Book Review: Comparative Law in the Courtroom and the Classroom
| DOI | 10.1177/1023263X0401100207 |
| Published date | 01 June 2004 |
| Author | Jacques du Plessis |
| Date | 01 June 2004 |
| Subject Matter | Book Review |
Book Reviews
206 11 MJ 2 (2004)
Basil Markesinis, Comparative Law in the Courtroom and the
Classroom, Hart Publishing, 2003, xxxii + 273 pages, hardback, £ 25.00.
After thirty five years of teaching comparative law, Professor Basil Markesinis has
taken stock of the state of the subject, and has made some provocative suggestions as to
the path it should take in future. In essence, he argues that during this period, prominent
comparative lawyers have failed the subject by being too involved in Roman law, while
they should rather have devoted themselves to attracting the attention of judges and
practitioners – especially by the attractive ‘packaging’ of comparative materials. To
back up this argument, he makes use of searches of certain legal publications such as
law reports and journals which show that these comparative lawyers were rarely cited.
However, he does point to a recent change in climate, reflected in the well-known case
of Fairchild v Glenhaven Funeral Services Ltd,1 where the court displayed an active
interest in foreign law. As to the possible reasons for this change, Markesinis expresses
himself as follows:
I might be excused for claiming that this change is partly due to the method I have been
urging upon my English colleagues throughout my career. And if this sounds immodest
and un-English, I plead in my support Montaigne, an author not known for pomposity.
For he wrote: ‘A man of straight and elevated mind who judges surely and soundly
employs in all circumstances examples taken from himself as well as from others, and
frankly cites himself as witness as well as third parties. We should jump over those
plebeian rules of etiquette in favour of truth and freedom’.2
There can indeed be little doubt that over the years Markesinis has successfully
practiced what he preaches, and especially influenced the English judiciary in the field
of the law of torts or delict, but also the broader field of obligations, by authoring or
editing some celebrated standard works. However, as we have seen, Comparative Law
in the Courtroom and Classroom is not simply a positive appeal to promote effective
communication between academics and the courts. Of particular interest is the charge
that so many prominent comparative lawyers wasted their time by being involved in
Roman law, or had the ‘wrong focus’, thus holding back the development of the subject,
and consigning it to the ‘ghetto’ for such a long time. For this charge to be taken
seriously, it cannot, of course be based on mere personal preference for one subject
rather than another. It has to be backed up by substantive arguments on how
comparative law and legal history (and especially Roman law) relate to legal education
and legal practice.
1. [2002] 3 WLR 89.
2. Markesinis, Comparative Law in the Courtroom and Classroom, (Hart Publishing, 2003), 213.
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