EUROPEAN PRIVATE LAW: POSTMODERN DILEMMAS AND CHOICES
Towards a Method of Adequate Comparative Legal Analysis

J.H.M. van Erp (Maastricht University)


Postmodern death of comparative law?

In this inaugural lecture held on 25 September 1998 at Maastricht University, the leading question is how comparative lawyers should proceed, how they actually proceed and in which way this tension between the ideal and reality might be solved in both a theoretically and a practically acceptable way. First the comparative-law method is analysed from the perspective of a modern (abstract-methodological) ideal, followed by an analysis from the perspective of a postmodern ideal. Modern comparative law uses a functional method, aimed at finding similarities and convergence. Postmodern comparative law stresses the value of dissimilarities and divergence. It even questions whether comparative law is at all possible, as the comparative lawyer's identity might make it impossible for him/her to comprehend a foreign legal system. This would mean the postmodern death of comparative law. But is this really what will happen? The practice of comparative law will, no doubt, continue. It is sufficient that comparative lawyers realise what, ideally speaking, is expected from them, and proceed in such a way that they attempt to reach the ideal. This is what might be called 'adequate comparative law', which still has a very long life to live.


Cite as: J.H.M. van Erp, European Private Law: Postmodern Dilemmas and Choices. Towards a Method of Adequate Comparative Legal Analysis, vol 3.1 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (August 1999), <http://www.ejcl.org/31/art31-1.html>

Contents
1. Introductory remarks
2. Choices
3. Comparative law from the perspective of a modern (abstract-methodological) ideal
4. Comparative law from the perspective of a postmodern ideal
4.1 Postmodernism
4.2 Jayme's view
4.3 Legrand's view
5. Adequate comparative legal analysis
5.1 The practice of comparative legal analysis
5.2 Comparative legal analysis: Between ideal and reality
5.3 Application of the above: Dilemmas and choices in the development of European private law
6. In conclusion
Notes

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