Article by H. Patrick Glenn
The Canadian law firm of Goodman and Carr advertises regularly in the National Law Journal, which is a widely circulated legal newspaper directed to legal practitioners in the United States. The advertisement consists of a glorious dawn sky, replete with an equally glorious rainbow. In mid-rainbow is the small, lower-case text “get over it,” apparently suggesting that Canada is somewhere over the rainbow, while beneath the rainbow runs the explanation “at Goodman and Carr, our approach to cross-border business is different. We remove the border.” Another Canadian law firm, in advertisements directed to young lawyers, unhesitatingly promises “a limitless future at the borderless law firm.” These advertisements suggest both that national boundaries are disappearing under the effect of contemporary legal practice and that the practice units themselves have abandoned structures limited by national territory. The hyperbole of these statements is not entirely the product of advertising agencies. A sociologist has written recently that globalization means the end not of history, but of geography, in the sense of the importance of geophysical boundaries, while management specialists have spoken of a “borderless world” for at least a decade. What is the significance of this apparent process of removing borders, and what is its relation to comparative law, as it has traditionally been thought? The borders of European nation-states, as we know them, were constructed slowly and with great difficulty from about the sixteenth century. International law teaches that in order to exist, a state must possess defined boundaries and an organized government. How did the states of Europe meet these conditions? They met them by a process of expansion of national territory through the extension of “binding” national law, accompanied where necessary by force. Why was national state law held to be “binding” ? Because it had to overcome existing, nonstate normativity, which was so deeply rooted that only a newer, more compelling form of binding normativity could displace it. Why was territorial expansion necessary? Because the new state law was premised on notions of appropriation and control—deeply rooted in natural law thought—so that expansion of national territory was often indistinguishable from the colonial expansion that occurred at the same time. These ideas were generally acceptable to European populations so, with some resistance, the “fact” of obedience to state law could develop, the underlying assumption of modern, positivist explanations of state law. Put slightly differently, these ideas persuaded most people in Europe to accept the notion of binding, state law in a defined territory, though there was nothing initially that required them to accept these ideas. European people were not initially bound to do so; the ideas have only persuasive force. Positivist legal theory thus today affirms that there is no obligation to obey the law. So binding law may cease to bind, and fixed national boundaries may become unfixed, which we know has happened frequently enough in European history, and even contemporary European history. Removing borders is thus entirely possible, and there is something to the idea of a state as an “imagined political community” or as a “plébiscite de tous les jours.” In positivist language, the continuing viability of borders and binding state law is an empirical matter, which must be investigated as a matter of human conduct. The law firms exaggerate, but something could be going on.
Comparative law, however, as it has traditionally been thought in western law, has rarely been interested in such an investigation, since comparative law has historically been harnessed to an instrumental role in the construction of nation-states. This was the case in their actual construction, from the sixteenth century, as civil, common, customary, and canon law were mined to create the stuff of national law. It has also been the case since their construction, as comparative law has been seen largely as a means of understanding (the taxonomic function) and ameliorating national law. It has been thought of as a domain of specialists, exercised essentially at the doctrinal and legislative level. Legal practice would thus not engage in comparative law, but would exercise its talents within the confines of national substantive law and national private international law (an essentially noncomparative process). The expression “the comparative method” is thus used to indicate the limited and exceptional character of comparative law, as opposed to the apparently noncomparative method of normal national legal practice. And, while the methods of comparison are arguably infinite, comparative law would somehow be bound to a single method, which would consist simply of having some regard to foreign models in the doctrinal and legislative process of national law reform. Comparative law, as it has traditionally been thought, thus appears singularly inappropriate to examine the process by which legal practitioners, often organized on a transnational basis, engage in “removing borders” and challenging the primacy of state law. We are here contemplating a different, and reduced, role of state law and a different, and enhanced, role of comparative law, as it becomes extended to the world of legal practice. We can call this “comparative legal practice,” and it implies an understanding of the circumstances of contemporary legal practice as well as its impact in the resolution of legal problems, both within states and between states.
About the Author
H. Patrick Glenn. Peter M. Laing Professor of Law, Faculty of Law & Institute of Comparative Law, McGill University.
Citation
75 Tul. L. Rev. 977 (2001)