Vol. 9.3 October 2005


Esin Örücü, The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century (Leiden/Boston: Martinus Nijhoff

Esin Örücü, The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century (Leiden/Boston: Martinus Nijhoff Publishers, 2004), vi + 242 pp., ISBN 90-04-13989-3, EUR 74.


Cosmopolitan, Pragmatic and Complex Comparative Law[1]

The context

The literature on comparative law today is extensive and voluminous. There are, however, numerous epicentres, and a clear and precise picture is not easily obtained. Discerning the mainstream and its opponents is more difficult than it used to be. Nevertheless, we may claim that in recent years we have witnessed a particularly intense debate over the future and new directions in comparative law. This has especially been the case in America, whereas in Europe this type of debate has been buried under the European-integration-oriented discussions. Nowadays, there are pleas for a pragmatic approach, in the classical spirit of Ernst Rabel and Max Rheinstein, as well as post-modern critiques influenced by ideas from anthropology, philosophy, literature, law, and society. Are we to underline sameness or difference? In this specific sense, the situation is somewhat fuzzy.[2] As regards the future of the discipline, we seem to have many incompatible directions and goals instead of one. One of the most visible outcomes of these developments has been the explosive increase in comparative law material and information. The literature is vast, and there are legions of authors.[3]

Nevertheless, it might be argued that if one is genuinely interested in international comparative law as an academic discipline or otherwise as a serious and challenging field of legal research one will have come across the name Esin Örücü. She is Professor of Comparative Law at the University of Glasgow and Emeritus Professor of Comparative Law at Erasmus University in Rotterdam,[4] and a Member of the International Academy of Comparative Law. She is the author of numerous books and articles as well as editor or co-editor of many volumes concerning comparative law and comparative legal studies published in several languages. As such, it will come as no surprise that the scope of her research as a comparatist has been remarkably wide. She deals not merely with standard texts on comparative law or practice-oriented plain comparative law studies, but also with deeply theoretical explorations of the epistemology and methodology of the very subject. Örücü has covered themes from Turkish law to Scottish law, from family law to the epistemic fabric of comparative legal studies, from private law to public law and from micro-comparison to macro-comparison.[5]

Traditionally, many comparative lawyers have had an international background. This is also true for Örücü. Because of her background, she possesses the classical makings of an authentic comparative lawyer; she is embedded in three legal cultures that are quite different from each other, i.e. the Turkish, the Dutch, and the Scottish.[6] Professor Örücü is certainly not a blundering novice but an academically matured and distinguished specialist with an intellectual urge to continue digging deeper into the theoretical core questions of her branch of knowledge.[7] In her own words, ‘an educator, a critic and a comparative lawyer combined’.[8] However, as we know this may cause a problem because professional comparative law and academic comparative law are living together in an uneasy relationship. This problematic tenor can be seen in Örücü’s book too, since it is so thick with scholarship and, thus, evidently slimmer with practical points.

There are some features that make Örücü appear to be a classical comparative lawyer; she did not give in to the pressure built up by critical socio-legal studies, legal anthropology, and postmodern cultural studies of law. Indeed, one should not miss the mark here: she is basically a comparative lawyer – even though leaving a somewhat puzzling impression in methodological and epistemological perspective. When she says ‘we’, she means ‘we as comparative lawyers’. The greater part of her interests is very much mainstream. Accordingly, she has welcomed the classical challenge of making the divisions of legal systems of the world by using largely criticised macro-methods entertained by the old legal families approach.[9] She thinks, with good reason it seems, that the old classification of the world’s legal systems into legal families is no longer satisfactory. She goes on by saying that the strategy of her novel ‘family trees approach’, which she considers essential, is to conceive the picture of the world’s legal systems objectively and neutrally.[10]

Her rather ambivalent stance concerning the globalisation and European private law codification debates may be seen as inconvenient from the point of view of methodologically pluralistic comparative law. For example, she does not clearly express a distinct desire to sustain global diversity in law as does, for example, H. Patrick Glenn, even though her methodological ideas would seem to require this kind of attitude.[11] However, this message is obvious; it can be felt throughout the book. She does not make a plea for cultural unification in law.

All this raises certain expectations concerning her new book, The Enigma of Comparative Law (hereinafter Enigma). The fact that Enigma is not an overly lengthy book does not lower our expectations; quite the contrary. Sometimes, as in this case, exiguity can be a virtue. The present volume can be conceived as a theoretical answer to the question Professor Örücü formulated earlier in different contexts: ‘Unde Venit, Quo Tendit Comparative Law?’[12] So, where are we coming from and where are we going to? In other words, what future is there for comparative law?

I. About the theme

All scholarly writing tends to have certain features that are typical to its specific field of knowledge. However, academic literature on comparative law is curious; it is an established field of legal/law studies and yet there always seem to be the need for comparative lawyers to justify its existence. So, much of the classical literature on the subject keeps repeating how useful and how fundamentally important this field of legal knowledge is. Still, many of those working mainly with comparative law are familiar with certain academic unease that seems to surround this specific discipline. This can be seen on occasions when comparative law seems to be in need of explaining itself. Many of its academic practices were initiated because of the constant need to explain ‘why be a comparative lawyer?’ or ‘what is it that comparative lawyers do?’. This is an important part of the enigmatic character of the field; yes, it is important, by all means it should be practised and taught, and yet something lurks in the shadowy area between nationally oriented mainstream research on law and comparative law. The sole feasible conclusion seems to be that comparative lawyers are different. Örücü sheds light upon this:

I have been researching and teaching comparative law for over twenty-five years and one of the questions addressed to me which has always astonished me, is the second question after the question, ‘What is your specialism?’ has been answered. The answer: ‘I am a comparative lawyer’, invariably gives rise to variants of a second question: ‘What do you compare?’, ‘What is your substantive area of law?’ or better still ‘Yes, but what is your specialism?’ One could of course repeat the first answer or try something like ‘I am a generalist’, or ‘I am a methodologist’. This usually brings a rather blank look and an ‘Ah!’.[13]

Indeed, Örücü has a case. There really appears to be something here that gives rise to a puzzle and, perhaps, even to enigma. But why call comparative law an enigma? The word enigma itself comes originally from Greek "\<4(:", meaning riddle or mystery. This is also the meaning Örücü gives to this concept. According to her, comparative law itself is an enigmatic enterprise and practice, even though she would quite surely accept the simplest classical requirement of comparative law, i.e. in order to compare one must know foreign law.[14] In this sense, Enigma follows quite faithfully the mainstream tradition of comparative law theory, even though the vocabulary is different.

The book itself is a direct reflection of the author’s comprehension of comparative law. So, comparative law is quintessentially a puzzle. It is, according to her, a subject that can be approached solely as an enigma and her book aims to do precisely that. This effort is accomplished by seeking to unravel the enigma through a number of themes and subthemes. Here, her metaphoric source of inspiration is music. She borrows the language and concepts from the theory of music and approaches her subject, i.e. a theoretical discourse on comparative law, polyphonically and by making use of contrapuntal textures. Hence, the model of narrative inspiration is a kind of musical composition combining the parts of the book into a whole. Her main source concerning the theory of music is Aaron Copland’s book from 1950s.[15] This approach, however, seems to work with some reservations. Undeniably, it creates quite a fascinating narrative for the reader, even though it is not always easily accessible.

Örücü uses music chiefly as a methodological meta-guideline and a basis for structuring the book. Themes and variations concerning the theory of comparative law can be, thus, harmonic, melodic, rhythmic, or contrapuntal. This differs from theories that take even substantive ideas from music, such as constitutional legal theory of ‘contrapuntal law’.[16] Yet, her actual speciality is passacaglia, in which the basic theme is seen in a fresh light with the addition of each novel variation. Her texts on the variations on the theme are thought provoking throughout, although they require at least some elementary familiarity with the subject. In this general sense, very little has changed over the last fifteen years, i.e. comparative law is still mainly a matter for scholars and writers even though less so. Nonetheless, Örücü lives in a different intellectual climate than the one which we had previously; today, there is a genuine and growing interest in comparative law, and she knows it.[17]

So all is well then? Well, perhaps not quite. The possible cause for anxiety may be that comparative law is now drawn quite closely to global politics and governance structures – it is not just a tool or an innocent branch of legal studies. In this regard, it may be also something else. Very similar arguments may, according to some, be presented concerning rights, especially human rights and constitutional rights.[18] Both of these fields have a much more important role in comparative law today than in the past.

Enigma follows the idea of theme and variation, so that the present theme is comparative law itself. Subthemes are covered in two variations, opposing challenges – the old orthodoxy versus the fresher challenge or the other way around. After the overture, the intermezzo, cadenza, and finale follow. In practice, the basic structure of the book is such that the author positions two basically opposed views of comparative law up against each other to be exposed for the reader.[19] There is quite a fluctuation when it comes to the length of the chapters and variations. Thus, the richness of the details varies from chapter to chapter giving, sometimes, a somewhat unbalanced impression.

Alongside the textual path, fundamental theoretical questions and dilemmas are treated. The scope of Enigma ranges from convergence vs non-convergence, pro and contra novum ius commune Europaeum to law as culture. In practice, a good number of the commonplace themes of comparative law are visited in the first five chapters dealing with the name of the field, comparability, why to compare, what to compare, and how to compare. In intermezzo, comparative law and law reforms are discussed. In cadenza, the author seizes the opportunity to improvise and goes on by playing without a fixed notation; here, the structure (chapter 10) is more like that of any standard book in the field (i.e. no basic theme or variations thereto). Thus, other questions and topics come into play. These are so-called complex cases for comparative lawyers, with culture meeting law and vice versa, classification and deconstruction of legal systems, the mixed and mixing discourse, and the limits of comparativism. All of these are, of course, relevant themes. Moreover, it is easy to see that these themes are not novel within the discipline; it would appear that only the vocabulary is different from that of the past. Further, the fresh approach and vocabulary make it easier to get rid of the old fear of philosophical difference that comparative law has been accused of suffering from.[20] So, differences are not dangerous for comparative law, quite the contrary.

II. Future directions?

We may, perhaps, say that there are basically two different kinds of epistemological and methodological sets of assumptions as to their tenor. First, one may conceive the discipline as a mature field of research in which basic theoretical building blocks are roughly in the right places and differences concentrate on the subject itself, not the method. Secondly, one may assume that a given discipline is not a mature field in the sense that even its basic building blocks may not be in the right places. Now, when trying to answer the self-imposed question ‘where are we going?’, Enigma chooses the latter path; comparative law is very much an ‘incomplete theme’. This idea of ‘incomplete’ discipline goes along at all times. One may also see this assumption to give partial justification for the variations structure applied in the volume.

In finale, Örücü asks, thus repeating her very basic question, where we (i.e. comparative lawyers) are going to in the future. Here, she has gathered most of her own points and arguments concerning the basic problem of what today’s comparative law may be able to say to a world that is going to be different from the one comparative law have lived with hitherto. Finally, a short coda, more or less the tail piece of the volume, rounds off the book. Here, Örücü ends with a word of caution:

Though our new century will be an ‘era of comparative law’, we must remember that comparative law is not a panacea. Nevertheless, it is imperative that the world of law is approached by comparative lawyers, dedicated to understanding, interpreting and re-presenting both similarity and diversity, not as a cacophonous world but as a euphonic and polyphonic whole.[21]

To a large extent it is unproblematic to place Enigma within the frames of the quite recent intense and lively debate over the future directions in comparative law. The scholarly quality of the text is high, and the text itself quite easy to follow (if initiated), although the metaphoric elements and flavour may sometimes simply spill over so that the general idea is perhaps missed by the reader. Remarkably, the underlying tenor of Enigma is hopeful and optimistic – there is no serious doubt about the ‘comparative law enterprise’ and its future. For Örücü, comparative law is ‘the science of the new century’, and ‘in our century comparative law will reach maturity’.[22] Not even globalisation diminishes the value of comparative law – that would be, according to her, a mistaken view.[23] These are exceptionally straightforward words from a scholar who is, in many other points, exercising her skills performing a critical analysis. Surely, globalisation also means some kind of challenge for the project of comparative law.

Örücü’s conviction is surely an honest one, although, not shared by all comparatists. There seem to be some sceptical voices too which we will leave aside here. Instead, we may point to the complex and flexible notion of comparative law that the volume suggests, namely, that we should approach law (in a broad sense) as if it were the outcome of complex relationships between different and even competing layers of law. This seems to require that law should be analysed also in its relationship with other systems than the legal system itself, i.e. sociological, cultural, religious, political, and economic. This message itself is certainly not a fresh one within comparative law circles, on the contrary. However, the tenor of Enigma is different from the old school – in the centre, there are things like pluralism, flexibility, transpositions, mixité, cross-fertilisation, family trees, and so on, all proving the idea of moving beyond old mainstream. There is more to comparative law than the never-ending quest for unified global law.

It is tempting to say that Enigma appears, in many cases, to choose the side of the old/conventional school instead of the so-called post-modern critique, or ‘crits’, but, the book itself is not by any means a clumsy defence of conventional comparative law.[24] A characteristic example of this is Örücü’s explicit renouncement of the similarity thesis upheld by the old school;[25] it is not required nor needed for a fruitful cross-fertilisation of law in the future world.[26] Here, we see an obvious breach with the old mainstream and its intellectual ‘common core’ type or ‘similar function’ type of epistemic ground. Contemporary comparative law can do very well without too hastily assumed simplified fictions of similarity or difference: ‘However, it must be remembered that “similar” indicates a lack of difference and “difference” a lack of similarity, both ever present unless two things are identical, which state can only be discovered by comparison.’[27]

So, it looks as if Enigma is in favour also of the methodological pluralism that has its origin in the 1990s. According to Örücü, pluralism of methods is not a pest but a strength or a kind of a virtue that will enhance the prospects of comparative law. Indeed, the answer to the ‘non-commensurability’ thesis as well to the ‘cultural constraints’ thesis is not a crude and over-simplified ‘common tradition’ argument. And yes, she really means ‘law’, not de facto exclusively private law as it used to be the case in the past.[28] Even so, the classical comparative law spirit is revitalised and even praised in Enigma: ‘[T]he real hope is that in the long term utilitarian pragmatism and cosmopolitanism will prevail.’[29] Nevertheless, to some extent Örücü is aware that methodological choices and commitments are indeed connected with political choices and commitments.[30] In this conviction she is, of course, not alone in the contemporary circles of comparative law. This is one of the basic causes preventing anyone from confusing, for example, European private law scholarship with comparative law scholarship.[31] Instead, something far more demanding is advocated.

Hence, the theoretical and intellectual requirements for a comparatist seem to pile up into quite a challenge indeed:

She must be able to grasp the underlying assumptions, conceptions and values as well as the economic, social or cultural contexts surrounding the facts and the handling of law. She must grapple with the cultural matrix into which law is embedded. She must develop an awareness and understanding of the multiple layers of systems and the significance of what is observed. Having comprehended, she must then re-represent it for her audience with and explanation and provide and insightful comparison.[32]

One important further notice concerning the demarcations within comparative law should be pointed out. Enigma seems to distinguish implicitly serious comparative law from what, for example, the European Court of Human Rights, the European Court of Justice, and the novum ius commune Europaeum movement are doing, i.e. using comparative techniques while constructing legal arguments or while struggling to patch up a new common body of law for Europe. Örücü’s conception concerning her subject appears to be more complex, nuanced, and academically more ambitious even though it certainly incorporates the practical dimension of comparative law too. One could claim that Enigma advocates a quite complex understanding of the methods of comparative law. Nonetheless, it goes beyond what has been thought about this by many of the earlier comparative law scholars.[33] One should note here specifically the expression ‘beyond’, i.e. Örücü is not going against in the antithetical sense, but continues alongside the old path towards new paths.

Even so, it is of importance for the comparative law approach itself to keep reminding us that we cannot restrict studies to, say, France, Germany, Italy, and England and the USA. Enigma’s tendency to stress the significance of ‘extraordinary places’ is theoretically quite solid if comparative law is truly global and does not restrict its methodological and epistemological vision to that of Euro-American law only.[34] Instead, to name only two examples, we should look at places such as Turkey and Hong Kong. In other words, places one may call extraordinary.

III. Methodological points of view

It would appear that the epistemological and methodological tasks that are listed are all-demanding. Örücü summarises that the comparative lawyer must step out from the private-law-matrix and dare also to study systems other than those of a normative-legal nature. The comparative lawyer should also look beyond America and Western Europe, and try to decipher the intricacies of the ‘different’ and the ‘similar’. Further, even those places that can be called ‘extraordinary’ should be studied so that they do not remain the sole domain of anthropologists, regionalists, or cultural studies proponents alone.[35] These are all general answers to the basic question ‘where should comparative law go?’. In brief, comparative law should go to new places.

Unfortunately, Örücü does not go very far in explaining in detail how these demanding tasks can actually be fulfilled. And yet, this is part of the attraction with comparative law – it allows a great deal of academic freedom and methodological flexibility even though it seems to demand the entertainment of quite strict comparative approaches. Or, as Konrad Zweigert and Hein Kötz have stressed in their mainstream textbook, comparatists need both imagination and discipline.[36] With Örücü, this includes the genuine idea of appreciation of diversity, even though this idea does not exclude the possibility of finding similarities. Even so, Enigma does not share some of the key convictions of earlier writers, such as the idea according to which ‘foreign law is not very different from ours but only appears to be so’, as Basil S. Markesinis stated while stressing the importance of making foreign law more intelligible to ‘our own lawyers’.[37] In the world of today, where the significance of Islamic law is growing, it is not so crystal clear that we make such assumptions of ‘our own’ at all when we deal with comparative law.

What kind of polyphonic music follows from these comparative law tasks can be described as an elegant comparative law theory. However, Örücü’s hopes that legal practitioners may also profit from it may prove too high, though of course not impossible. It may, nevertheless, be openly admitted that it is rather difficult for anyone to offer precise methodological hints, and this is especially true if we are dealing with ‘extraordinary’ systems. However, dealing with ‘extraordinary systems’ may release us from the epistemological trap of ‘common law vs civil law’, i.e. the paradigm of the Western legal tradition and the void of a genuinely global perspective. It is self-evident that studying places which are not ordinarily covered by conventional comparative lawyers may raise doubts defying traditional theories and paradigms. This shift in epistemology, however, also brings about something else. It is not merely about a shift in focus of research and studies; this move seems to imply a shift in epistemic assumptions as well – from the familiar legal cultures to less familiar legal cultures and traditions, from purity to mixité.

If comparative law opens up to other legal traditions and cultures, it would also mean that the discipline becomes more conscious of its own inborn limits. Accordingly, a comparatist can no longer be conceived as a researcher who finds out the truth. Instead, a comparatist is conceived as an interpreter or middleman who exposes his target audience to (foreign) law through her own conception of (foreign) law. This is not basically a post-modern argument of a relativist nature, but more like an accurate description of what comparative law has always been about.

However, is Enigma about conventional or post-modern comparative law? To begin with, this question is in itself quite incorrect. If the ‘crits’ are destined to whip mercilessly their own subject according to the proverb ‘spare the rod and spoil the child’, then Örücü is more like a wise and loving mother whose work is never done; she is familiar with the shortcomings but still keeps believing and educating with a firm but gentle hand. Accordingly, as a composition Enigma is played in the sprit of the composer, i.e. more amoroso, not furioso. Be that as it may, when such topics as the global market, common European law, or the global community are addressed, even though obiter dicta, the tone or spirit could have been more critical. This is because nothing in Örücü’s comparative-legal mindset seems to oppose what Pierre Legrand underlined: ‘The objective … is to find a form that will allow each legal tradition to continue its own vision of its own world.’[38] And yet, Örücü’s argument seems closer to the tradition of comparative law than to Legrand’s ideas.

Apart from other things, Enigma seems to suggest that the theoretical foundation of mainstream comparative law or, if you like, orthodoxy is not so helplessly outdated as sceptics will proclaim. Even though advocating a flexible and, thus, complex understanding of comparative law, Enigma also strengthens the very much so classical project of the discipline – comparison in law is important, comparison is demanding, yet rewarding, both in the practical and in the theoretical sense. But this is not all she does. Örücü helps the reader to grasp some of the major developments within comparative law in the last ten years or so. Enigma succeeds in advocating an idea according to which comparative law of today is not only justified because it facilitates law-drafting, aids the practical improvement of legal systems, and provides an important tool either for the unification of private law or for a more profound legal integration such as in Europe. To summarise, in the world of the 2000s it goes beyond the old disciplinary boundaries and also proves comparative law to be a complex and demanding field of legal studies, certainly not a mere method.[39]

IV. Critique v. tradition

As observed above, Enigma is an undisputed display of high-quality scholarship in comparative law. It also gives support, indirectly though, to the argument according to which comparative law should be a core subject in law students’ university curricula.[40] This cannot be denied. The effort to try to honestly admit the enigmatic and paradoxical nature of comparative law and, despite this somewhat dark premise, to struggle to conceive the positive and the hopeful deserves to be welcomed. Again, the reason is that when comparative law theory confronts the distinct criticism by new strands of comparative law, it cannot simply stick with the old tradition in total denial of the critique. However, it would be equally futile to accept the criticism as such because it has numerous shortcomings and a strong tendency towards exaggeration.[41] Nonetheless, Enigma’s reliance on metaphor and themes and variations is likely to cause slight problems for its readers. This has to do with the fundamentally problematic nature of today’s comparative law theory debates and discussions where the question emerges: Is comparative law a ‘difficult and forbidding field reserved for as special few’?[42] Should it not be more open and accessible to all those who take a serious interest in foreign law?

I mean to say that, even if we would accept Örücü’s optimistic tone and would even see the point in the general effort to try to make sense of comparative law in a novel manner that takes into account the recent debate and undeniably weak points of the old school, then the somewhat difficult accessibility of Enigma is not to be applauded. This brings to light a shortcoming of the book. Even though it is most certainly not the message of Professor Esin Örücü to make comparative law look like a hopelessly difficult and forbidding field reserved for only a special initiated few, this is what Enigma comes close to doing.[43] Unfortunately, the elegant writing strategy chosen as a whole is not necessarily the best for the purpose if one assumes the point of view of the non-initiated comparatist. Nevertheless, it is the opinion of this reviewer that comparative law should be somewhat better accessible. I mean that, if we make the field look like overly theoretical, we may be forced to ask, indeed, whether comparative law is more like a way of life than a specific field of law/legal studies.[44]

Quite regardless of the risk of misinterpretation, the present author understands Örücü in such a manner that she regards comparative law as specific branch of knowledge in which careful study, attention to detail and to context are combined with the quest for scientific rigour.[45] Basically, this is a post-modern message.[46] However: ‘The comparative lawyer must be faithful to the original material, but her personality, views and approach will inevitably colour her interpretation … Each comparative lawyer thinks differently, has different emotional attitudes and a different philosophy of life.’[47] After a passage like this, the reader should exercise extra caution not to miss the mark. Even though different personalities, philosophies, and emotions are taken into account, Örücü appears to do so for practical reasons stemming from the comparative study of law itself. There is no specific legal theory or other discipline to motivate these ideas. So, Örücü’s style may mislead some into reading her text as something that it is not, i.e. relativist comparative law theory. This would seem to be a mistaken comprehension. As a matter of fact, nothing seems really to disturb the basic tenor of Enigma: scholarly rigour, methodologically strict approaches, a high level of academic ambition, and even an idea of comparability are all held implicitly in high esteem.[48] Diversity should be appreciated but commonality strived for when and where possible.[49]

In conclusion, the main argument and core ideas of Örücü should not be treated with unfair suspicion or be ignored, even though the text requires more patience from the reader than many other texts on contemporary comparative law and legal studies do.[50] Who said that the enigma of comparative law would be easy to encapsulate by means of narrative even when following the structure of a complex musical composition? Overall, Enigma is well worth reading and a clear contribution to the still quite scarce theoretically ambitious literature on the subject. Surely, Enigma is a demanding task, but most certainly worth a closer inspection by those interested in comparative law and comparative legal studies. And yet, it does not offer a definitive answer to the question ‘where are we going?’

It is worth noting that Enigma’s plea for methodologically and theoretically pluralistic and ambitious comparative law in this millennium is a reasonable one. It is its core message. Surely, legal science tends to view law too much within a legal system, whereas sociology of law tends to focus on the external element of law, and history of law tends to stress the past. So, comparative law should choose to operate between the extremes. However, Örücü does not seem to appreciate fully how the pluralistic methodology is related to the larger context of law around the world. In accordance with the mainstream or orthodoxy, she talks about a ‘better law’ approach. However, is it not so that comparative law research in a diverse world cannot contain a truly pluralistic view of law if its own methods are based on one-dimensional thinking? Further, it would appear that only pluralistic and non-insular comparative law may be able to resist and to form a kind of counter-hegemonic force that could possess the potential to modify the present legal imperialistic globalisation of today.[51] Taking into account specifically the European rhetoric of ‘better law’, one may claim that harmonisation is indeed a political exercise and, accordingly, it should be recognised as such.[52] With this, comparative law is, of course, not alone. For example, a roughly similar claim may be presented concerning international law.[53] To mention some examples: Who would sincerely believe that the debate over the human rights of those who are terrorist suspects or the justification of a place like the strange prison in Guantánamo Bay would be a purely legal question?

V. Conclusion

Is there a general lesson to be learned from Örücü’s Enigma and its specific flexible, yet demanding, complex but pragmatic cosmopolitan understanding of the discipline? Perhaps there is. The considerations above show that the book does succeed in demonstrating something immensely important in an epistemological and methodological sense. Simply, main-streamers, conventionalists, crits, functionalists, linguists, philosophers, Europeans, Americans, others, post-modernists, sociologists, historians, comparativists, culturalists, feminists, law & economists, etc. – all this plurality does lead to, after all, somewhere. The lesson is that there is no one tradition of comparative law/comparative legal studies but that there are many traditions.[54] The familiar argument of legal pluralism is, thus, transformed so that it also concerns the discipline itself.

So, it would seem that these traditions may give rise to many and partly incompatible legitimate standards of comparative research in law. In this specific sense, the call for integration in comparative law may be outdated.[55] However, luckily Enigma is not carried away by the overpowering affection of ‘difference’ or ‘different’ in the spirit of the comparative law school of thought that lately has taken the ‘Neo-Romantic turn’.[56] This is not likely to be the case since the book is not a post-modern book nor is it orthodox or mainstream; it is something in-between and even something different altogether. In this Örücü is certainly not alone.[57] What is clear, however, is the fact that it sketches a picture of comparative legal studies/studies of law that is not only interesting but also relevant and even fascinating in its details. As such, comparative law has close relations with philosophy of law even though Örücü is far away from those who would like to bring comparative law much more closely to philosophy of law.[58] The present author likes to think that in this Enigma is at its best.[59] At the same time, nevertheless, we may realise that for the hard-line ‘crits’ her position is likely to be too close to the old mainstream.[60] For example, her belief of ‘shared values’ is probably too much for the ‘differences are everything’ movement within comparative law circles.[61]

However, where do we end up with all this? Perhaps, while diagnosing the present condition of our epistemological and methodological illness, we may see the primary cause to be a one-sided diet, i.e. that we nourish our thinking with only one kind of example.[62] In short, Enigma certainly enriches the intellectual diet of contemporary law scholarship. It is hopefully going to be at the forefront of the debate over comparative law theory for the future. To conclude, it is not insignificant that the book was written in a manner genuinely open not only to an American or European, but to a global readership. For these reasons, it is a relief that Örücü does not become entangled in some of the fixations within the discipline such as legal transplants or Common European Private Law debates.[63] Finally, for an American reader interested in comparative law/comparative legal studies Enigma offers an exceptionally interesting point of view because it is not entangled in the American web of hostilities and alliances; on many points it may offer genuinely new perspectives to comparative law.[64] For the European reader, it will be proof of an intellectually interesting life outside the ongoing integration-centred debates.

Jaakko Husa,
Professor of Constitutional Law and General Jurisprudence,
University of Joensuu,
Finland


Cite as: Jaakko Husa, Book Review of Esin Örücü, The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century, vol 9.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (October 2005), <http://www.ejcl.org/93/review93.html>.

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Notes

1. This is a reworked and more detailed version of the review published in Nordic J. Int’l L. 74 (2005) 161.

2. Vernon Valentine Palmer, ‘From Lerotholi to Lando: Some Examples of Comparative Law Methodology’, Global Jurist Frontiers 4:2 (2004) Article 1, available at http://www.bepress.com/gj/frontiers/vol4/iss2/art1/.

3. See also Mathias Reimann, ‘The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century’, Am. J. Comp. L. 50 (2002) 671, at pp. 673-684.

4. See her interesting valedictory lecture (held on 16 March 2005) entitled ‘Looking at Convergence through the Eyes of a Comparative Lawyer’, EJCL 9:2 (2005), available at http://www.ejcl.org/92/art92-1.html.

5. For quite recent studies (in English) concerning Turkish law, see, e.g., ‘Turkish Family Law’, Migrantenrecht 18:4 (2003); ‘The Turkish Constitution Revamped?’, European Public Law 8 (2002) 201; ‘Conseil d’Etat: The French Layer of Turkish Administrative Law’, Int’l & Comp. L.Q. 49 (2000) 679; ‘Turkey Facing the European Union: Old Harmonies and New Harmonies’, Eur. L. Rev. 25 (2000) 57; ‘Turkey: Improving the Lot of Women and Children’, in Andrew Bainham (ed.), The International Survey of Family Law 1997 (1999), pp. 465 ff. See also, e.g., some recent studies on general comparative law and comparative legal studies: ‘Family Trees for Legal Systems: Towards a Contemporary Approach’, in Mark Van Hoecke (ed.), Methodology and Epistemology of Comparative Law (2004), pp. 359 ff.; ‘Law as Transposition’, Int’l & Comp. L.Q. 51 (2002) 205; ‘Approaching Public Law as a Mixed System’, Juridical Rev. (2002) 131; ‘Shifting Horizons for Comparative Law in the New Century’, Asia Pacific L. Rev. 8 (2000) 115; and ‘Comparative Law in British Courts’, in Ulrich Drobnig & Sjef van Erp (eds.), The Use of Comparative Law by Courts (1999), pp. 253 ff.; Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition (1999). Besides publications in English, there are also numerous publications in Turkish as well as in Dutch.

6. Markesinis puts this in the following way: ‘For all true comparatists that I have ever met seem to me to be de facto if not de iure citizens of many countries, lovers of many cultures, unbound by the exigencies of modern nationalism’; Basil S. Markesinis, Foreign Law and Comparative Methodology: A Subject and a Thesis (1997), at p. 45.

7. Her basic attitude towards comparative law is also glimpsed in ‘Overture’ (at p. 1) of the Enigma of Comparative Law (hereinafter Enigma). She starts by stating that ‘comparative law is an enigmatic, paradoxical and elusive subject in that, just as one thinks one has mastered it, another puzzle appears on the horizon’.

8. Ibid., at p. 3.

9. ‘Comparative law needs a fresh approach to the classification of legal systems’; Enigma, at p. 203. There are, however, aggravated voices of criticism that conceive the project or enterprise of comparative law downright as a specific form of (political) governance and even hegemony. See, e.g., Günter Frankenberg, ‘Stranger than Paradise: Identity & Politics in Comparative Law’, Utah L. Rev. 2 (1997) 259 (stating that comparative activities are, in fact, also political interventions). See also David Kennedy, ‘New Approaches to Comparative Law: Comparativism and International Governance’, Utah L. Rev. 2 (1997) 545 (regarding comparative law practice as a project of – intellectual and technical – ‘rulership’).

10. See, generally, Jaakko Husa, ‘Classification of the Legal Families Today: Is it Time for a Memorial Hymn?’, Rev. Intern. Dr. Comp. 56 (2004) 12 (pointing to the methodological difficulties in constructing these categories of macro-groupings which practically all seem to repeat the older classifications even though they explicitly want to break free from disciplines categorising macro-tradition). For Örücü’s idea, see ‘Family Trees for Legal Systems’, in Mark Van Hoecke (ed.), Epistemology and Methodology of Comparative Law (2004), pp.  359 ff. See also P.G. Monateri, ‘“Everybody’s Talking”: The Future of Comparative Law’, Hastings Int’l & Comp. L. 21 (1998) 825 (calling this sort of scholarly work ‘a peculiar enterprise’).

11. See H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (2000), pp. 331-338.

12. See Esin Örücü, ‘Unde Venit, Quo Tendit Comparative Law?’, in Andrew Harding & Esin Örücü (eds.), Comparative Law in the 21st Century, Vol. 1 (2002).

13. Enigma, at pp. 2-3.

14. This is an implicit idea behind all meaningful comparative law and it is accepted largely. However, when comparing culturally remote systems, the task of really understanding foreign law may be too difficult; see for a more detailed discussion, Jaakko Husa, ‘Rechtsvergleichung auf neuen Wegen?’, Zeitschrift für Rechtsvergleichung 46 (2005) 55 (dealing with the epistemic difference between understanding/Verstehen and knowing/Erkennen culturally distant law).

15. Aaron Copland, What to Listen for in Music, rev. edn. (1957).

16. See Miguel Poiares Maduro, ‘Contrapunctual Law’, in Neil Walker (ed.), Sovereignty in Transition (2003), pp. 501 ff.

17. However, the ‘book is written primarily with comparative lawyers and law students in mind’; Enigma, at p. 2.

18. See Duncan Kennedy, ‘The Critique of Rights in Critical Legal Studies’, in Wendy Brown & Janet Halley (eds.),  Left Legalism/Left Critique (2002), pp.  178 ff.

19. E.g., in chapter 4 (What to Compare?) she commences with a presentation of the theme which is macro-comparison. The first variation is a broad understanding of the subject (all legal families/cultures/traditions are worth studying) but the second one is narrower (stating that only the relevant Romano-Germanic and common law systems should be studied). The same narrative structure is applied elsewhere; e.g. in chapter 7, she presents the theme of ‘comparative law and education’. The first variation claims that comparative law is an academic discipline important in law teaching, whereas the other variation maintains as a fact that it should stay on the periphery of the curriculum, i.e. as a kind of ornamental addition. Thus, the reader may pick those parts he considers relevant for his own purposes and ideas. ‘Depending on one’s own personal stance on comparative law, one Variation will have a positive, the other a negative tonality’; Enigma, at p. 6.

20. ‘One of the regrettable tendencies of comparative law scholarship is to ignore the rich philosophical and ideological differences among legal cultures and to stress unity of their results in practice’, says George P. Fletcher, ‘Comparative Law as a Subversive Discipline’, Am. J. Comp. L. 46 (1998) 683, at p. 694 .

21. Enigma, at p. 216.

22. Ibid., at p. 7.

23. Or the other way around or, as John Henry Merriman says: ‘Comparative lawyers have not been terribly important in this movement toward globalization’; Pierre Legrand, ‘John Henry Merriman and Comparative Legal Studies: A Dialogue’, Am. J. Comp. L. 47 (1999) 3, at p. 8.

24. It does not look as if Örücü would really choose the side of the ‘crits’. In other words, the comparative law approaches she is advocating do not exclude the old and do not strike as being something what Monateri (supra note 10, pp. 839-845) calls ‘comparative law as critique’ type of thinking. However, Örücü’s point of view may go along with the kind of critical comparative law that Günter Frankenberg talked about in his widely cited criticism of conventional comparative law; see Günter Frankenberg, ‘Critical Comparisons: Re-thinking Comparative Law’, Harv. Int’l L.J. 26 (1985) 411, at pp. 440-455.

25. On praesumptio similitudinis, see as a paradigmatic example Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law, 2d edn. (1998), p. 40. See also Michael Bogdan, Comparative Law (1994), pp. 92-98. Enigma (at p. 144) also criticises the old school for concentrating too much on so-called mature parent systems.

26. ‘What is wrong is to look only for similarities and overlook differences or look only for differences and overlook similarities’; Enigma, at p. 213. Again, ‘to compare means to look for similarities as well as differences’; ibid., at p. 180.

27. Ibid., at p. 19.

28. ‘There is nothing in the logic of comparative law … to indicate that comparative law should only deal with private law’; ibid. at p. 171.

29. Ibid., at pp. 212-13. She even says that ‘things can only get better’; ibid., at p. 216.

30. This can best be seen in what she has to say in the European ‘new ius commune’ debate: ‘Which strategy is chosen depends on the political and theoretical orientation of the researcher’; ibid., at p. 180.

31. See Jaakko Husa, ‘The Tip of the Iceberg or What Lies beneath the Surface of Comparative Law’, Maastricht J. Eur. & Comp. L. 12 (2005) 73, at pp. 92-94 (basically stating that the European private law approach does not qualify as comparative law because it has a narrower vision and a more limited idea of its own epistemological and methodological toolbox).

32. Enigma, at p. 107.

33. So, the call for interdisciplinary research has been made also by the mainstream functional approach; see Zweigert & Kötz, supra note 25, pp. 11 and 44. This is easy to comprehend; the theoretical basic idea of functionalism in comparative law requires knowledge of how law really works, not just how it is in the books. For example, one may hold that ‘systems must have some institutions to resolve conflicts among their compartments, or mechanisms for ensuring some stability in a changing extra-political environment’ as Tushnet (though in a critical manner) describes the idea of functionalism in comparative constitutional law. Now, to know how law works (what its true functions are) in a system requires, according to this kind of thinking, information about history, politics, economy, and culture; mere black-letter rules do not suffice. See Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’, Yale Law L.J. (1999) 1226, at p. 1238.

34. An ‘extraordinary place’ can be, according to Örücü, several things. First, it may be a place that is not covered by conventional comparative law (i.e. any system outside the normal civil and common law sphere). Secondly, it may be a place in which extraordinary things are happening (such as in Hong Kong in its relation to China, i.e. the ‘two-system’ construction, or Turkey coming closer to the EU). Thirdly, it may be a place where there has been a transmigration of laws between legal systems resulting in different types of mixes, legal pluralism, hybrids, etc. See Esin Örücü, ‘Comparatists and Extraordinary Places’, in Pierre Legrand & Roderick Munday (eds.), Comparative Legal Studies: Traditions and Transitions (2003), p. 467, at pp. 468-469.

35. However, this broad conception of the subject may step outside, according to some, the epistemic boundaries of comparative law. See, e.g., Ugo Mattei, ‘Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems’, Am. J. Comp. L. 45 (1997) 5 (expressing, among other things, the fear of comparative law turning into ‘pseudo-comparative sociology’). There are also other kinds of doubts concerning the possibilities of comparing systems belonging to different cultural families, see, e.g., Mark Van Hoecke & Mark Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’, Int’l & Comp. L.Q. 47 (1998) 495, at pp. 508-509. However, see Bogdan, supra note 25, at pp. 61-67 (going along broadly with  Örücü’s thinking). See even Merriman in Legrand, supra note 23, at p. 28.

36. Zweigert & Kötz, supra note 25, at pp. 36-37.

37. Markesinis, supra note 6, at p. 41.

38. Pierre Legrand, ‘Structuring European Community Law: How Tacit Knowledge Matters’, Hastings Int’l & Comp. L. Rev. 21 (1998) 871, at p. 881.

39. And, once again, Enigma reconciles us with the disciplines tradition. This is because the ‘method or discipline’ dilemma has puzzled the field for a long time. See, e.g., Pierre Arminjon, Boris Nolde & Martin Wolff, Traité de droit comparé, Vol. 1 (1950), pp. 23-41. See also Zweigert & Kötz, supra note 25, pp. 33-47; Bogdan, supra note 25, pp. 21-26.

40. See Geoffrey Samuel, ‘Comparative Law as a Core Subject’, Leg. Stud. 21 (2001) 444.

41. See, for more details, Anne Peters & Heiner Schwenke, ‘Comparative Law beyond Post-Modernism’, Int’l & Comp. L.Q. 49 (2000) 800.

42. Palmer, supra note 2.

43. In other words, is the message from ‘Mount Olympus’ that ‘comparative law is always forbidding and difficult’? Ibid.

44. See William Twining, ‘Comparative Law and Legal Theory’, in Ian Edge (ed.), Comparative Law in Global Perspective (2000), pp.  21 ff., at p. 47.

45. See Peters & Schwenke, supra note 41, p. 834. See even Merriman in Legrand, supra note 23, p. 60 (‘fair, honest, and accurate’).

46. The way in which Örücü deals with Vivian Curran’s article ‘On the Shoulders of Schlesinger: The Trento Common Core of European Private Law Project’ (Global Jurist Frontiers 2:2 (2002) Article 2) is revealing in this matter. Örücü states that Curran has been cited as one of the post-modernist ‘framework relativists’. While discussing Curran’s article, however, Örücü goes on to say that the ‘post-modernist approach to comparability is softening and becoming more realistic’; Enigma, at p. 27.

47. Enigma, at p. 163.

48. Cf. Peters & Schwenke, supra note 41, p. 834.

49. This has to do with the epistemic mentality of comparative law. Örücü states, in a different context: ‘If actors of law, that is academics, judges and lawyers were to adopt a pragmatic and progressive approach rather than using negative terminology such as “pollution” and “contamination” and aligning themselves as “purists”, and “pollutionists”, then comparativism could serve as the tool for interlocking legal systems’; Esin Örücü, ‘Whither Comparativism in Human Rights Cases?’, in Esin Örücü (ed.), Judicial Comparativism in Human Rights Cases (2003), pp. 241 ff.

50. For the sake of clarity, this does not depend on the use of complicated philosophical or overtly theoretical wording, but on the sheer complexity of the subject itself.

51. For a more detailed account on this, see Ugo Mattei, who discusses how the US-based ‘democracy and the rule of law’ philosophy has turned into a kind of imperial law (‘from leadership to dominance’); Ugo Mattei, ‘A Theory of Imperial Law’, Ind. J. Global Legal Stud. 10 (2003) 383.

52. This point is made from the point of view of family law by David Bradley, ‘A Family Law for Europe?’, Global Jurist Frontiers 4:1 (2004) Article 3, available at http://www.bepress.com/gj/frontiers/vol4/iss1/art3/.

53. See Martti Koskenniemi, ‘International Law and Hegemony’, Cambridge Rev. Int’l Aff. 17 (2004) 197 (stating that international law can be understood as an aspect of contestation and a technique that articulates political claims in terms of law).

54. The present writer has suggested, in a different context though, that the ‘methodology of comparative law in the new millennium is necessarily a pluralistic one and it lacks a common framework or paradigm’. See Jaakko Husa, ‘Farewell to Functionalism or Methodological Tolerance?’, Rabels Z 67 (2003) 419, at p. 446. See also Legrand, supra note 38, at p. 880, who stresses the importance of (European) legal traditions to be recognised ‘as epistemic peers in that they afford two legitimate approaches to the law’.

55. The call is constructed on a historically sweeping analysis of comparative law by Reimann, supra note 3, pp. 695-699 (suggesting three steps: establishing a canon, agreeing upon goals, and committing to cooperation). See also Van Hoecke & Warrington, supra note 35, pp. 534-535 (underlining the importance of building a common legal language – transdisciplinary or interdisciplinary – in order to enhance the future of comparative law research).

56. See James Q. Whitman, ‘The Neo-Romantic Turn’, in Pierre Legrand & Roderick Munday (eds.),  Comparative Legal Traditions: Traditions and Transitions (2003), p. 312 ff., at p. 314 (seeing much of the difference-oriented comparative legal studies to remind nineteenth-century Romanticism, but saying that this epistemic tendency is strange because one may misunderstand even one’s own law, not just foreign law).

57. Palmer, supra note 2, concludes that ‘there is not, and indeed cannot be, a single exclusive method that comparative law research should follow’. Cf. Husa, supra note 54, p. 447.

58. For such an argument, see William Ewald, ‘Comparative Jurisprudence I: What Was it like to Try a Rat?’, Univ. Penn. L. Rev. 143 (1995) 1889.

59. Given this, it is a shame that the book itself as an artefact was not properly finished. There are some technical problems, even though the most annoying one is the list of references that does not seem to follow any logic at all; marking techniques changing almost from one reference to another. These problems should, indeed, have been avoided in a book carrying such an interesting message and argument.

60. If one were to take with utmost seriousness the idea according to which we cannot break free from our epistemic framework which carries a ‘hegemonic project’ or a ‘form of legal paternalism’, then it would probably seem on many points that Enigma is a prisoner in an epistemic (Western) jail. For this type of critique, see Frankenberg, supra note 9, pp. 260-262, 270.

61. See, e.g., Örücü, supra note 49, p. 237.

62. Cf. Ludwig Wittgenstein, Philosophical Investigations (1953), p. 593.

63. The European debate on a common private law is of specific interest for comparative law because the debate is also a contest between different legal disciplines (European Union law, international private law, and comparative law). See Christian Joerges, ‘The Challenge of Europeanization in the Realm of Private Law: A Plea for a New Legal Discipline’, Duke J. Int’l & Comp. L. 14 (2004) 149, at pp. 154-164.

64. About the scholarly disintegration of American comparative law, see, e.g., Nora Demleitner, ‘Challenge, Opportunity and Risk: An Era of Change in Comparative Law’, Am. J. Comp. L. 46 (1998) 647. See also Husa, supra note 31, pp. 73-75.



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