Article by Arthur T. von Mehren
Comparatists fall into one of three camps. First, there are those who see legal systems as differing so greatly in fundamental respects that each is essentially unique. They sometimes see the task of comparative law as consisting only of highlighting these differences; sometimes they use the insights provided by comparative law to improve their own law. A second camp is comprised of those comparatists who believe that our rapidly shrinking world is moving inexorably toward convergence in many areas of law, driven by transnational activities in all spheres of economic and social life; they see their task as helping this convergence come about. Finally, there are those who take the position that neither uniqueness nor convergence now does, or ultimately will, characterize nonlocal law. According to them, until such time as convergence has come about, comparative law bears the responsibility for making clear the degree to which, and the way in which, convergence has occurred and for providing analytical tools that enable jurists from different legal cultures to achieve a shared understanding of their respective intentions, positions, and views. Comparatists map the forests into which practitioners venture and provide concepts and tools of analysis that enable them to find their way. One possessed of comparative law training can better judge whether there is sufficient reciprocity and coherence of interest to justify assuming legal obligations and, if so, how the transaction can best be structured for legal purposes.
In the second half of the twentieth century, the once predominant belief in uniqueness as a characteristic of legal systems has lost ground to the belief in convergence. International conventions have made progress in harmonizing certain areas of law—for example, the substantive law applicable to the international sale of goods. Also, the ancient concept of a lex mercatoria based on the customs of merchants, rather than on state sovereignty, has grown in influence and importance. Today, the convergenist camp challenges even the third camp's view that, in our “globalizing” contemporary world, important elements of diversity will persist. Thus, whole legal areas, for example contract law, in which convergence—real or assumed—has occurred have been systematically restated. Further, such projects for other areas are on their way.
Experience suggests, and reflection supports, the proposition that to achieve a high measure of convergence in private-law matters, two conditions must be satisfied: there must be a supra-national starting point for legal reasoning, and it must be administered by a supra-national judicial system whose judges are trained in a shared legal tradition with a common conceptual structure and common values. Except in regional federations, the likelihood of these conditions being satisfied is small.
Yet even within such systems, convergence is not guaranteed. The seductive quality and elusive nature of convergence are illustrated by the rise and fall in the United States of the doctrine of Swift v. Tyson, decided in 1842. The defendant there argued that the contract whose validity was in issue “[was] to be treated as a New York contract, and therefore to be governed by the laws of New York, as expounded by its Courts.” As expounded by those “Courts, a pre-existing debt [did] not constitute, in the sense of the general rule, a valuable consideration applicable to negotiable instruments.” As a technical matter, whether the Supreme Court was bound by New York's position that a preexisting debt did not constitute consideration turned on section 34 of the Judiciary Act of 1787, a federal statute. Section 34 provided that “[t]he laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.”
The Supreme Court unequivocally rejected the defendant's argument that issues of common law were matters of the “laws of the several states.” Justice Story wrote for the Court:
It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case.
In his opinion for the Court in Erie Railroad v. Tompkins, Justice Brandeis succinctly stated the rule of Swift:
[F]ederal courts exercising jurisdiction on the ground of diversity of citizenship need not, in matters of general jurisprudence, apply the unwritten [i.e. common] law of the State as declared by its highest court; . . . they are free to exercise an independent judgment as to what the common law of the State is—or should be . . . .
The appeal of this position rested on a philosophy of harmonization and on the assumption that justice administered by distinct and sovereign legal orders would converge over time through the effects of economic and social intercourse. As Justice Holmes pointed out in 1917, many jurists had long considered the common law “a brooding omnipresence in the sky.” In a later dissent, Holmes elaborated on the extent to which jurists treated “the common law” as a single corpus:
Books written about any branch of the common law treat it as a unit, cite cases from [the Supreme] Court [of the United States], from the Circuit Courts of Appeals, from the State Courts, from England and the Colonies of England indiscriminately, and criticise them as right or wrong according to the writer's notions of a single theory. It is very hard to resist the impression that there is one august corpus, to understand which clearly is the only task of any Court concerned. If there were such a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute, the Courts of the United States might be right in using their independent judgment as to what it was. But there is no such body of law. The fallacy and illusion that I think exist consist in supposing that there is this outside thing to be found.
In the course of the last half century, the context in which comparative work is undertaken has changed in significant respects. The enormous growth in cross-border and intersystem activity, the far greater economic and political importance of emerging societies, and the greatly increased efforts to facilitate and structure international economic and commercial activity have reshaped old problems and raised new ones for comparatists. An information explosion has occurred that puts enormous demands on the time and energy of those whose task it is to understand and explain these changes and their consequences for the theoretical and practical understanding of law.
Despite these developments, neither the purposes served by, nor the requirements for, the comparative study of law have changed fundamentally in the last half century. I still subscribe to what I wrote nearly fifty years ago:
The comparative study of law can be undertaken with various objectives in mind. A student may, for example, seek detailed information on certain areas of foreign substantive law. Again, his interests can be primarily jurisprudential or historical. Or he may be seeking a better understanding of the institutions and processes of growth of his own legal system. These objectives do not . . . exclude each other—though, of course, differences in emphasis will flow from the student's primary concern. A mastery in fair detail of some part of the law of the legal system under investigation is, in all events, essential before more jurisprudential or historical work can be fruitful. Conversely, a knowledge of the detailed rules of a particular area of substantive law is of little practical value unless informed by insight into the processes of growth and development of the system under consideration and by an understanding of the habits of thought current in that system.
Becoming a competent comparatist has never been an easy task. At the outset, one faces the challenge of mastering at least two distinctly different legal systems with their respective cultures, institutions, methods, and solutions. For this, one must learn not only the systems' languages but also their history and sociology. As the years pass, the comparatist must keep in touch with changes and developments in discrete fields of law and with each system's overall evolution.
About the Author
Arthur T. von Mehren. Joseph Story Professor of Law Emeritus, Harvard University.
Citation
75 Tul. L. Rev. 1215 (2001)