Sei sulla pagina 1di 11


Citation: 46 Am. J. Comp. L. 607 1998

Content downloaded/printed from

HeinOnline (
Wed May 27 12:32:58 2015
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:


Is Comparative Law a Distinct Discipline?

Jurists studying their domestic law ask what it is or should be.
Comparative lawyers compare the law of different legal systems. Are
these really distinct enterprises? Many domestic lawyers think so because they assume that their own cases, statutes and treatises are
the only authorities relevant to the question of what their own law is.
Italian cases or French statutes or German treatises could only be
relevant to Italian or French or German law. They do not think this
conclusion requires argument. They take it as obviously true.
Comparative lawyers often react in the same way, in part because of their own experience. When they study how the law of different countries deals with a particular problem, they usually find that
the decided cases involve different facts, and that the law is stated
differently in statutes and treatises. They promptly assume that the
law of France deals with the problem differently than the law of
Here I will argue that the law of different legal systems may be
much the same even if the decided cases and the authoritative statements made in statutes and treatises look different. To decide
whether it is the same requires a careful analysis which should be
made in the same way by a comparative and a domestic lawyer. To
the extent that the law turns out to be the same, then it should be
analyzed in the same way by both the comparative and the domestic
lawyer. Their methods begin to diverge only when the law they are
studying is genuinely different, and even then, their methods are interdependent. Neither can neglect the other's conclusions.
Let us consider, successively, the states in which a comparative
or a domestic lawyer might find the law of a particular jurisdiction.
One possible state is that of extreme confusion: there might be a
mass of case law and no idea what rules the courts are following or
what principles of justice or policy are guiding them. Even to describe
the existing state of the law, neither the domestic nor the comparative lawyer can simply catalog the decided cases. Case law is law only
to the extent it indicates or affects the way new cases will be decided.
Merely to describe the law, the comparative and the domestic lawyer
GORDLEY is Shannon Cecil Turner Professor of Law, University of California at



[Vol. 46

must ask which facts mattered and are likely to matter again. As
they do so, they will necessarily be formulating rules: on certain
facts, the courts have reached certain results in the past, and can be
expected to do so in the future. They will also be making guesses as to
which principles of justice or policy have guided the courts since-the
better they identify these principles, the better they can tell which
facts matter.
To do their work, both the comparative and the domestic lawyer
must assume that the judges' decisions exhibit regularities even
when the judges themselves cannot state the rule that describes
these regularities. The regularities are there because judges are
guided by some principles, even principles they cannot fully explain
but grasp dimly. By studying their decisions, we often learn more
than the judges themselves could say about these principles. If there
were no rules or principles behind the decisions, however dimly
grasped, the case law would be random noise. There would be no regularities. And case law could not be a source of law, as it is even in
civil law countries.
It would seem, then, that anyone who is trying to make sense of
case law must proceed on the same assumptions and in much the
same way whether or not he looks at the case law of more than one
jurisdiction. If that is so, then the distinction between studying domestic law and studying comparative law breaks down. The only difference would seem to be that the domestic lawyer thinks he can
study only domestic legal authorities. But he should not. If he wants
to understand the regularities in his own case law, he should look at
foreign case law as well to see if the regularities are the same or if the
judges seem to be guided by similar principles.
Indeed, if they are, then foreign case law may be as illustrative
as his own of the path his own courts are taking. It should not surprise us that Basil Markesinis found William Prosser's classification
of American privacy cases helpful in understanding European law; 1
or that Allan Farnsworth argued that American law does not need a
duty to negotiate in good faith since American courts already reach
most of the same results as European courts that recognize such a
duty;2 or that in Germany, a typical classroom illustration of the doctrine of Wegfall der Geschdftsgrundlageis an English case in which a
flat to view a coronation procession was rented at a suitably enhanced price and then the coronation was postponed. 3 What should
surprise us is that these are isolated examples. If foreign and domestic courts are guided by the same dimly grasped rule or principle, the
1. B.S. Markesinis, A Comparative Introduction to the German Law of Torts 216

2. Farnsworth, "Precontractual Liability and Preliminary Agreements: Fair
Dealing and Failed Negotiations," 87 Colum. L. Rev. 217, 242-42 (1987).
3. Krell v. Henry, [1903] 2 K.B. 740 (C.A.).




domestic lawyer should be consulting the foreign case law all the
Suppose, next, that the state of the law is less confused. One
finds, not merely a mass of unrationalized case law, but authoritative
statements of the rule the judges are to follow or the principles that
are to guide them. These authoritative statements might be rules enacted by lawmakers or the opinions of legal scholars or of judges
themselves. Once again, a comparative and a domestic lawyer should
proceed in the same way. They should ask whether these statements
are right.
Even the most authoritative statement of a rule or principle
might be wrong in the sense that it does not describe the law in force.
In the first place, the rule or principle might be truly unintelligible. If
so, judges cannot be following it.
A rule might be unintelligible because it is hopelessly vague.
Some English lawyers think that the German rule that a party must
act in "good faith" is almost meaningless. For that reason, they don't
want such a rule in England. I am not sure they are right. But if they
are, then the rule cannot really be in force in Germany even though it
is found in Section 242 of the German Civil Code. No one can follow a
hopelessly vague rule. Some German jurists have said that Section
242 is not a rule in the ordinary sense. It does not tell us what result
to reach in a definable class of cases. 4 They seem to think of it is as a
general principle that guides judges or could inform more definite
rules. 5 But that can only be true if the expression "good faith" means
Again, a rule or principle might be unintelligible because it lacks
theoretical coherence. Some German courts say that the state has expropriated property and must pay compensation when it imposes a
particular sacrifice on the property owner (Sonderopfer)rather than a
burden on a class of citizens. 6 Some French jurists once said that a
party gets relief for duress only if a threat overcame his free will.
Some Americans think that to obtain relief from an unfair contract, a
party must have been under a bargaining disadvantage. 8 To see if
courts are following these rules, one must first make sense of such
concepts as "particular sacrifice," "overcoming the will by a threat," or
"bargaining disadvantage." If they make no sense, then neither do
the rules.
4. E.g., Ginter H. Roth in 2 Minchener Kommentar zum Bargerlichen

Gesetzbuch to 242 no. 1 (Kurt Rebman & Franz Jiirgen Sacker eds., 3rd ed. 1994).
5. Id. nos. 20, 33.
6. See Jan Wilhelm, Sachenrecht 159 (1993).
7. 4 Charles Aubry & Charles Rau, Cours de droit civil frangais 343 bis. (4th
ed. 1869-71); 24 Charles Demolombe, Cours de Code Napolgon 151 (1854-82).
8. For a criticism, see Gordley, "Equality in Exchange," 69 Calif. L. Rev. 1587,
1633-35 (1981).



[Vol. 46

One can say the same of general principles that are supposed to
underlie particular rules. Did Kant's categorical imperative or Rawls'
version of it ever guide judges or lawmakers? To see if it did, one
must first know whether it could. Since the time of Kant, some philosophers have argued that it is not sufficiently coherent to furnish any
Moreover, even if a rule or principle is intelligible, courts may
not be following it even if they say they are. The cases that test their
resolve to do so may not yet have arisen. Perhaps the rule has been
framed too broadly and the problem will not be recognized until a
case arises in which the rule does not seem to give the right result.
For example, American courts and scholars say that a promise is enforceable when the promisee relies on it in a way the promisor could
reasonably have expected. 9 But if a rich man promised to leave his
son money and later died insolvent, and the son had relied by earning
nothing that would enable him to support himself, I doubt if a court
would allow the son to line up with his father's creditors.
Even if the courts have in mind a case that has not yet arisen
when they announce a rule, we still cannot be sure what they will do
when the case actually arises. For example, the highest Dutch court
announced in 1982 that when contract negotiations are far advanced,
a party who breaks them off may be liable for what Americans call
expectation damages. 10 But no Dutch court has yet imposed such a
liability. 1 The drafters of the New Dutch Civil Code refused to lay
down a rule because they wanted to wait and see how the case law
develops. They are right that we do not know how the case law will
develop until it does.
Moreover, courts may say they are following a rule or principle
when they are not doing so even in the cases that have already
arisen. Throughout the 19th century, American courts of equity said
that they would not give relief merely because a contract was onesided. They would only do so when the one-sidedness proved that
fraud had been committed.' 2 In fact, they gave relief to parties who
had never even claimed there was fraud. 13 Today, French jurists
often say that relief for an unfair price will be given only in cases

9. Restatement (Second) of Contracts 90 (1979).

10. Hoge Raad, 18 June 1982, Nederlandse Jurisprudentie1983, 723.
11. van Erp, "The Formation of Contracts," in Towards a European Civil Code
117, 129 (A.S. Hartkamp, M.V. Hesselink, E.H. Hondius, C.E. du Perron & J.B.M.

Vranken eds. 1994). Dutch lawyers have told me that is still the case.
12. Simpson, "The Horwitz Thesis and the History of Contracts," 46 U. Chi. L.
Rev. 533, 569 (1979).
13. James Gordley, The Philosophical Origins of Modern Contract Doctrine 154-

57 (1991).



specified by statute. 14 In fact, when a price is seriously unfair, French

courts have given relief on the grounds of fraud, duress and mistake
even though no one was lied to or threatened and the only mistake
was to contract at a disadvantageous price. 15 The principle, according
to the 19th century Americans and some 20th century French, is that
the parties should be allowed to make whatever bargains they wish,
fair or unfair. If this principle had actually guided them they would
have followed the rules they announced. But they did not.
In these instances, once again, the comparative and the domestic
lawyer face the same task. They have to decide whether the law in
force actually conforms to statements of rule and principle that are
regarded as authoritative. If the law does not, they have to ask what
rules and principles it does reflect. Again, the only difference seems to
be that the domestic lawyer thinks he only needs to study the legal
authorities of a single jurisdiction. But once again, he should not.
Judges or scholars or lawmakers in another jurisdiction, facing the
same problem, may have formulated a rule or acknowledged a principle which, in fact, better describes the law in force in his own jurisdiction. In that case, it is a better statement of the law in his own
jurisdiction. He should no more ignore what they say than an American physicist should ignore a German or an Italian.
In addition, by looking at the law of other jurisdictions, the domestic lawyer can escape one source of systematic bias when he considers his own law. When a rule is supposed to be authoritative,
particularly when it is contained in a statute or code, courts and
scholars want it to state the law in force. In considering whether it
does, they are often as objective as General Pickett considering the
feasibility of a charge ordered by General Lee. Looking at foreign law
can help them. If the Germans discover that the Americans are actually finding the concept of good faith helpful even when not required
to do so by statute, then they have all the more reason to think it is
helpful. If the French discover that no one else would consider the
relief that they give from an unfair contract to be relief for fraud,
duress or mistake, then they have all the more reason to think that it
is not. It is merely a pretense occasioned by an unfortunate provision
of their own code.
With these considerations in mind, we can examine one of the
standard exercises of comparative law: finding the way in which particular legal systems accommodate for the absence of particular doctrines and institutions found in others. The fact that a system has to
accommodate may illuminate the principles at stake. The accommo14. See, e.g., Frangois Terr6, Philippe Simler & Yves Lequette, Droit civil Les obligations 295-97 (5th ed. 1993), although they also mention the courts' scrutiny of
amounts paid mandataires and agents d'affaires.
15. E.g., Cass. civ., 29 Nov. 1968; Cass. req., 27 Jan. 1919; Cass. req., 27 Apr.
1887; Paris, 22 Jan. 1953; Douai, 2 June 1930.



[Vol. 46

dation may be another instance of a rule that is actually in force but

not yet acknowledged. If so, a jurist should be interested even if he
only wishes to know about the law of his own jurisdiction.
Take, for example, the enforceability of informal promises to
make gifts to charitable causes. Under the medieval and early modern ius commune, informal executory promises to make gifts were unenforceable as a general rule. But there was an exception for
promises made to charities, or, as the jurists then put it, for promises
ad pias causas.16 The French and German Civil Codes retained the
old general rule but made no mention of this traditional exception.
Yet French courts have enforced promises to give to charities by saying they are really exchanges in which the donor receives recognition
or satisfaction.' German courts have done so by claiming that the
charity is a mere conduit to the ultimate beneficiary and therefore
not a donee. 19 Despite the doctrine of consideration, which is supposed to require a bargain, common law courts once enforced such
promises by finding consideration in some act of the charitable organization such as naming a scholarship fund after the donor. 20 With the
rise of the doctrine of promissory reliance, courts began saying that
such promises were enforceable because the organization had relied
on the promise. But the courts rarely demanded proof of reliance.
Indeed, the Second Restatement of Contracts says that promises to
charities are to be enforced without any evidence of reliance.
These contortions suggest that modern courts are guided by a
principle they do not acknowledge: that promises to give to charities
are an especially deserving type of promise that should be enforced
without a formality. If courts are consistently enforcing them, then
the rule that is actually in force in all these jurisdictions is the rule of
the ius commune: informal promises to give ad pias causas are enforceable. If so, then the rule should be stated exactly that way for it
is a better description of French, German and American law than the
rules stated by the French, German and American jurists. Or it could
16. See, e.g., Antonius Gomez, Variae resolutiones, iuris civilis, communis, et regii
t. 2, cap. 4, nos. 10, 14 (1759); Leonardus Lessius, De iustitiaet iure: cetereisque virtutibus cardinalibuslibri quatuor lib. 2, cap. 18, dub. 13, nos. 97, 102 (1628); Julius
Clarus, Sententarium receptarum liber quintus lib. 4, "Donatio" q. 15 nos. 1, 3 (1595).
17. French Civil Code art. 931; German Civil Code 518.
18. E.g., Cass. civ., 5 Feb. 1923, D. 1923.1.20; Trib. civ. Langres, 15 Mar. 1900, D.
1900.11.422; Cass. civ., 19 July 1894, D. 1895.1.125. See John Dawson, Gifts and
Promises 84-96 (1980).

19. E.g., RG, 7 May 1909, ERGZ 71, 140.

20. Allegheny College v. Nat'l Chautauqua County Bank, 159 N.E. 173, 176 (N.Y.

1927). Similarly, Congregation of B'nai Sholom v. Martin, 173 N.W.2d 504, 510
(Mich. 1969)(consideration found in commitments of other subscribers to donate
money); Rogers v. Galloway Female College, 44 S.W. 454, 455 (Ark. 1898)(considera-

tion found in commitment to locate college in a particular town).

21. Barnett & Becker, "Beyond Reliance: Promissory Estoppel, Contract Formalities and Misrepresentations," 15 Hofstra L. Rev. 443, 451-53 (1987).
22. Restatement (Second) of Contracts 90(2)(1979).



be that sometimes, a French court will not enforce such a promise

unless the donor received some satisfaction; that a German court will
not do so if the gift is made directly to the charitable beneficiary; that
an American court will not do so if there is no possibility of reliance.
If so, such decisions contradict the very principle that explains the
contortions the courts go through in other cases. The law is internally
Thus, the standard comparative law exercise turns to be one of
the most reliable procedures to screen domestic law for misstatements of rules or contradictions between rule and principle. It simply
isn't likely that different systems would try to accommodate their
own rules and doctrines in similar ways unless they are guided by the
same principles. If they are guided by the same principles, it isn't
likely that every accommodation is equally consistent with these
principles. To understand one's own principles, and the possible deficiencies in one's own accommodation, one should look at other systems. Again, comparative and domestic lawyers should be doing
exactly the same thing.
In the instances we have considered thus far, they are doing the
same thing because the law of different legal systems is much the
same. To the extent it is different, then, admittedly, their tasks are
different because their goals diverge. The domestic lawyer merely
wants to understand his own law.
Nevertheless, if our argument, is correct so far, the law of different countries may be much more the same than we think. There
might be a veritable ius commune. We will not know until we look
behind the differences just discussed in the cases that happen to have
arisen and the ways the law has been stated. Even when there are
significant differences, however, the tasks of the domestic and the
comparative lawyer are still complementary. Each should pay attention to what the other is doing.
It may be that two legal systems are trying to do the same thing
but they are doing it in different ways. To put it another way, the
rules that are actually in force are different even though the principles underlying them are the same. Possibly, given the principles,
one rule is simply better than the other. That is the easy case. If part
of the domestic lawyer's job is to take a critical view of his own legal
system, looking at alternative solutions is an integral part of that
Or, possibly, neither set of rules is superior. But surely, in that
case, the domestic lawyer would not only want to assure himself that
neither set is superior, he would want to know why.
It might be that the same principle can be implemented equally
well by either set of rules so that it doesn't matter which one chooses.
For example, the principle that we should avoid head on collisions by



[Vol. 46

cars traveling two-way streets in opposite directions can be implemented equally well by requiring everyone to drive on the right side
of the road or on the left.
Or it might be that one rule is superior under one set of circumstances and another rule under different circumstances. The English
common law allowed a land owner to pump as much ground water as
he wanted and to make a "reasonable use" of water in an adjoining
river or lake. The drier states of the American West have often
adopted rules of prior appropriation in which once someone puts
water to a beneficial use, he can do so in the future. 2 3 The very contrast illuminates the principles behind the rules. They have to do
with the fair and efficient allocation of resources. They are hard to
state, but one's understanding would be impoverished if he only knew
the law of California, or the old law of England.
Or it might be that the principles are the same and the rules are
different because competing principles have been given different
weight or reconciled in a different way. Observing a foreign legal system then helps answer a hypothetical question about one's own: what
would happen if we made a similar accommodation among competing
principles? It may be that the consequences are not so bad. An Englishman who looks at the German experience might be less afraid
that recognizing a right of privacy would lead to a flood of litigation.
Or it may be that the consequences are disturbing. A European who
wants to strengthen freedom of the press at the expense of personal
privacy should be interested in the decisions of American courts.
They have held that newspapers are entitled to print the name of a
rape victim while the rapist is still at large, 24 and the picture of an
inmate of a mental hospital whose friends and family do not know
she is under treatment.
My point here is not that comparative law is useful when we consider reforming domestic law. My point is that, in cases like these,
domestic law is shaped by the convictions of jurists about what would
happen if competing principles were accommodated differently. It is
their job as domestic lawyers to form their convictions responsibly.
Looking beyond their own national experience is part of that job.
Suppose, however, the principles themselves differed rather than
merely the weight attached to them or the way they were reconciled.
It might be, of course, that the difference could be understood in
terms of higher principles that the two systems had in common. But
suppose the rules of one system were based on a value or principle
utterly foreign to the other. Then, indeed, the study of the foreign

See John E. Cribbet & Corwin W. Johnson, Principlesof the Law of Property
(3rd ed. 1989).
Florida Star v. B.J.F., 491 U.S. 524 (1989).
Howell v. New York Post, Inc., 612 N.E.2d 699 (N.Y. 1993).




principle would not illuminate the principles of domestic law. But

then, comparative law would also be impossible. We cannot compare
things that are utterly different. We can say that things differ in a
certain respect only if they have something else in common that
makes comparison possible. Orange light has shorter waves than indigo, and sea water is saltier than Perrier. But what would it mean to
compare the color orange with the taste of sea water? A biologist
compares us with other vertebrates and learns about the different
ways of being a vertebrate. He does not compare vertebrates with
sun-spots or the Dow Jones Industrial Average or the poems of Gerard Manley Hopkins. George Fletcher is right that there are "philosophical and ideological differences among legal cultures." 26 But if
we can describe our differences, it must be because of what we share.
If that is so, then studying the differences will shed light on what we
have in common.
One wonders, then, why legal scholars teach and write about law
as they do. Even if the holding of a foreign case or the formulation of
a foreign statute or the analysis of a foreign scholar bears precisely
on a problem under discussion, few scholars will mention it when
they are teaching or writing about domestic law. Yet, if our argument
is correct, the foreign authority may be of as much use in clarifying
domestic law as a domestic one.
Part of the problem is that legal positivism has become an ingrained habit even when it is no longer an intellectual conviction.
Scholars assume that a domestic authority is necessarily more relevant to domestic law. But part of the problem is with the teaching
and writing of the comparative lawyers. They have the training to
read foreign authorities, to see if they are relevant to domestic
problems, and to explain them to others who can then see for themselves. Often, however, they are content to describe differences that
they find on the surface of foreign cases, statutes, and treatises. It is
not surprising if a domestic lawyer cannot see if he himself is addressing the same underlying problem, let alone what foreign authorities could teach him about it. We comparative lawyers often
complain that our colleagues see our work as peripheral. The best
cure is to see ourselves as participants in a joint enterprise in which
our task is to give them something they can use.

26. Fletcher, "Comparative Law as a Subversive Discipline," 46 Am. J. Comp. L.

694 (1998).



[Vol. 46