as well as its current revival in many parts of the world. More importantly, however, it provides an opportunity to reflect upon the difficulties and problems that beset the field. The most widespread concern is, perhaps, that in most places in the world, comparative law does not play nearly as prominent a role in legal academia and practice as befits our age of globalization (real or perceived). Comparative law should occupy a central place in an environment in which transboundary issues have become routine. However, all too often, our discipline “fail[s] to excite the imagination of students and practising lawyers.”
In recent years, many of the potential reasons for this situation have been articulated: the lack of the discipline's sense of direction, the weakness of its theoretical foundations and methodological tools, and the dubious nature of many of its presumptions and premises, to name just some of the most salient issues. Yet, there is a fundamental deficit that has by and large gone unnoticed but that may be more responsible than any other problem for the marginal status of our field: comparative law is badly out of date because it is premised on the legal reality of an age long left behind.
I discuss this deficit in three steps. I first explain the problem by showing how comparative law fell behind the times. By sticking to the concept promoted by the Paris Congress, i.e., the comparison of national legal systems, our discipline has failed to integrate the transnational regimes that have become so prominent in the second half of the twentieth century. As a result, it remains blind to a large and increasingly important part of legal reality (I.). The effects of this partial blindness are serious. It hampers our discipline's scholarly agenda, distorts its message in teaching, and greatly reduces its relevance for modern legal practice (II.). The remedy must be to integrate the study of transnational regimes, such as the European Union (EU) or the World Trade Organization (WTO), into mainstream comparative law. This will require a partial redirection of our efforts. While some of this can be done with traditional tools, other parts present serious challenges (III.).
As should be clear even from this brief road map, I am not concerned with our discipline's utility for transnational law. Of course, comparatists recognize the value of comparison for the making and application of public and private international law, and they emphasize the promise their discipline holds for legal harmonization and unification. Its role in developing uniform law has been a routinely reiterated theme from the Paris Congress to the present agenda of creating a common private law of Europe. Like Rodolfo Sacco, I tend to be somewhat skeptical about the importance of our discipline in this context, but I take no position on that question here. Instead, my argument in this Article is that comparative law has failed, but urgently needs, to make the study of existing transnational law an integral part of its agenda.
About the Author
Mathias Reimann. Hessel E. Yntema Professor of Law, University of Michigan. Dr. iur. 1982, Universität Freiburg; LL.M. 1983, University of Michigan.
Citation
75 Tul. L. Rev. 1103 (2001)