The King's One Too Many Eyes: Language, Thought, and Comparative Law

Utah Law Review Utah Law Review

Volume 2002Number 4

Article 4

1-1-2002

The King's One Too Many Eyes: Language, Thought, and The King's One Too Many Eyes: Language, Thought, and

Comparative Law Comparative Law

Igor Stramignoni

The King's One Too Many Eyes: Language, Thought, and Comparative Law

Igor Stramignoni*

The finest discoveries concerning culture are made by the individual man within himself ....'

And now, in this philosophical-philological space opened up for us by Nietzsche, language wells up in an enigmatic multiplicity that must be mastered2

A. Venice

What is comparative law? Surely that is an important question to ask, and law.3 No doubt, yet, one largely abandoned by mainstream comparative comparative law must be about comparing law's many domains. That is, it must be about the practice of comparing law's words, people, and currency (law's currency being whatever needs law may from time to time represent). However, to think about comparative law as the practice of comparing legal domains does not yet tell us what comparative law might be-what the heartland of comparative law might be. Some light, one would think, might come from looking at those who are involved in comparative law. Comparative lawyers, it is often repeated, are like travelers-but, then, what is traveling? Indeed, traveling must be about going to places, meeting new people, and discovering new things-thus, in a way, shortening the distance between the traveler and the people and places he visits. So, too, comparative law must be about shortening distances. Yet,

despite the fact that both the question (what is comparative law?) and the answers might seem to be reasonably straightforward, both the question and the answers hide more than they disclose. A closer look, that is, might reveal how that which is comparative law cannot be the same as its practice or, indeed, its many practices-just as that which is technology turns out to be something other than the technology itself4

In Italo Calvino's Le citta invisibili, Kublai Khan asks Marco Polo about his travels.' It is an odd moment. The emperor is wondering why Polo's report is not, as expected, about famines, extortion, or conspiracies, nor, for that matter, about turquoise mines, marten furs, or damascened blades.6 Instead, the Venetian seems to be concerned with the common thoughts "that come to a man who sits on his doorstep at evening to enjoy the cool air."7 What, then, is the point of traveling-Kublai asks, perplexed-if not to collect some useful information about extraordinary people and places?' Polo's reply seems somewhat obscure: should Polo really tell the emperor about his travels, the tale would only convey a story already commenced in the emperor's mind long before he had even met Polo.9 Kublai insists but Polo remains unforthcoming with what the emperor would like to hear.'0 "In fact, they were silent, their eyes half-closed, reclining on cushions, swaying in hammocks, smoking long amber pipes."" Yet the question hangs in the air, so Polo imagines what he would say, should he be able meaningfully to reply to the emperor-aware though he is that, probably, his answer would puzzle Kublai even more. No doubt, Polo travels so that he can visit new places, meet new people, and discover new things-but can travelers ever hope to meet whatever lies ahead of them on its own terms? Or do travelers risk, instead, remaining forever foreign-both distant from their own past and never quite close enough to whatever else lies ahead? Interestingly, Polo has made the following discovery:

[T]he more one was lost in unfamiliar quarters of distant cities, the more one understood the other cities he had crossed to arrive there, and he retraced the stages of his journeys. And he came to know the port from which he had set sail. And the familiar places of his youth. And

the surroundings of home. And a little square of Venice where he gamboled as a child.2

So, Polo has discovered how, first of all and somewhat surprisingly, traveling is about shortening the distance not to what lies ahead but from what is left behind. Polo, in other words, has understood how the past lies not in the past, but somewhere in the future-and to experience that is the point of traveling. The past is always an open space in front of the traveler, at the beginning of time-so one must move on if one is to reduce the distance from that past. "[A]rriving at each new city, the traveler finds again a past of his that he did not know he had: the foreignness of what you no longer are or no longer possess lies in wait for you in foreign, unpossessed places."'3

Traveling, on the other hand, might still be problematic-precisely because it is an encounter with one's own past. A traveler's gaze might be all too quick to identify what, in fact, the traveler set out to find-that is, whatever resemblance there might be with the place he has always had in mind.

[T]he man who is traveling and does not yet know the city awaiting him along his route wonders what the palace will be like, the barracks, the mill, the theatre, the bazaar. In every city of the empire every building is different and set in a different order: but as soon as the stranger arrives at the unknown city and his eye penetrates the pine cone of pagodas and garret and haymows, following the scrawl of canals, gardens, rubbish heaps, he immediately distinguishes which are the princes' palaces, the high priests' temples, the tavern, the prison, the slum. This, some say, confirms the hypothesis that each man bears in his mind a city made only of differences, a city without figures and without form, and the individual cities fill it up.'4

If Polo's thoughts are to be taken seriously, then the question of comparative law-the question of comparing legal domains-becomes not so much whether comparative lawyers will ever be able to understand unfamiliar laws, unfamiliar institutions, or unfamiliar cultures (or unfamiliar aspects of familiar laws, institutions, cultures). Rather, the question is whether comparative lawyers can ever access what already belongs to them-that is, the otherness of their own past or that of the people, places, or things that inhabit that past. Can travelers-as they go from place to place-ever experience, can they ever grasp the splendid singularity of Constantinople, Samarkand, or Beijing-or is it perhaps the case

that they will only continue to celebrate, no doubt unwittingly, the uniqueness of Venice? And so with comparative lawyers: can they ever go past certain differences that, upon closer inspection, might turn out to be not much more than a celebration of sameness? And what, along the way, might they encounter if they did? They might encounter Zoe:

In every point of this city you can, in turn, sleep, make tools, cook, accumulate gold, disrobe, reign, sell, question oracles. Any one of its pyramid roofs could cover the leprosarium or the odalisques' baths. The traveler roams all around and has nothing but doubts: he is unable to distinguish the features of the city, the features he keeps distinct in his mind also mingle. He infers this: if existence in all its moments is all of itself, Zoe is the place of indivisible existence. But why, then, does the city exist? What line separates the inside from the outside, the rumble of the wheels from the howls of the wolves?5

Travelers visiting Zoe face an unexpected dilemma. Zoe is a special place. Unlike ordinary cities, Zoe is the city of the "indivisible existence"-where existence "in all its moments is all of itself." Zoe, in other words, is the city where each difference disappears into the unity of the whole. But, if existence is indivisible, why then does the city exist? What is the relationship between the reality of the whole and the reality of Zoe? And what separates the whole from its place-"the rumble of the wheels from the howls of the wolves"?

Because time for thinking and quietness in thinking are lacking, one no longer ponders deviant views.., and everyone is like the traveler who gets to know a land and its people from a railway carriage.... Such a lament as has just been sung will probably one day have had its time and, when the genius of meditation makes a mighty reappearance, fall silent of its own volition. 6

[I]n the Classical Age, discourse is that translucent necessity through which representation and beings must pass-as beings are represented 'to the mind's eye, and as representation renders beings visible in their truth.17

A. A Useful Method

law seems to have

Traditionally, the heartland of the social sciences lies, of course, in man 1-but one of the most striking features of the social sciences in the latter part of the twentieth century seems to have been the crisis of all metaphysics of the limits (god, man, and society) and the consequent encounter with the void.'9 After World War II, the fall of the Berlin Wall and now 9/11, Polo's discovery of Zoe can thus be employed as an appropriate if unsettling metaphor to describe the crisis and the encounter-a crisis and an encounter that, so far, mainstream comparative largely ignored. A sense of persisting "foreignness" and "difference" has in recent decades invested Western thought and its sense of purpose-a realization of how often human knowledge and progress can be deceptive and deeply undemocratic tools for the reproduction of predetermined, external, and often oppressive standards of behaviour.20 Such a realization has come together with a corresponding awareness of the void engendered by such tools around whatever norm they were built to impose. In such a void all things different-the unholy, the impure, the irrational, and the illegal-had been made, for centuries, quickly to disappear. Yet, this is a void that twentieth century Western thought has suddenly come to experience as more lively than ever-what promise, what resilience, and, at times, what ferocity can be hidden within its depths. Hence, a sudden sense of not quite knowing anymore what, precisely, the object of each discipline and the purpose of pursuing that discipline might be has spread with renewed vigour amongst the social sciences. Despite what has happened in the social sciences-despite what has been aptly called an "implosion of reality"'' , and despite the reflexivity that has ensued 22-mainstream comparative law seems to be doing generally quite well. There might be disagreement as to what precisely the method of comparative law

might be,23 but there seems to be hardly any uncertainty in regard to the fact that comparative law has an object and a purpose:

Before we try to discover the essence, function, and aims of comparative law, let us first say what "comparative law" means. The words suggest an intellectual activity with law as its object and ..The extra dimension is that of comparison as its process. internationalism. Thus "comparative law" is the comparison of the different legal systems of the world.24

To be sure, some nagging doubts about what the use of legal comparisons might be have been there all along-ever since the early warning given to the King by his counsel: "In truth, my prince, people-as I recall having told you before-do not like comparisons."25 On the other hand, the emergence of the nation states, the spread throughout Europe of an ever-growing body of lex mercatoria, and some crucial regularities amongst law's various domains in Western Europe (for example, the diffusion of legal treatises such as St. Germain's Doctor and Student in sixteenth century England)-must have promoted the cause of legal comparisons considerably.26 But when, later on, legal comparisons became the subject of modern comparative law, the new social science came to experience a series of ups and downs that have never since ceased to frustrate its bolder aspirations.27 Thus, for example, it was never entirely clear what specific place amongst the social sciences-and, consequently, within the academic syllabus-comparative law might have.28 Or, even more disheartening,

the basis that comparative

comparative law was never quite taken seriously by politicians.29 Yet, despite the realities of such unsure modem development, today's wider and more problematic predicament of the social sciences-what it is that they can achieve and what the point is of achieving it-appears to have left mainstream comparative law blissfully unconcerned.3" Though not long ago one distinguished academic admitted that comparative law might still be "a subject in search of an audience"3'-on law "has failed to excite the imagination of students and practicing lawyers and ... judges"32--on the whole, there seems to be some considerable intellectual aplomb amongst the vast majority of comparative lawyers when it comes to discussing the identity, virtues, and desires of their subject. To the extent that these are determined by the "thing" that comparative law studies, it seems to be quite clear what such a thing, and what the point of looking at such a thing, might be. As for the audience, the tide seems today to be slowly turning, and more and more students, practicing lawyers, judges, and academics appear to be warming to the subject and its glamour.

So, what, according to mainstream comparative law, is the thing that constitutes the object of comparative law? And what is the purpose of looking at such a thing?33 Comparative law as a modem academic subject is conventionally said to have been born in the second half of the nineteenth century,34 and its object and purpose have been found to rest, at first, on the comparative observation of

the nature and development of legislation;35 on the support comparative law might provide towards the development of a universal legal history;" and even on the establishment ofa droit commun del 'humanit1.37 Later on, the object and purpose of comparative law have been found to lie in the task of discovering the best applicable rule in a given socioeconomic context;38 in the ideology and legal techniques that distinguish the various legal families;39 in the style of such families;40 in the interpretation of the legal knowledge produced by European civilization;41 in the study of four ideal types of legal systems;4 and in the diverse visions of law held within each legal family.43 Finally, from yet another point of view, comparative law's object and purpose have been located in the unification, integration, and harmonization of laws and, in particular, of international commerce;44 in the recognition of the "common core" of legal systems;45 in their

convergence (or nonconvergence);46 and in the acknowledgement of the centrality

of legal transplants in legal change.47 While, initially, comparative law seemed to be mainly concerned with legal rules in their own right-we can call this "formalist" comparative law-the focus has long ago generally shifted to the solutions adopted by the world's legal domains (systems, traditions, or cultures).48 Thus, for example, John Henry Merryman invites us firmly to abandon legal rules (H.L.A. Hart's "primary rules of obligation'49) in order to look, instead, at the legal system's own boundaries (extension and penetration), internal logic (culture), and component parts (structures, actors, and processes).5" Because the newer approach encourages the appraisal of the world's legal domains in terms of their own reciprocal differences, we can call this "relational" comparative law. Most 'of today's mainstream comparative law is, thus, safely understood as relational comparative law.

Konrad Zweigert and Hein K6tz are two eminent scholars whose work has made a great and lasting impact on the Anglo-American academic world.5 For them, as we have seen, comparative law is the comparison of the different legal systems of the world. That is to say, the object of comparative law is constituted by the different legal systems of the world compared. In particular, there will be, on the one hand, macrocomparisons and, on the other hand, microcomparisons. Macrocomparisons focus on the "methods of handling legal materials, procedures for resolving and deciding disputes, or the roles of those engaged in the law," whereas microcomparisons focus on "specific legal institutions or problems, that is [on] the rules used to solve actual problems or particular conflicts of

interests.",2 So, the object of comparative law unfolds into an open-ended network of legal solutions that await the scrutiny of the legal comparatist. But how should such scrutiny be carried out?

The basic methodological principle of all comparative law is that of functionality. From this basic principle stem all other rules which determine the choice of laws to compare, the scope of the undertaking, the creation of a system of comparative law, and so on. Incomparables cannot usefully be compared, and in law the only things which are comparable are those which fulfill the same function. . ..The proposition rests on what every comparatist learns, namely that the legal system of every society faces essentially the same problems, and solves these problems by quite different means though very often with similar results. The question to which any comparative study is devoted must be posed in purely functional terms; the problem must be stated without any reference to the concepts of one's own legal system.3

The revolutionary impact of the functional-equivalence method lies in that, at a closer look, it quietly replaces legal items (legal rules, institutions, or procedures) with the legal function served by those items as the true object of comparative law. This approach of course has helped to establish comparative law as a modern scientific method. As to the purpose of comparative law, it is clear nowadays how

[b]elief in progress ... has died. World wars have weakened, if not destroyed, faith in world law. Yet despite a more skeptical way of looking at the world, the development and enrichment of comparative law has been steady. Comparative lawyers have come to know their field better, they have refined their methods and set their sights a little lower, but they remain convinced that comparative law is both useful and necessary. Scholars are more resistant to fashionable pessimism than people in other walks of life; they have no immediate aim, only the ultimate goal of discovering the truth. This is true also of research in comparative law; it has no immediate aim. But if one did want to adduce arguments of utility, comparative law ... by the international exchanges which it requires, procures the gradual approximation of viewpoints, the abandonment of deadly complacency, and the relaxation of fixed dogma. It affords us a glimpse into the form and formation of legal institutions which develop in parallel ... and permits us to catch

sight, through the differences in detail, of the grand similarities and so to deepen our belief in the existence of a unitary sense of justice.54

The purpose and vitality of comparative law are thus unequivocally recounted by the enthusiasts of the functional-equivalent method.55 Comparative law might have no immediate aim, but it exists for a reason.6 Crucially, it widens one's own point of view and it allows one to observe other legal systems and their workings. Also, it helps us to "catch sight.., of the grand similarities and so deepen our belief in the existence of a unitary sense ofjustice."57 On the practical side, proper comparison (that is, not just descriptive comparison) will be useful as, amongst other things: an aid to the legislator; a tool of construction; a component of the curriculum of the universities; a means towards the systematic unification of law; and a step towards the development of a private law common to the whole of law is that it is a useful Europe. method--one that helps us come to grips with the realities of the legal sphere.59

In short, the point about comparative

(Beschreibung) and other-than-description,

subscribing to, Martin Heidegger's existential-phenomenological approach, meditating thinking is original thinking, "other-thinking"-and, as such, is both description representation (Vorstellung) and other-than-representation.63 We will return to this concept throughout the rest of this Article, but, for the moment, suffice it to note that thinking about comparative law as meditating thinking does not, of course, lessen the importance of comparative law as calculating thinking, which remains unarguably a useful exercise. Indeed, comparative law as meditating thinking comes after comparative law as calculating thinking-though, in so doing, it might turn out, eventually, to precede it.

B. A (More Decidedly) Humanistic Practice

There can hardly be any doubt that modem comparative law has managed to bring about a wealth of useful information about the world's legal domains (law's words, law's people, and law's currency), thereby shortening the distance between one domain and the other. In that sense, comparative law is a useful method-an instrument that works. Take, for example, the current, ongoing process of globalization. Whether one likes it or not, such a process appears to owe much more to comparative law than may so far have been noticed or acknowledged. 6 But has the instrument of comparative law succeeded in bringing about any higher degree of closeness amongst the domains about which it has so competently collected such a wealth of useful information?65

One other important group of researchers within mainstream comparative law stress how comparative law should pay rather more attention to context, of which the legal domains observed are but one expression. Context, here, means, in particular, "history" (e.g., culture, ordinary language, politics), that is, the actual environment of law. Pollock was long ago convinced that law could not be understood without history and, in turn, Maitland was famously keen to stress that history must involve comparison.66 Along those lines, Gino Gorla pointed out (paraphrasing Maitland) in

too, should not be made

that comparisons,

interest-constitutes an

... But this is not all. Comparative law-and for many this is its principal instrument for a renewed study of our own legal science .... The withdrawal by jurists into the exclusive study of their own law means that they may become mere technicians, inept to guide, as is their mission, its development.v2

indispensable

Take, for example, the doctrine of separation of powers. That doctrine, argues Merryman, clearly constitutes a "French deviation" from a wider,

legal tradition that, according to Gorla and his school, had longstanding characterized and, to a considerable extent, united much of European law up until the nineteenth century.6 So, one might legitimately ask:

Does the accumulated legal culture of Europe, the product of more than twenty centuries of continuous experimentation, development and refinement, contain within itself a body of empirical legal results that are in some important sense valid? Is there a Europeanjus comune that has such enormous historical mass and inertia that fundamental change is beyond the power of reformers, even of revolutionaries? Is the same true of the Anglo-American common law? Of all of western law? Of all the great legal traditions?77

Stress on difference in order to discover underlying commonalities is, of course, all well and good, but the problem is that the commonalities discovered can promote imperial power structures78 as well as be economically not so desirable79-indeed, they can push certain differences to the margins until they disappear, and they are then forgotten. Moreover, searching for commonalities entails of course the problem of comparability-whether and how we might compare what is fundamentally different.8" Answers to such problems are sometimes framed in terms of the convergence of legal systems,8' legal education and legal science,82 or both83-while Pierre Legrand argues that, in fact, it is illusory to believe that Western legal systems might be converging in any meaningful way:

Indeed, if one forgoes a surface examination at the level of rules and concepts to conduct a deep examination in terms of legal mentalks, one must come to the conclusion that legal systems, despite their adjacence within the European Community, have not been converging, are not converging and will not be converging. It is a mistake to suggest otherwise. Moreover, I wish to argue that such convergence, even if it were thought desirable (which, in my view, it is not), is impossible on account of the fact that the differences arising between the common law and civil law mentalits at the epistemological level are irreducible.84

So, is comparative law illusory? Is the comparatist ever able to successfully leave his past behind and understand the other? An important group of "dissident" comparative lawyers objects to mainstream comparative law in a way that is both challenging and refreshing. Giinther Frankenberg, for example, suggests abandoning "the notion of cultures or laws as objects whose reality can be grasped, represented wholly and classified systematically.""s Instead, he invites us to engage in what he calls "critical comparisons" that "recognize that new always and inescapably reveals old.86 Critical comparisons, then, would be rooted in "learning experience," demanding a change in one's "cognitive status quo" in order to allow "new and old knowledge [to] enter into a dialogue with each other [whereby] their respective claims to completeness, authenticity and truth are mutually questioned and tested."87 In particular, such a "dialectic of learning" will require both "distancing" and "differencing..88 "Distance is needed to gain a vantage on who we are and what we are doing and thinking.... Distance de-centers our world-view and thus establishes what might be called objectivity."89 On the other hand, "By differencing we not only develop and practice a sharp sense for diversity and heterogeneity but, more importantly, we make a conscious effort to establish subjectivity, that is, the impact of the self, the observer's perspective and experience, is scrupulously taken into account.90 Frankenberg is not troubled by what appears to be a rather paradoxical intellectual enterprise. While the rationalist belief in the neutrality of comparisons based on

the idea, the development, and the function of law is naive, one should avoid the temptation to believe that objective comparisons are impossible.9 Instead, that one understands how objective comparisons are possible-provided subjective they can be. In particular, critical comparisons only claim "to elucidate the path of a dialectical learning experience involving the self and the other,,92 thus positioning themselves between ethnocentrism and ventriloquism.93

A dialectical learning experience, in sum, would require the comparatist to

transcend perspective. But how can we achieve this?

To transcend perspective means to realize that we use our language, which is culture-based, to grasp what is new and seemingly other than us. While the self, our cognitive history and its baggage of assumptions and perspective, cannot be disposed of at will, we can still try to honestly and consciously account for it, exposing it to self-critical reexamination. Though using our language is necessary, there is no a priori truth or universal logic to how we use it. That is why comparative work could be enlightened by a skeptical attitude toward allegedly authentic interpretations and universal categories.94

Decisive insights into the problem of comparability (on which, as we have seen, mainstream comparative law offers little insight) are offered by another eminent "dissident" comparative lawyer-Rodolfo Sacco. For Sacco, comparative law builds on the existing "plurality of legal rules and institutions ... [i]n order to establish to what extent they are identical or different.'95 But that is not to say that fundamental differences constitute an insurmountable problem. All to the contrary, comparative law is particularly well equipped to deal with them. For comparative law, like other comparative sciences, employs comparison, and "[c]omparison measures the extent of differences be they small or large."96 Thus,

properly viewed, the problem of comparability is not so much how large some differences might be. Rather, the problem is that comparative lawyers should point the instrument of comparison in the right direction-namely, towards the problems of language and, in particular, the translatability of legal terms. That is, in turn, a complex exercise that can be especially productive in view of the comparative lawyer's specific agenda. Such an agenda, in particular, should be geared to the search for the many different elements of a "living law"-which Sacco, borrowing from phonetics, calls "legal formants.''97 Legal formants do not need to point to a single rule or to consistency-and, on the other hand, they themselves do not need to be uniform or, for that matter, noncontradictory.9'

Thus, according to Sacco, a detached observation of legal formants shows that disharmony, and not harmony, is what characterizes the different legal systems.99 Furthermore, such an observation highlights the fact that some legal formants are not explicit, yet absolutely crucial to the understanding of the various legal domains."'0 Such inexplicit legal formants Sacco calls "cryptotypes."''l

As long as we confine ourselves to the study of a single legal system, we will be forced or at least, we will be induced to try to capture its features in a synchronic systematic view. We will try to see statute, scholarly formula, proposals for change, the tradition of the schools, the arguments of judges, and the holdings of cases as compatible with one another. The study of domestic law does not allow us to reject completely the great optical illusion founded on the synchronic view. We do not reject it until we find in different legal systems that identical ... applications are produced by different statutes or different scholarly

formulas, and so forth. The discovery of legal formants diverging from the explicit formulations of a system leads us to the identification of cryptotypes. We realize we are in the presence of a non-verbalized rule when we see a decision is made differently than the one we would envision from the rule as formulated. These implicit patterns play the fundamental role in the law of many so-called primitive societies. By careful analysis, we can see that they play an important role in developed societies as well.°2

While important dissident thinkers, such as Frankenberg and Sacco, are right to stress the central role played by ordinary language in comparisons, they fail to carry their critique through to its more radical consequences. No doubt, language belongs to lawyers and, of course, it belongs equally to comparative lawyers-for all must use language to do their job.103 But, more originally and more radically, lawyers and comparative lawyers alike belong to language. 104 Thus, while clearly the effort must be "to get used to the idea that law is a ubiquitous, amorphous, and ambiguous phenomenon,"''05 what that implies is somewhat distant from the effort, necessary and useful though that is, to mediate between subjectivity and objectivity. Furthermore, stress on difference (whether on functional, efficiencyrelated, historical, or linguistic difference) can only be accompanied by the demonstration that "the pursuit of the wisdom anchored in particularity need not produce politically unacceptable stereotypes."''6 How, then, might we discover and guard-and can we discover and guard-both commonalities and singularities within law's many domains?

And the first characteristic with which this analytic will mark man's mode of being, or rather the space in which that mode of being will be deployed in its entirety, will be that of repetitions-of the identity and the difftrence between the positive and the fundamental. .

A. (Meditating) Thinking, Language, and Poetry

To think about comparative law, therefore, as mainstream comparative law does-as a useful method (instrumentum) or as a more decidedly humanistic practice-is all well and good, but it does amount to calculating, instrumental thinking that tends to represent law's words, people, and currency as natural or quasi-natural objects perceived to be lying somewhere "out there." This approach is confusing. It confuses what comparative law is-the heartland of comparative law-with its practice (indeed, its many practices). Or, which is the same, it confuses comparative law with what can only be mere aspects of comparative law.'08 Such a confusion leads mainstream comparative law to be often unaware of, or indeed ignore, the depth of the comparatist's involvement with her own past-one, in particular, that can only lie in front of her, at the beginning of time. 19

Yet, if comparative law cannot be merely what mainstream comparative law thinks it is-a rich but somewhat unidirectional range of practices concerned with function, efficiency, or linear history-neither can comparative law be merely about ordinary language-as argued by critical comparative law. For language, too, is, in its usual meaning, a practice of sorts. As such, function, efficiency, history, and ordinary "challenging" (Herausforden)-a regulating and securing."' Thus, while critical comparative law is to be preferred, for it rightly brings out the ubiquitous role played by ordinary language in the comparatist's comparisons, what critical comparative law fails to see or to acknowledge is the deeper, more radical relationship there might be between language, the comparatist, and the domains he or she aims to compare.

language alike are-borrowing from Heidegger-a

If the originality of comparative law can lie neither in its use of function, efficiency, or history, nor in its use of everyday language-what, then, is the originality of comparative law? The originality of comparative law, it is here suggested, must lie in the revealing of what is to be brought forth through comparison. We will see shortly what is meant by that.11' For the moment, suffice it to say that such a revealing has, of course, nothing to do with any particular "revealed truth"-whether religious, theological, or metaphysical. Instead, there is purely immanent self-unconcealment. As such, the revealing in question is other than, albeit related to, the practice (or many practices) of comparative law-just as it is thus other than, though equally related to, the ordinary languages by means of which that which is talked about is thus let out of unconcealment. But what, then, is to be brought forth through comparison?

Before an answer to such questions can slowly begin to emerge, it is important to understand in what way comparatists-as, drawing from Heidegger, poetic comparisons of law suggest-belong to language. 12 Belonging to language is not, of course, a privilege of lawyers or a privilege of comparative lawyers alone. Instead, Heidegger points out how it is man who belongs to language. Surely, this will seem (at first) somewhat of a bold statement to make-one clashing with a long-standing Aristotelian tradition of making language the distinctive attribute of man. So, the boldness of the statement compels us to ask what, for Heidegger, language might at all be. "[L]anguage is language," is the answer-and "language speaks.""' ' And, indeed:

If we let ourselves fall into the abyss denoted by this sentence, we do not go tumbling into emptiness. We fall upward, to a height. Its loftiness opens up a depth. The two span a realm in which we would like to become at home, so as to find a residence, a dwelling place for the life of man."4

In other words, only upon such "falling upward" will it become clear that "[i]n its essence, language is neither expression nor an activity of man."' 5 If, in particular, we make such a leap forward "into a height," we discover that to say that "language is language" and "language speaks" is emphatically not to deny that man is the being who speaks. By contrast, we will realize that "language is language" and "language speaks" only means that language names and naming calls, and it is thus in relation to the speaking of language-to its naming and calling-that human speech can be found to rest.' 16

Language, however, speaks "in what is spoken," and that is, of course, a problem-for "most often, and too often, we encounter what is spoken only as the residue of a speaking long past."' 7 Hence, for example, the problem of historical

(and, one should add, legal) memory-whether written or unwritten, whether a painting or a sculpture-is not only what it forgets but, just as well, what it constitutes as a memory. ' So, how can we-how can the comparatist poet-start her journey on the way to language when what is spoken is often only "a residue of a speaking long past"?".9 We must resort, Heiddeger suggests, to "that in which the completion of the speaking that is proper to what is spoken is, in its turn, an original."'2° That is, we must resort to poetry.

Whether or not one agrees with the pessimist's view that poetry may have come to an end, a link between language, (meditating) thinking, andpoetry is thus firmly established. By poetry Heidegger means neither poetry as literature (that is to say, something concerned with representational speech) nor poetry as an exercise are mere representations)-for (meditating) thinking can only be image-less (bildlos). Instead, Heidegger notes, "Poetry is what really lets us dwell. But through what do we attain to a dwelling place? Through building. Poetic creation, which lets us dwell, is a kind of building."''

concerned with

like words,

(which,

images

What is so important about poetic dwelling-about poetic building-is its temporal, yet nonchronological direction. In the sense suggested by Heidegger, poetry is no longer directed upwards towards a metaphysical self-or towards a God who is no longer there.122All to the contrary, now poetry is directed forwards, towards the very center of man and his world.23 That is, poetry is both radically immanent and the Eternal Return of the Same. 124

Thus poetry takes man back to earth or, which is the same, it brings him forward into his dimension-into his multifold dimensions. For, indeed, poetry is-in Heidegger-some sort of radical measure-taking. It is measure-taking, that

is

forever blind-well before becoming blind. That the unspeakable possibility-the impossibility-which Tiresias had tried, unsuccessfully, to tell his King. Again, upon a closer look, Tiresias is no oracle, nor is he a prophet. Nor are comparatists either oracles or prophets. Rather, Tiresias is a poet-someone who can tell the difference and so guard the possibility of that which is impossible. Comparatists, too, are poets. How so? Comparatists are poets in that they, too, can tell the difference-and they can tell the difference because they are forever distant from that which is dearest to most, distant from home. Here, by distance, one need not necessarily understand physical distance. Physical distance there may or may not be. Either way, that is not what makes-of a comparatist-a poet. Travelers, after all, travel physical distances-but, then, they get to know a land and its people only "from a railway carriage."'33 Instead, comparatists are poets for they wander rather than travel. They go forever away rather than travel to another place (whether or not they leave their doorsteps is unimportant). Indeed, comparatists are poets for they incessantly wander-from Venice to Constantinople, from Samarkand to Beijing-although, ostensibly, they are not directed anywhere. Comparatists go forever away-and yet, in doing so, they come closer than ever to that from which, each time, they distance themselves. Like Heidegger's poets (and other fellow wanderers), comparatists are poets for they know that, when they arrive at another city, they might be able to enter it, but they will be unlikely to access it. That, in particular, means only that, like Polo, comparatists know how they will never be able to leave behind the horizon that has accompanied them since they left their native Venice. At the same time, comparatists are poets for they also know that, having left their native Venice, they will no longer be of that place as they used to be before. Instead, comparatists, like poets, are aware that they will now remain forever at its margins-neither within nor outside its precinct. They may be able, of course, to go back to that native place-and, once back, find again the old streets of their childhood. Yet, they know that they will no longer be there like they were in the past, while perhaps discovering that that is where they really belong. To be sure, comparatists may find refuge within the new places they visit. Indeed, they may find their way in and walk through and learn about new shapes and new colors-catch, perhaps, some hidden views, and even meet some exotic inhabitants. But they also know that they will never be fully ofthose new places. Each new place will remain, for them, forever distant-its splendid singularity forever enchanting, its severe otherness forever oblivious. And yet, comparatists are poets for they poetically dwell in that distance (that is what is meant by saying that they are "forever distant"), like Tiresias dwells in his blindness or Polo in his unyielding silence. In that distance-in that space of indifference where all differences are still possible, outside the walls of the native city and at the gates

of another, wanderers rather than travelers, neither of one place nor of the other and, yet, closer to both than ever before-comparatists can think the experience of difference. In that distance, that is, comparatists poetically dwell-and, in that distance, they are closer than most to that which is spoken by it. Indeed, "[language is the house of Being. In its home man dwells. Those who think and those who create with words are the guardians of this home."'134

Comparatists, like poets, can tell the difference-and that is, perhaps, the heartland of comparative law, that is where comparative law's originality lies. The originality of comparative law lies in that, in each case, comparatists can tell the difference that the law makes and that they are going to say. We will shortly return to what is here meant by "difference.'35 Suffice it to say, for the moment, that the difference poetic comparison can say is, in each case, not so much the sort of external differences about which mainstream comparative law frantically concerns itself and which, useful as they can be, treat law's words, law's people, and law's currencies as natural or quasi-natural objects lying "out there." Nor is the difference that, in each case, comes with the many languages through which that which is spoken of is everyday said. Rather, such difference is that which, in distance, language continuously makes-the incalculable trajectories and multiple planes that in distance language inexhaustibly draws. Hence, the responsibility of the comparatist-poet. The comparatist-poet can tell the difference because he is closer to it than are most others-closer than those who never leave home or, alternatively, frantically travel to ever different places. And comparatists can tell such difference insofar as they, too, like Heidegger's poets and thinkers, are guardians of language-the language in which man dwells. As such, comparatists, like poets and thinkers, are neither inside nor outside language; rather, they are there, by it, at its ever shifting margins. At the margins of language, neither in it nor outside of it, comparatists are experts of law's differences, of the difference the law makes. Comparatists can tell the difference the law makes precisely in that, forever distant, they let world and things manifest themselves before they set out to say them. They can thus tell the difference for they listen to distance-and notftom a distance (as critical comparative law often suggests). As they listen to distance, comparatists, like poets and thinkers, are closer to it and to that which is spoken by it. Being so close, comparatists come thus after that distance (not before it)-though, in so doing, they somehow precede every distance, they it become manifest. Comparatistsprecede every difference, by poets-these guardians of distance who, to be sure, are no distant guardians-let what is to be brought forth through comparison come to unconcealment so that it may, then, be fruitfully compared.

letting

is

to be brought forth

through comparison.'4' unconcealment, of what Etymologically, to compare means to lay out together (cum-parare). What is laid out together comes to appear at the same time, it appears together, it coappears-but, then, what is it that now appears? Mainstream comparative law provides no answer to such a question while critical comparative law's focus on language does not seem to have succeeded, so far, in bringing about truly radical alternatives to mainstream comparative law's somewhat "frantic measuring and calculating" of the different laws and legal cultures encountered.42 On the other hand, what might turn out to be needed today, what might be important to let out of concealment; what through poetic comparison can be let out into view, is in each case the relationship between law and everyday life-in particular, that is, what difference the law makes. It is only by thinking afresh about such a relationship-about the difference the law makes, each time, in our everyday life-that one may be able meaningfully to approach current, important issues concerning, for example, the impact on Western thought of World War II, the fall of the Berlin Wall and now 9/11. And it is only by engaging with such issues, which appear to be profoundly reshaping modernity, that something meaningful can still be said (if at all) about law's many domains-about, for example, the relationship between Western and Eastern values, or between civil law and the common law countries, or between procedural and substantive law, or between private law and public law, or else, what is European law, or what is contract or tort (or "contort") in Italy rather than in France or in the United Kingdom or in the United States, or what is a legal or illegal contract, a valid or a void contract, and so on.

So, comparatists-poets can tell what difference the law makes. They can do so for they are guardians of language. They dwell in distance so that they can think the experience of difference. But what, here, must be understood by difference? What difference does the law make that poetic comparison can tell and, then, set out to say? Heidegger, again, invites us to rethink difference. Heiddeger invites us to think difference again-in terms of"dif-ference" (UnterSchied).

The word dif-ference is now removed from its usual and customary usage. What it now names is not a generic concept for various kinds of differences. It exists only as this single difference. It is unique. Of itself, it holds apart the middle in and through which world and things are at one with each other .. ..The dif-ference carries out world in its

worlding, carries out things in their thinging. Thus carrying them out, it carries them toward one another. The dif-ference does not mediate after the fact by connecting world and things through a middle added on to them. Being the middle, it first determines world and things in their presence, i.e., in their being toward one another, whose unity it carries out. 144

Thus, dif-ference is neither distinction nor out-and-out, cause-effect relation. Difference does not separate, nor does it mediate. That is why the dif-ference with which poetic comparison is concerned has little to do with the traditional concepts of legal causality, adjudication, or legislation-though it is closer to causality, adjudication, and legislation, and thus supports them, more than is usually noted or acknowledged. In particular, the dif-ference with which poetic comparison is concerned is that which sustains the world and things in their being-at the same time that it takes and keeps them in their most eminent, most emancipated unity. This is important, for world and things can only be truly coupled or uncoupled insofar as they become manifest. Dif-ference, then, is the dimension that allows world and things to be what they turn out to be-that starts them on their way. Dif-ference isphysis, emergence into presence (though not yet, or not necessarily, into unconcealment). But, also, dif-ference is, in its most original and troubling sense, the dimension-the thousand different dimensions, the thousand different plateaux"45-for law's many domains.

But in this case "dimension" also no longer means a precinct already present independently in which this or that comes to settle. The difference is the dimension, insofar as it measures out, apportions, world and thing, each to its own. Its allotment of them first opens up the separateness and towardness of world and thing. Such an opening up is the way in which the dif-ference here spans the two. The dif-ference, as the middle for world and things, metes out the measure of their presence. In the bidding that calls thing and world, what is really called is: the dif-ference.1

So, the comparatist-poet can tell what dif-ference the law makes-in that he or she can tell what dimensions the law brings into presence (that is, what dimensions the law re-presents) for the world and things to inhabit them, and for the law to rule. That, and only that, can be what must be meant by saying that

comparative law is a true "6cole de v6rit6."' 47 Comparative law is a true "6cole de v6rit" in that comparatists (or, shall we now say, comparatists-poets) can tell what, by law, appears to be true. Law's presence, that is, is appearance-and that is what the comparatist-poet can tell while others, by contrast, may miss or forget. Thus here, again, lies the responsibility of the comparatist-the responsibility of poetic comparison. Poetic comparison, that is, does not come after what it finds to be true-as if law's words, law's people, and law's currency were waiting "out there" to be discovered, put together, adjudicated, or legislated in one way or another. Instead, poetic comparison finds to be true and guards as true what, in a distance that is a closeness, one can tell and may then be going to say. In particular, we noted, poetic comparison guards what dif-ference the law makes-but what dif-ference does the law make? There can be no single answer to such a question. To be sure, however, what dif-ference the law makes is never all there is to be brought to the surface-there is much more to everyday life than law's particular, that is, exceptional, truths. Hence, the responsibility of the comparatist in her poetic awareness of dif-ference. Poetic comparison, that is, can be both supportive of authority and-just as well-a powerful challenge to it. In telling what she may be going to say, the comparatist knows what the law cannot say or does not say because it is not representative or because it cannot be represented (for it is impossible to represent it). Poetic comparison can thus bring forth and expose that which is present but cannot be represented-that which has been left behind and then forgotten. That is why in such poetic awareness of difference lies nothing less than the possibility of law's most original imagination. In guarding the dif-ference the law makes, the comparatist can guard the possibility of that which cannot be possible for it has not (yet) become apparent. There is, then, where the originality of comparative law-as that by which the difference the law makes can be finally said-that is where the originality of comparative law can be thought to rest.

He who has attained to only some degree offreedom of mind cannot feel other than a wanderer on the earth-though not as a traveler to a final destination: for this destination does not exist. But he will watch and observe and keep his eyes open to see what is really going on in the world ... Such a man will, to be sure, experience bad nights... but then, as a recompense, there will be some joyful mornings.., when he shall see, even before the light has broken, the Muses come dancing by him in the mist of the mountains, when afterwards, if he relaxes quietly beneath the trees in the equanimity of his soul at morning, good and

bright things will be thrown down to him from their tops and leafy hiding-places, the gifts of all those free spirits who... like him, are, in their now joyful, now thoughtful way, wanderers and philosophers.48

A. The Question of Comparative Law

Martin Heidegger's meditating thinking can be hard to access-though by now a possible inroad into that thinking will have begun to emerge and, with it, some intimation of a possible, radically "other" way of thinking comparative law.'49 On the other hand, there is also little doubt that parts of Heidegger's thinking are best left to obscurity. Nevertheless, Heidegger's work has been one generous if underplayed source of inspiration for many late twentieth century thinkers such as, for example, Michel Foucault, Jacques Derrida, Gilles Deleuze, Niklas Luhmann and the younger Jirgen Habermas. Thus, comparative lawyers, too, might find it fruitful to look into Heidegger's work and go beyond comparative law as calculating thinking. That is, comparative lawyers (or some of them, at least) might use Heidegger's work radically to re-think the question of comparative law. But can we use Heidegger without exposing ourselves to the sort of criticism that Heidegger was subject to? The question might well be an interesting one to tackle. Here, it suffices to note that, even if one accepted Umberto Eco's distinction between interpretation and use,5' it would still be fair to say that Foucault, Derrida, Deleuze, Luhmann, Habermas, and many others used Heidegger's work no less than they set out to interpret it (but-what is interpretation if not a self-perceived "higher" form of use?). Yet, does that mean that those themselves, or should be considered, as "Heideggerian"? Obviously not. Nor does it necessarily mean that, even if they did regard themselves, or were regarded to be, Heideggerians-they must thereby be taken to have endorsed Heidegger's specific, existential concerns and choices. Instead, Foucault, Derrida, Deleuze, Luhmann, Habermas, and many others in the second half of the twentieth century can be said to have used Heidegger in the very sense that they undertook to enter in conversation with Heidegger and his meditating thinking. In Heideggerian terms, they set out to listen to the language of his work. 151 Perhaps comparative lawyers (or some of them, at least) may wish to do the same. This may take time, and no doubt may require a great deal of

thinkers considered

patience, dedication, and open-mindedness. But it may well be that, in doing so, comparative lawyers would be able meaningfully to address those profound changes that modernity, after World War II, the fall of the Berlin Wall and now 9/11, can no longer afford to ignore. In the social sciences, many are taking up the challenge. Comparatists may also have to do so. But of course here-and for the time being-the task could only be a very preliminary one-that of using Heidegger in order to ask, or to ask again, the question of comparative law: What, then, is comparative law?'52

A task is thereby set for thought: that of contesting the origin of things, but of contesting it in order to give it a foundation, by rediscovering... that origin without origin or beginning, on the basis of which everything is able to come into being. 153

--- FOOTNOTES ---

In recent years, research in comparative law has become increasingly diversified. Even so, mainstream comparative law continues to be generally concerned with function, efficiency, or linear history. There are, of course, dissidents-and a significant part of them think that language provides firmer grounds for a genuine investigation of the other. In what follows, I join the numerous voices of those who find much current comparative law unsatisfactory, and I argue in favor of what-drawing on, yet not fully subscribing to, the existential analytic of Martin Heidegger-I call "poetic," or meditating, comparisons of law. In the proposed characterization, poetic comparisons have little if anything to do with poetry or any other form of representational thought. Instead, poetic comparisons recognize how certain fundamental concepts on which comparative law is based (beginning with language) need urgently to be thought again-by, first, embarking on the imponderable but necessary enterprise of thinking thought afresh. It is only by thinking thought afresh that comparative lawyers can hope meaningfully to address some hitherto unthoughtof deeply problematic changes that appear to be reshaping modernity-changes such as those that have been taking place in the West since World War II, the fall of the Berlin Wall and now 9/11.

*Department of Law, London School of Economics and Political Science. This Article was completed at the end of Spring 2002, and accepted for publication in this journal in September 2002. Several colleagues kindly offered their views on a draft manuscript of the Article-but special thanks go to GUnther Frankenberg, Patrick Glenn, David Kennedy, Mitchel Lasser, Tim Murphy, Annelise Riles, Bernard Rudden, Rodolfo Sacco, and Geoffrey Samuel for their much-appreciated criticism and encouragement. Usual disclaimers apply.

I. INTRODUCTION

'FRIEDRICH W. NIETZSCHE, MENSCHLICHES ALLZUMENSCHLICHES 224-25 (Alfred Kroener Verlag 1964), translated in FRIEDRICH W. NIETZSCHE, HUMAN ALL Too HUMAN 168 (R.J. Hollingdale trans., 1996).

2MICHEL FOUCAULT, THE ORDER OF THINGS 305 (R.D. Lang ed., 1973). 3By mainstream comparative law I mean, broadly put, legal research concerned with function, efficiency, or linear history as a privileged tool of comparative investigation. Amongst the opponents of mainstream comparative law (as here defined) are those who draw attention to everyday language as their own preferred grounds for meaningful comparison. In what follows, I briefly review the opposition between mainstream comparative law and the advocates of language, and then suggest a phenomenological approach based, in part, on the work of Martin Heidegger. As will become apparent, I thus leave out a third area of comparative law research-that which is conducted by legal sociologists and ultimately denies any valid justification for an independent discipline of comparative law-for, the legal sociologists believe, sociology does it all. The almost complete distrust that most legal sociologists thus seem to reserve for any proposal of conducting comparative law research independently of "mother" sociology requires separate treatment. But for recent socio-legal contributions to comparative law, see ADAPTING LEGAL CULTURES (David Nelken & Johannes Feest eds., 2001); COMPARATIVE LAW FOR THE 21ST CENTURY (Andrew Harding & Esin Ortici! eds., 2002); TRANSNATIONAL LEGAL PROCESSES (Michael Likosky ed., 2002).

4See MARTIN HEIDEGGER, Die Frage nach der Technik [The Question Concerning Technology], in BASIC WRITINGs 307, 311 (David Farrell Krell ed., 1993) ("[T]he essence of technology is by no means anything technological.").

51TALO CALVINO, LE CITTA INVISIBILI (1993), translated in ITALO CALVINO, INVISIBLE CITIES

28 (William Weaver trans., 1997).

6See id. 'Id. 'See id. 9

See id. '°See id. 1'Id.

121d. 3Id. at 28-29. 41id. at 34.

II. THE ORIGINALITY OF COMPARATIVE LAW

151d. 6NIETZSCHE, supra note 1, at 170-7 1. '7FouCAULT, supra note 2, at 311.

"8See W.T. MURPHY, Reason and Society: The Science of Society and the Sciences of Man, in REASON AND HISTORY: OR ONLY A HISTORY OF REASON 56, 58 (Philip Windsor ed., 1990) (arguing that heartland of social sciences might lie in "the plurality ... of the sciences of man"). '9For a non-nihilistic understanding of such a void, see GIORGIO AGAMBEN, Idea del risveglio, in IDEA DELLA PROSA 98-99 (Giangiacomo Feltrinelli ed., 1985) (originally dedicated to Italo Calvino), translated in GIORGIO AGAMBEN, IDEA OF PROSE 131, 131-33 (Michael Sullivan & Sam Whitsitt trans., 1995).

2A problem, that one, which even the more "remote" disciplines such as, for example, legal history, can no longer sensibly ignore. See Igor Stramignoni, At the Margins of the History of English Law: The Institutional, the Socio-Political, and the "Blotted-out, '" 22 LEGAL STUD. 420, 420-47 (2002).

21W.T. MURPHY, THE OLDEST SOCIAL SCIENCE? CONFIGURATIONS OF LAW AND MODERNITY (1997).22See Igor Stramignoni, When Law Stands Still: Land Contracts in English Law and Law's

"Abandonment" of Everyday Life, 12 LAW & CRITIQUE 105, 116-22 (2001).

23But see KONRAD ZWEIGERT & HEIN KOTZ, INTRODUCTION TO COMPARATIVE LAW 1, 33

(Tony Weir trans., 3d rev. ed. 1998) ("[C]omparativists ... are perfectly unembarrassed about their methodology, and see themselves as still being at the experimental stage.").

241d. at 2. "SIR JOHN FORTESCUE, DE LAUDIBUs LEGUM ANGLIAE ch. 19, 11. 7-9 (translation is mine). 26See Gino Gorla & Luigi Moccia, A 'Revisiting' of the Comparison Between 'Continental Law' and 'English Law' (16th-19th Century), 2 J. LEGAL HIST. 143, 145-46 (1981); John Henry Merryman, The French Deviation, 44 AM. J. COMP. L. 109, 110 (1996).

27See Otto Kahn-Freund, On Uses and Misuses of Comparative Law, 37 MOD. L. REV. 1, 1-6 (1974); Bernard Rudden, Comparative Law as a Remedial Subject, 16 LAW TCHR. 141, 141-49 (1982); Geoffrey Samuel, Comparative Law as a Core Subject, 21 LEGAL STUD. 444, 444-59 (2001); Eric Stein, Uses, Misuses-andNonuses of Comparative Law, 72 Nw. U. L. REV. 198, 198 (1977); Alan Watson, Legal Transplants andLaw Reform, 92 LAW Q. REV. 79, 79-84 (1976).

28See, e.g., John H. Langbein, The Influence of Comparative Procedure in the United States, 43 AM. J. CoMP. L. 545, 545 (1995) (arguing that purpose of comparative study is to help understand what is distinctive and problematic about domestic law); Mathias Reimann, The End of Comparative Law as an Autonomous Subject, 11 TUL. EUR. & Civ. L.F. 49, 50-52 (1996) (highlighting some objections that demonstrate how study of comparative law should be drastically reorganized and redistributed); supra note 3 and accompanying text.

29See Stein, supra note 27, at 209-13 (noting how politicians are reluctant to accept and implement transfers of law); see also James Gordley, Comparative Legal Research: Its Function in the Development of Harmonized Law, 43 AM. J. COMP. L. 555, 566 (1995) (arguing along same lines).

30See infra Part 111. 3'Basil Markesinis, Comparative Law-A Subject in Search ofan Audience, 53 MOD. L. REV.

1, 1 (1990).

1d

33See TULLIO ASCARELLI, STUDI DI DIRITTO COMPARATO E IN TEMA DI INTERPRETAZIONE 43 (1952); BUTS ET METHODES DU DROIT COMPARt [AIMS AND METHODS OF COMPARATIVE LAW] passim (M. Rotondi ed., 1973); Szab6, Les buts et les mthodes de la comparison du droit, in RAPPORTS GENERAUX AU IX CONGRtS DE DROIT COMPAREt 163 passim (1977); see also ZWEIGERT & KOTZ, supra note 23, at 15 (suggesting that four main benefits of comparative law are: 1) as aid to legislator, 2) as tool of construction, 3) as component of legal education, and 4) in its possible contribution to unification of law-though "[t]he primary aim of comparative is knowledge").

34See Sir Frederick Pollock, The History of Comparative Jurisprudence, 5 J. Soc'Y COMP. LEGIS. 74, 86 (1903) ("The complete recognition of the new branch of legal science [comparative law] may be best dated from the year 1869."). But see Gino Gorla, A Short Historical Account of Comparative Law in Europe and Italy During Modern Times (16th to 19th Century), in RAPPORTS NATIONAUX ITALIENS AU XIIE CONGRIS INTERNATIONAL DE DROIT COMPARE [ITALIAN NATIONAL REPORTS TO THE XIITH INTERNATIONAL CONGRESS OF COMPARATIVE LAW] 67-86 (1986).

law .

"5See J.. BACHOFEN, DAS MUTTERRECHT (1861); SIR HENRY SUMNER MAINE, ANCIENT LAW v (1861) (indicating how early ideas reflected in ancient law relate to ideas alive in modem thought and law).

36See Pollock, supra note 34, at 74-75; see also Erich Genzmer, A Civil Lawyer's Critical Views on Comparative Legal History, 15 AM. J. COMP. L. 87, 89 (1967) ("[C]omparative law in its very nature is firmly rooted in the general course of legal history.").

3See E. LAMBERT, Conception g~n~rale et definition de la science du droit compare, PROCES-

VERBAUX DES SEANCES ET DOCUMENTS 26 (Congr~s international de droit compard 1 1905).

38See H.C. GUTTERIDGE, COMPARATIVE LAW: AN INTRODUCTION TO THE COMPARATIVE METHOD OF LEGAL STUDY & RESEARCH 5-10 (2d ed. 1949); J. Limpens, L 'tude du droit compar , envisage comme moyen de rechercher les matikres susceptibles d'unification sur le plan international, REV. DE DROIT INT'L ET LEGIS. COMPAREE 88 (1958).

39See RENt DAVID & JOHN E.C. BRIERLEY, MAJOR LEGAL SYSTEMS IN THE WORLD TODAY: AN INTRODUCTION TO THE COMPARATIVE STUDY OF LAW 9-13 (1968); see also R. C. VAN CAENEGEM, EUROPEAN LAW IN THE PAST AND THE FUTURE 39-53 (2002) (noting six major differences between civil law and common law in Europe); R.C. VAN CAENEGEM, JUDGE, LEGISLATORS AND PROFESSORS: CHAPTERS IN EUROPEAN LEGAL HISTORY 113-14 (1987) (arguing that common law and continental law "were not only developed by different organs, [but] their very substance was different, the one being traditional, native and feudal, the other new, foreign and Roman"); Marc Ancel, Le comparativiste devant les systkmes (ou 'families") de droit, in FESTSCHRIFT FOR KONRAD ZWEIGERT ZUM 70 GEBURTSTAG 355 (Tabingen 1981).

4°See ZWEIGERT & KOTZ, supra note 23, at 67-73. 1 4

T. RavA, L 'interpretazione comparativa, in STUD] IN ONORE DI GIOACCHINO SCADUTO 11

499 (Padova 1970).

See MIRJAN R. DAMA KA, THE FACES OF JUSTICE AND STATE AUTHORITY: A COMPARATIVE

APPROACH TO THE LEGAL PROCESS passim (1986).

See P.S. ATIYAH & ROBERT S. SUMMERS, FORM AND SUBSTANCE IN ANGLO-AMERICAN LAW 1-3 (1987); see also John Bell, Comparative Law and Legal Theory, in PRESCRIPTIVE FORMALITY AND NORMATIVE RATIONALITY IN MODERN LEGAL SYSTEMS 19, 23-24 (Werner Krawietz et al. eds., 1994) (suggesting how comparative law ought to focus on legal traditions identified from visions of law that can be found within legal families).

44See MICHAEL JOACHIM BONELL, AN INTERNATIONAL RESTATEMENT OF CONTRACT LAW-THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS passim (1997); INTERNATIONAL INSTITUTE FOR THE UNIFICATION OF PRIVATE LAW (UNIDROIT), UNIFICATION OF

LAW: A GENERAL SURVEY OF WORK FOR THE UNIFICATION OF PRIVATE LAWpassim (1948-1956);

(1957); HENRY G. SCHERMERS,

UNIDROIT, YEARBOOK passim (1956); ERNST RABEL, 1-2 DAS RECHT DES WARENKAUFS: EINE RECHTSVERGLEICHENDE DARSTELLUNG passim JUDICIAL PROTECTION IN THE EUROPEAN COMMUNITIES 1 (1976); ANDRt TUNC, COMMENTAIRE 2 (1964); 6 YEARBOOK, CURRENT ACTIVITIES OF INTERNATIONAL ORGANIZATIONS RELATED TO THE HARMONIZATION AND UNIFICATION OF INTERNATIONAL TRADE LAW, 1975, at 283 (1976); 1 YEARBOOK, UNCITRAL 1968-1970 passim (1971); KONRAD ZWEIGERT, EUROPAISCHE ZUSAMMENARBEIT IM RECHTSWESEN (Rend David et al. eds., 1955); Klaus Peter Berger, Harmonization of European Contract Law: The Influence of Comparative Law, 50 INT'L COMP. L.Q. 877,879 (2001) (illustrating "how comparative law affects the evolution of European contract law through the work of international arbitral tribunals, domestic courts, and legislatures in the E.U."); Rend David, International Unification of Private Law, in 2 INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW ch. 5 (Rend David et al. eds., 1971) [hereinafter David, International Unification]; Rend David, Socigt des gtats et droit du commerce international, 13 MCGILL L.J. 218 in the (1967); Roy Goode, Insularity or Leadership? The Role of the United Kingdom Harmonization of Commercial Law, 50 INT'L COMP. L.Q. 751,751 (2001) (addressing role of U.K. "legislation-the task of governments and legislatures" and U.K. international "restatements-the task of scholars" with respect to development of transnational commercial law); Eric Stein, Assimilation of National Laws as a Function of European Integration, 58 AM. J. INT'L L. 1, 1-2 (1964); Hessel E. Yntema, Comparative Research and Unification ofLaw, 41 MICH. L. REV. 261, 261 (1942). For a skeptical view ofthe feasibility of unification or even only harmonization of large areas of law, such as family law, see David Bradley, Convergence in Family Law. Mirrors, Transplants and Political Economy, in 6 MAASTRICHT J. EUR. & COMP. L. 127, 127-28 (1999); Otto Kahn-Freund, Common Law and Civil Law-Imaginary and Real Obstacles to Assimilation, in NEW PERSPECTIVES FOR A COMMON LAW OF EUROPE 137, 164 (Mauro Cappelletti ed., 1978). But see THE HARMONISATION OF EUROPEAN PRIVATE LAW xvii-xix (Mark Van Hoecke & Franqoise Ost eds., 2000) (suggesting how legal theory should incorporate comparative law when considering integration and harmonization of European legal systems); Gordley, supra note 29, at 566-67 (encouraging "development of a common transnational legal science" so as to improve understanding of one's own national legal problems and respective solutions); Rodolfo Sacco, Diversity and Uniformity in the Law, 49 AM. J. COMP. L. 171, 189 (2001) (outlining "the debate between the advocates of uniformity and those of diversity" in European law).

45See Mauro Bussani & Ugo Mattei, The Common Core Approach to European Private Law, 3 COLUM. J. EUR. L. 339, 340-48 (1997-1998); Rudolf B. Schlesinger, The Common Core of Legal Systems: An Emerging Subject of Comparative Study, in XXTH CENTURY COMPARATIVE AND CONFLICTS LAW 65, 65-66 (Kurt H. Nadelmann et al. eds., 1961).

"For an illustration of comparative law's role in explaining the convergence of law, see MAURO CAPPELLETTI ET AL., TOWARD EQUAL JUSTICE: A COMPARATIVE STUDY OF LEGAL AID IN MODERN SOCIETIES ix-xi (Vincenzo Vorano ed., 1975) (emphasizing growing similarities in modern systems of judicial review); MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE 17 (1996); B.S. Markesinis, Learning from Europe and Learning in Europe, in THE GRADUAL CONVERGENCE:

FOREIGN IDEAS, FOREIGN INFLUENCES, AND ENGLISH LAW ON THE EVE OF THE 21 ST CENTURY 1, 6-7, 30-32 (B.S. Markesinis ed., 1994); John Henry Merryman, On the Convergence (and Divergence) of the Civil Law and the Common Law, 37 STAN. J. INT'L L. 357, 358-65 (1981). For a discussion on nonconvergence of law, see Pierre Legrand, Against a European Civil Code, 60 MOD. L. REV. 44, 60-61 (1997) [hereinafter Legrand 1]; Pierre Legrand, European Legal Systems Are Not Converging, 45 INT'L & COMP. L.Q. 52, 79-81 (1996) [hereinafter Legrand II].

4'See ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW 16-20 (1974); ALAN WATSON, ROMAN LAW AND COMPARATIVE LAW 97 (1991); John H. Beckstrom, Transplantations ofLegal Systems: An Early Report on the Reception of Western Laws in Ethiopia, 21 AM. J. COMP. L. 557,557-61 (1973); William Ewald, Comparative Jurisprudence (1): What Was It Like to Try a Rat?, 143 U. PA. L. REV. 1889, 1979-80 (1995) [hereinafter Ewald I]; William Ewald, Comparative Jurisprudence (1): The Logic of Legal Transplants, 43 AM. J. COMP. L. 489, 489-92 (1995) [hereinafter Ewald 1I]; Watson, supra note 27, at 80-82.

48See DAVID & BRIERLEY, supra note 39, at 5-9; H. PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD xxi (2000) (arguing that political and social theory have "turned to tradition as a possible means of maintaining social coherence and identity in liberal, industrialized societies"); JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION passim (2d ed. 1985); Lawrence M. Friedman, Legal Culture and Social Development, 6 LAW & SOC'Y REV. 29, 34-35 (1969); Ernst Rabel, Die Fachgebiete des Kaiser Wilhelm-Instituts ftr ausldndisches und internationales Privatrecht, 25 JAHRE KAISER WILHELM-GESELLSCHAFT ZUR FORDERUNG DER WISSENSCHAFTEN 111 77 (1937); Max Rheinstein, Comparative Law and Conflict of Laws in Germany, 2 U. CHI. L.REV. 232,246-50 (1934-1935).

49H.L.A. HART, THE CONCEPT OF LAW 81-91 (Penelope A. Bulloch & Joseph Raz eds., 2d

ed. 1994).

5See Merryman, supra note 46, at 379-85. 5'But see Jonathan Hill, Comparative Law, Law Reform and Legal Theory, 9 OXFORD J. LEGAL STUD. 101, 101 (1989) (pointing out how Zweigert and KOtz's work "reveals a number of theoretical problems which underlie the whole enterprise of comparative law").

52ZWEIGERT & KOTZ, supra note 23, at 4-5. 531d. at 34.

54id. at 16 (noting that comparative law "dissolves unconsidered national prejudices, and helps us to phantom the different societies and cultures of the world and to further international in developing countries; and for the understanding; it is extremely useful for law reform development of one's own system the critical attitude it engenders does more than local doctrinal disputes").

"See id. at 33. But, of course, comparative law is not a perfect science or method. Zweigert

and KOtz note that:

Even today it is extremely doubtful whether one could draw up a logical and selfcontained methodology of comparative law which had any claim to work perfectly. Most probably there will always remain in comparative law, as in legal science generally, let alone in the practical application of law, an area where only sound judgment, common sense, or even intuition can be of any help. For when it comes to evaluation, to determining which of the various solutions is the best, the only ultimate criterion is often the practical evidence and the immediate sense of appropriateness.

Id.

56See id at 33-34 ("Comparative law aims to put legal science on a sure and realistic basis. Comparative law not only shows up the emptiness of legal dogmatism and systematics but because it is forced to abandon doctrines and come directly to grips with the demands of life for suitable rules, it develops a new and particular system, related to those demands in life and therefore functional and appropriate. Comparative law does not simply criticize what it finds, but can claim to show the way to a better mastery of the legal material, to deeper insights into it, and thus, in the end, to better law."). 571d. at 3. 581d. at 16-31; see Kahn-Freund, supra note 27, at 1; Bernard Rudden, Comparative Law in England, in COMPARATIVE LAW AND LEGAL SYSTEM 79,79-87 (W.E. Butler & V.N. Kudriavtsev eds., 1995).

59See, e.g., JOHN L.COMAROFF & SIMON ROBERTS, RULES AND PROCESSES 246 (1981) (arguing for "an approach that can account both for the total logic of dispute processes and for its systemic contextualization"); SIMON ROBERTS, ORDERAND DISPUTE 17-29 (1979); Bell, supra note 43, at 21-24; Saul Levmore, Rethinking Comparative Law: Variety and Uniformity in Ancient and Modern Tort Law, 61 TUL. L. REV. 235, 237-40 (1986).

In recent years, the importance of comparative law as a useful method has been given a new spin by the proposed application to it of the general principles of law and economics developed in the United States during the 1970s.60 Accordingly, efficiency is identified as the key tool for a socially useful comparative law-and the subsequent, recent stress on the importance of taxonomy for comparative law can be taken, perhaps, as a necessary follow-up of that doctrine.6' Yet, whether one turns to function or (somewhat more drastically) to efficiency, it is precisely the triumph of comparative law as a useful method that, at a closer look, is so problematic about much of today's research on comparative law. That is, the more one regards comparative law as a useful method-as an instrumentum-the more the originality of comparative law is obscured and then forgotten. What, then, is the originality of comparative law? In one rather crude sense, the originality of comparative law lies, of course, in whatever makes it distinctive. In a deeper sense, however, the originality of comparative law must lie in its core dimensions. Thus, the old objection that it is difficult to see what the distinctive features of comparative law might be with respect to, for example, analytical jurisprudence, legal history, legal philosophy and, today, legal sociology,62 may turn out to be somewhat misleading. More fundamentally, the problem is that to reduce comparative law to its function and purpose (instrumentum), or to reduce it to efficiency-related considerations, is to reduce comparative law to calculating thinking-that is, thinking on and about one or another natural or quasi-natural object perceived to be lying "out there," in front of us, waiting to be discovered, apprehended, organized, and delivered. But can any calculation be any longer done, today, in any meaningful way? Perhaps so. Nevertheless, the twentieth century's troubled discovery of the void still makes calculating thinking problematic-for calculations are a measuring, yet a measuring that must each day confront a more abstract society.

In what follows, it will be argued how, by contrast, comparative law might have much to offer as meditating thinking. Moving from, albeit not entirely

6°See Symposium, Change in the Common Law: Legal and Economic Perspectives, 9 J. LEG. STUD. 189 (1980); Ugo Mattei, Efficiency in Legal Transplants: An Essay in Comparative Law and Economics, 14 INT'L REV. L. & ECON. 3, 18-19 (1994).

6Ugo Mattei, Three Patterns of Law: Taxonomy and Change in the World's Legal Systems, 45 AM. J. COMP. L. 5,6-10 (1997) (arguing in favor of taxonomy in law). But see Harold J. Berman & Charles J. Reid, Jr., The Transformation of English Legal Science: From Hale to Blackstone, 45 EMORY L.J. 438 passim (1996) (doubting usefulness of taxonomy in previous comparative law practice).

62See DAVID & BRIERLEY, supra note 39, at 5-9 (pointing out three major modem uses for comparative law: unification of law, national understanding, and better knowledge ofnational law); ZWEIGERT & KOTz, supra note 23, at 6-12, 32-47 (distinguishing comparative law from legal history, legal ethnology, and sociology of law); Roscoe Pound, Comparative Law in Space and Time, 4 AM. J. COMP. L. 70, 72 (1955) (noting how comparative method "apart from analysis or history, or philosophy would be barren"); supra note 3 and accompanying text.

63MARTIN HEIDEGGER, Zur Er6rterung der Gelassenheit. Aus einem Feldweggesprdch fiber das Denken, in AUS DER ERFAHRUNG DES DENKENS 1910-1976, reprinted in 13 GESAMTAUSGABE 57 passim (1983); see also MARTIN HEIDDEGGER, Was Heisst Denken [What is Called Thinking], in VORTRAGE UND AUFSATZE 1936-1953, reprinted in 7 GESAMTAUSGABE 127 (1952); MARTIN HEIDEGGER, Gelassenheit (MemorialAddress) [Abandonment], in DISCOURSE ON THINKING (John M. Anderson & E. Hans Freund trans., 1966).

64MICHAEL J. ULMER, HARMONISIERUNGSSCHRANKEN DES AKTIENRECHTS (1998); David Kennedy, New Approaches to Comparative Law: Comparativism and International Governance, 1997 UTAH L. REV. 545, 633-37; Annelise Riles, Wigmore's Treasure Box: Comparative Law in the Era of Information, 40 HARV. INT'L L.J. 221, 222-30 (1999).

65See Riles, supra note 64, at 269. 66See Pollock, supra note 34, at 75-77.

isolation-instead, they would profit considerably from bringing history into the main focus of their analysis.67 More recently, Erich Genzmer noticed that there can be "no basic difference between a comparative method resting on an examination of positive law as such and one that is based on a study of the origin and historical development of that law," thus, effectively recognizing the central place of history in comparative law.68 Even so, can comparative

law's various domains-within their various historical contexts-which it purports to compare? Can comparative law fully explain, for example, what internal logic and philosophical content might be characteristic of the world's legal domains?69 And, even if it did, does comparative law have a language in which to communicate its understanding?

law successfully observe

History, of course, is traditionally understood to be the linear history of men and women. So, under this view, comparative law can be described as the intellectual process that allows one to learn less about legal items, functions, or efficiency and more about whatever human activity there might be in and around a particular legal domain-in fact, a deeper acquaintance than that which local or national perspective alone might otherwise permit.7t So, for example, Ren6 David stresses that comparative law is concerned not only with matters such as the unification or the harmonization of laws but, crucially, with the discovery of the outlook of others and with helping others understand our own point of view:

[T]he improvement of legislation and the unification or harmonization of laws are no longer the only objects of comparative law today. In our era there is another and perhaps more modest task: that of aiding us to understand the outlook of others and helping others to understand our own point of view-in short, that of organizing, in the field of law, that peaceful and, if possible, harmonious co-existence which is the condition sine qua non for the preservation and progress of our civilization.

67GINO GORLA, IL CONTRATTO: PROBLEMI FONDAMENTALI TRATTATI CON IL METODO

COMPARATIVO E CASISTICO v-xiv (1954).

68Genzmer, supra note 36, at 94 ("If any difference exists, it lies solely in the particular

orientation of the work in question.").

69See Legrand I, supra note 46, at 59-60; Pierre Legrand, Sens et non-sens d'un code civil europ~en, 4 REVUE INTERNATIONAL DE DROIT COMPARt 779 (1996) [hereinafter Legrand l1]; see Ewald 1, supra note 47, at 1894-98; Ewald II, supra note 47, at 491, 496-97.

7See UGO MATrEI, IL MODELLO D! COMMON LAW (1996); David J. Gerber, System Dynamics: Toward a Language of Comparative Law?, 46 AM. J. COMP. L. 719, 719-20 (1998) (noting that comparative law does not seem to have language of its own).

GINo GORLA, 11 diritto comparato, ENCICLOPEDIA DEL DIRITTO XII 928 (1964), reprinted in DIRITTO COMPARATO E DIRITTO COMMUNE EUROPEO 69 (1981); Genzmer, supra note 36, at 89.

latter focus on historical differences-on

It is worth noting that both those who look at comparative law as a useful method and those who look at it as a more decidedly humanistic practice focus on difference. The former focus on functional difference-or else, on efficiency differentials. The the awesome singularities that we typically encounter in our everyday experience. However, the point is that both schools of comparative law focus on difference, for they both ultimately seek to uncover whatever underlying commonalities they think there might be between the legal systems compared. In doing so, they argue, one will swiftly realize how such underlying commonalities are, in fact, more important than the apparent differences, and this, in turn, will have some conspicuous economic and political implications. So, for example, an emphasis on difference (and, from the identification of certain legal families-groups of legal systems characterised by a shared ideology or by common legal techniques.73 Or, it might lead to the uncovering of certain legal traditions74-what Merryman calls that "uniquely shared something" that makes it possible to speak of certain legal systems (and not others) as constituting a separate group.75

there, on the underlying commonalities) might lead to

2DAVID & BRIERLEY, supra note 39, at 6-8. Along similar lines had been of course much evolutionary theory. See, e.g., Josef Kohler, Evolution of Law, in GRUNHUT Z.F.D. PRIVAT-UND OFFENTLICHE RECHT 410 (1887), reprinted in ALBERT KOCOUREK & JOHN WIGMORE, PRIMITIVE AND ANCIENT LEGAL INSTITUTIONS 3, 6, 9 (Albert Kocourek trans., 1915).

73RENt DAVID, LES GRANDS SYSTEMES DU DROIT CONTEMPORAINS (10th ed. 1992); David, International Unification, supra note 44,passim; see ZWEIGERT & KOTZ, supra note 23, at 63-73; Ancel, supra note 39, at 355 (critiquing concept of legal families).

4Literature on legal traditions is by now vast and diverse. E.g., ATIYAH & SUMMERS, supra note 43,passim (analyzing some hitherto unnoticed differences between legal traditions of England and America); GLENN, supra note 48, at 56-314 (examining legal traditions found in chthonic law, talmudic law, civil law, Islamic law, common law, Hindu law, and Asian law); Bell, supra note 43, at 24-31 (describing how law is a tradition).

75MERRYMAN, supra note 48, at 2 ("A legal tradition, as the term implies, is not a set of rules of law about contracts, corporations and crimes, although such rules will almost always be in some sense a reflection of that tradition. Rather, it is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught. The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legai system into cultural perspective.").

76Gorla & Moccia, supra note 26, at 147; Merryman, supra note 26, at 118. 77Merryman, supra note 26, at 119. In recent years, Merryman has increasingly reevaluated

the importance of difference. See MERRYMAN, supra note 48, at 387-88.

7Nathanial Berman, Aftershocks: Exoticization, Normalization, and the Hermeneutic Compulsion, 1997 UTAH L. REV. 281, 281 (arguing that legal scholars should reconsider familiar comparative techniques); Legrand 11, supra note 46, at 55-60; Legrand Ill, supra note 69, at 779; Geoffrey Samuel, Comparative Law and Jurisprudence, 47 INT'L & COMP. L.Q. 817, 822 (1998) (stressing how one weakness of comparative law is "desire for intellectual imperialism").

79Mark J. Roe, Chaos and Evolution in Law and Economics, 109 HARV. L. REV. 641, 668

(1996).

"0This problem is especially felt in historical approaches to comparative law. Genzmer, supra

note 36, at 90.

"lSee, e.g., Markesinis, supra note 46, at 6-7; Reinhard Zimmermann, Roman Law and European Legal Unity, DIE ANTIKE IN DER GEGENWARD (W. Ludwig ed., 1993), reprinted in TOWARDS A EUROPEAN CIVIL CODE 65, 66-67 (A.S. Hartkamp et al. eds., 1994).

82GERARD RENt DE GROOT, European Legal Education in the 21st Century, in THE COMMON LAW OF EUROPE AND THE FUTURE OF LEGAL EDUCATION 7 passim (Bruno de Witte & Caroline Forder eds., 1992).

83See Bruno de Witte, The Convergence Debate, 3 MAASTRICHT J. EUR. & COMP. L. 105,

105-07 (1996) (offering excellent account of compexities of convergence debate).

84Legrand 11, supra note 46, at 61-62; see also Legrand 11I, supra note 69, at 779-812. Legrand develops and radicalizes a view already held by previous scholarship-according to which (to mention but one example) "[t]he creation of specific legal institutions is inevitably predicated on the unique intellectual heritage of a people." Genzmer, supra note 36, at 92. On language and other radical obstacles to convergence, see Kahn-Freund, supra note 27, at 151-58.

8"GUnther Frankenberg, Critical Comparisons: Re-thinking Comparative Law, 26 HARV. INT'L

L.J. 411,415-16 (1985). 861d. at 416. 871d. at 413. 881d. at 414.

1d 90Jd.

91Seeid at 415.

1d

93Frankenberg notes: The dilemma ofunderstanding foreign (legal) cultures and oftranscending the domestic (legal) culture can neither be resolved by "going rational" nor by "going native," The rigorous rationalist who relies on conceptual or evolutionary functional universals is prone to give her world-view and norms, her language and biases only a different label. In the end, she may bring home from her comparative enterprise nothing but dead facts and living errors, the progeny of ethnocentrism. The rigorous relativist who naively deludes herself into believing that cultural baggage and identities can be dropped at will, is prone to oscillate between ventriloquism and mystification.

Id.941d. at 443.

95Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law (Installment

Iofll), 39 AM. J. COMP. L. 1,4-5 (1991).

961d. at 7.

971d at 22. For instance, the elements of a living law may include "statutory rules, the

formulations of scholars, and the decisions of judges." Id.

98To the contrary, Comparison recognizes that the "legal formants" within the system are not always uniform and therefore contradiction is possible. The principle of non-contradiction, the fetish of municipal lawyers, loses all value in an historical perspective, and the comparative perspective is historicalpar excellence. From this perspective, any model is true if it has actually existed.

The comparative method is thus the opposite of the dogmatic. The comparative method is founded upon the actual observation of the elements at work in a given legal system. The dogmatic method is founded upon analytical reasoning. The comparative method examines the way in which, in various legal systems,jurists work with specific rules and general categories. The dogmatic method offers abstract definitions.

Id. at 24-26 (citations omitted).

991d. at 32-34. l°Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law (Installment

if ofP), 39 AM. J. CoMP. L. 343, 384 (1991).

1011d

11I. COMPARISONS, OR THE POETIC AWARENESS OF DIFFERENCE

1021d. at 385-86 (citation omitted). 'O3n the importance of ordinary language in comparisons, see Gerber, supra note 70, at 719-20; Mitchel de S.-O.-l'E. Lasser, Comparative Law and Comparative Literature: A Project in Progress, 1997 UTAH L. REV. 471, 478-84; Tony Weir, Die Sprachen des europdiischen Rechts. Eine skeptische Betrachtung, ZEITSCHRIFT FUR EUROPAISCHES PRIVATRECHT 368 (1995).

'°"See infra Part IV. 'Frankenberg, supra note 85, at 454. ..6Richard Hyland, Comparative Law, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 184, 196 (Dennis Patterson ed., 1996). Rodolfo Sacco takes up the challenge. See generally Sacco, supra note 44, at 171 (contrasting benefits of uniformity and diversity of legal format in Europe).

07 1

FOUCAULT, supra note 2, at 315.

'See supra Part I (defining comparative law). 'See Berman, supra note 78, at 286. "°HEIDEGGER, supra note 4, at 320. .See infra Part IV.

"2See infra Part II.B. "3MARTIN HEIDEGGER, Die Sprache, in UNDERWEGS ZUR SPRACHE (1959), translated in MARTIN H EIDEGGER, Language, in POETRY, LANGUAGE, THOUGHT 190,213-29 (Albert Hofstadter trans., 1971).

lt4id. at 191-92. 115Id. at 197. '"6Heidegger states: This naming does not hand out titles, it does not apply terms, but it calls into the word. The naming calls. Calling brings closer what it calls. However this bringing closer does not fetch what is called only in order to set it down in closest proximity to what is present, to find a place for it there. The call does indeed call. Thus it brings the presence of what was previously uncalled into a nearness. But the call, in calling it here, has already called out to what it calls. Where to? Into the distance in which what is called remains, still absent.

Id. at 198.

117ld. at 194.

"'See MARTIN HEIDEGGER, Der Zeitbegriff in der Geschichtswissenschaft, in ZEITSCHRIFT FOR PHILOSOPHIE UND PHILOSOPHISCHE KRITIK 161, 173-88 (1916), translated in Martin Heidegger, The Concept of Time in the Science of History, 9 J. BRIT. SOC'Y PHENOMENOLOGY 3, 3-10 (Harry S. Taylor et. al. trans., 1978); ENRICO GARULLI, PROBLEMI DELL'UR-HEIDEGGER 65, 65-74 (1969); Georges Didi-Huberman, Pour tine anthropologie des singularits formelles. Remarque stir l'invention warburgienne, GENtSES, Sept. 24, 1996, at 145, 145-63.

" 9HEIDEGGER, supra note 113, at 194. 2'See MARTIN HEIDEGGER, Poetically Man Dwells, in POETRY, LANGUAGE, THOUGHT, supra

note 113, at 213, 215.

12Id.

122"Metaphysical" is here employed in the sense understood by Martin Heidegger in his Letter on Humanism. See MARTIN HEIDEGGER, Letter on Humanism, in BASIC WRITINGS, supra note 4, at 213.

12HEIDEGGER, supra note 113, at 218. 124"Poetry does not fly above and surmount the earth in order to escape it and hover it. Poetry is what first brings man onto the earth making him belong to it, and thus brings him into dwelling." Id. See generally FRIEDRICH WILHELM NIETZSCHE, DIE FROHLICHE WISSENSCHAFT (1887), translated in THE GAY SCIENCE § 341 (Walter Kaufmann trans., 1974) (vocalizing doctrine of "Eternal Return of the Same").

is, in the noncommon, nonphysical sense of being a spanning-for "[t]he upward glance passes aloft toward the sky, and yet it remains below on the earth."'125 Such spanning, on the other hand, is radical, for it is, precisely, a measuring out of man's roots-of the humanness of man. But one must be careful. Again, nothing in such nonphysical measure-taking is either religious or metaphysical. "What is the measure for human measuring? God? No. The sky? No. The manifestness of the sky? No. The measure consists in the way in which the god who remains unknown, is revealed as such by the sky.... This appearance is the measure against which man measures himself."'26

It thus becomes more and more apparent that "[w]hat remains alien to the god, the sight of the sky-this is what is familiar to man" and thus it is precisely in whatever familiar appearances there might be that "the poet calls the alien as that it is-unknown."'27 Amongst the familiar, the poet evokes the unthought-of as the locus of that which must remain unseen. It is thus that God can surprise us and draw nearer.

itself in order to remain what

to which

invisible

imparts

the

We cannot, here, add much more about Heidegger's meditating thinking of language, human speech, or poetry.28 We can, however, note that if we accept that poetry is what Heiddeger says that it is-if poetry is, in its deepest meaning, the building of the dimension of man (the innumerable dimensions of men)-then "[a]uthentic building occurs [only in] so far as there are poets.''129 And, on the other hand, dwelling can be unpoetic-man can be blind. But what does it mean to be blind? The answer is simple-to be blind means to be unable to see. Yet, as soon as we give that simple question some more thought, it becomes immediately clear that man can be blind either from loss of sight or from an excess of it. King Oedipus is blind. 30 But where, precisely, does his blindness lie? Is Oedipus blind for he has (later) lost his sight? Or is it perhaps because, as Hblderlin suggests and Heidegger recalls, Oedipus has (he has always had) one too many eyes?3'

25 1

HEIDEGGER, supra note 113, at 220.

1261d. at 223. '271d. at 225. '2But see Igor Stramignoni, Meditating Comparisons, or the Question of Comparative Law,

4 SAN DIEGO INT'L L.J. 57 (2003).

HEIDEGGER, supra note 113, at 227.

129 13°Id. at 228.

1311id.

B. Comparatists as Poets

Thus it might be that our unpoetic dwelling, its incapacity to take the measure, derives from a curious excess of frantic measuring and calculating. '32

Frantic measuring and calculating confines man to unpoetic dwelling. That is King Oedipus's plight-the blindness that comes from an excess rather than a loss. On the other hand, King Oedipus's blindness can only be seen by the blind Tiresias-for it is only when nothing can any longer be seen that, finally, every thing can genuinely present itself, and so be told anew. Indeed, Tiresias's blindness is what keeps him away from the visible-from everyday life's innumerable, multifold, relentless representations. At the same time, that blindness is precisely what separates that which is represented from that which is not representative or cannot be represented. That is why such a blindness is no mute matter. It does not remain within the obscure depths of one's innermost realities-but it reaches out to draw its lines. To be more accurate, such a blindness speaks. It speaks of the difference between Tiresias and his King. But it speaks as a language in which Tiresias-not the King-poetically dwells. This is why Tiresias is, in fact, no oracle-not, at least, in the sense in which, today, such a word is commonly, if mistakenly, understood. Thus, he is not someone who, somewhat mysteriously, can anticipate some (usually bleak) future event. On the contrary, Tiresias is someone who is co-present with that which speaks of his own and the King's blindness and who, in such co-presence, lets that which may well be present though still concealed coexist with that which is present and unconcealed. Blindness with sight. Sight with blindness. The unseen with the seen. The seen with the unseen. In that sense, Tiresias is, in fact, a guardian of language-the guardian of his own and Oedipus's blindness. As a guardian of language, Tiresias is nearer than anyone else to that which is spoken by it-not so much because what is in question is his own blindness (as well as the King's), but because Tiresias's blindness is, originally, Tiresias's poetic awareness of difference. That is somewhat crucial-for in such awareness lies nothing less than the possibility of the impossibility. Sight in spite of blindness. The seen together with the unseen. And so on. That is, in Tiresias's poetic awareness of difference lies the possibility of a radically other dimension of human existence. It is thus that-in presenting King Oedipus with his (unpoetic) blindness-Tiresias makes him blind at a time and in a place where King Oedipus feels so strong for, he believes, he can see so well. As it turns out, the King has, in fact, one too many eyes-and that is what Tiresias is trying to tell him and what the blind Oedipus will, only later, be able to see (that is, to tell). As it turns out, Oedipus has been

33NIETZSCHE, supra note 1, at 170-71. 1

'34See HEIDEGGER, supra note 122, at 217. 35See infra Part III.C. 1

C. Difference

Some of the more convincing current accounts underline the importance of bringing comparative law straight back into the realm of theory-without necessarily abandoning mainstream (instrumental or humanistic) comparative law.36 Thus, for example, Geoffrey Samuel invites us to escape "from the epistemological sterility of the rule thesis to arrive to a new stage where complex systems can be used to model the differences of mentalit between national legal cultures" and to combine comparative law with legal theory "to produce an institutional structure of legal knowledge that uses elements that model facts and 37 This, according to Samuel, is to lay stress on patterns that model mentalit. ' nonsymbolic knowledge and, in particular, on the symmetry of fact construction:

Such non-symbolic knowledge may not in itself act as a sufficient basis for a theory of legal justification or argumentation. But it can explain the ontological premises upon which such justification or argumentation is based. And it is here that comparative law can make its contribution to jurisprudence. It can help construct a range of different "ontological" models through the institutional deconstruction, and reconstruction, of case law and doctrinal analysis from a range of different legal systems. 138

But how can this be achieved? How can theory alone possibly care for the "light in which a seeing, as theoria, can first live and move"?139 And is it not the case, perhaps, that today thinking can no longer be merely theoretical-for (as the twentieth century has only too often demonstrated) mere theoretical thinking: "As soon as it functions it offends or reconciles, attracts or repels, breaks, dissociates, unites or reunites; it cannot help but liberate or enslave"?4' One possibility, we have suggested, is that we re-think comparative law as the revealing, the

36See ATIYAH & SUMMERS, supra note 43,passim (comparing nature of law (form) and style of legal reasoning (substance) between England and America); DAMA KA, supra note 42, at 47-135 (discussing administration of justice in legal systems around world and links existing between politics andjustice); PAUL W. KAHN, THE CULTURAL STUDY OF LAW 31-90(1999) (suggesting that rules of law be studied as our cultures); RODOLFO SACCO, INTRODUZIONE AL DIRITTO COMPARATO (1980); Geoffrey Samuel, Comparative Law andJurisprudence, 47 INT'L & COMP. L.Q. 817passim (1998) (proposing focus on "comparative" and "law" as independent academic terms).

137Samuel, supra note 136, at 834; see also GEOFFREY SAMUEL, THE FOUNDATIONS OF LEGAL REASONING 65 (1994) (noting that while differences in style between legal cultures are attributable to differences in mentalit which are result of differences in historical development, legal theory will render transient notions of style).

38Samuel, supra note 136, at 835-36. '39HEIDEGGER, supra note 122, at 262. '4 °FOUCAULT, supra note 2, at 328.

41 See supra Part 1. '14See supra Part 1. '43See, e.g., Stramignoni, supra note 22, at 105 (suggesting that in order to understand relationship between law and everyday life in Europe's private law systems, one must comprehend extent to which law has abandoned everyday life); Stramignoni, supra note 20, at 436.

44HEIDEGGER, supra note 113, at 202. 14'This is, of course, an expression borrowed from GUILLEs DELEUZE & FELIX GUATTARI,

CAPITALISME ET SCHIZOPHRtNIE, TOME 2: MILLE PLATEAUX (1972).

'46

HEIDEGGER, supra note 113, at 203.

IV. CONCLUSION

141ZWEIGERT & KOTz, supra note 23, at 15.

NIETZSCHE, supra note 1, aphorism 638.

'48 '49A development of the approach brushed out in this Article can be found in Stramignoni,

supra note 128.

'°UMBERTO Eco, LECTOR

INTERPRETATIVA NEI TEST1 NARRATIVE (1979), translated in UMBERTO ECO, Lector in Fabula: Pragmatic Strategy in a Metanarrative Text, in THE ROLE OF THE READER: EXPLORATIONS IN THE SEMIOTICS OF TEXTS 200, 200-60 (1984).

IN FABULA: LA COOPERAZIONE

'51See supra Part i.

"52See Stramignoni, supra note 128. 53FoUCAULT, supra note 2, at 332.