Book Review: The Enigma of Comparative Law. Variations on a Theme for the Twenty-First Century
| Author | Mark Van Hoecke |
| Published date | 01 September 2005 |
| Date | 01 September 2005 |
| DOI | http://doi.org/10.1177/1023263X0501200307 |
| Subject Matter | Book Review |
298 12 MJ 3 (2005)
Esin O
¨ru
¨cu
¨,The Enigma of Comparative Law. Variations on a Theme for the Twenty-
First Century, Brill Academic Publishers, 2004, vi + 242 pp., hardback, s70,
ISBN 90-04-13989-3
This is one of the very few monographs on ‘comparative law’. It is true that many books
have been published that claim to be ‘introductions’ to, or ‘overviews’ of, comparative
law. Mostly, however, they are mainly, if not solely, pure descriptions of different legal
systems or parts thereof used within the frame of a comparison with one’s own legal
system. Such books should rather be titled ‘Introduction to foreign law’, ‘Family law
within some main European legal systems’ or ‘The way accidents are treated legally in
different States’. They do not concern ‘comparative law’ or some of its main problems,
such as comparative methodology. But, as they are, at least to some extent, ‘comparing’
legal systems and/or legal solutions, it seems difficult to deny them the right to refer to
‘comparative law’ in their titles. This, however, is not the only reason why Esin O
¨ru
¨cu
¨
would be more flexible and tolerant in respect of the use of such terminology. For her, the
varying approaches to or within comparative law should be seen as possible ‘variations’,
as with music. Although she herself obviously adopts a broad, contextual approach to
comparative law rather than a narrow ‘black letter’ ‘functional’ approach, she admits that
each of these approaches may be useful according to the context and the aim of the
‘comparatist’ (see on this esp. Chapter 6 ‘Intermezzo’, 61-64). This pluralist approach is
to be found in the very structure of the chapters of the book. Each presents a sub-theme,
with two sections, called respectively ‘Variation 1’ (the theme as discussed within the
broad approach) and ‘Variation 2’ (the theme as analysed from a narrow view on
comparative law). By using this format, the author is showing, in a very pedagogical way,
how these approaches differ and which problems and limits they each have to face.
In her introduction, called ‘Overture’, Esin O
¨ru
¨cu
¨explains her ‘musical’ terminology
and how it represents the approach she wishes to adopt. Of course, every ‘transplant’ of a
vocabulary from a rather different field entails problems of comparability. In this case,
however, there is no attempt to introduce musical terms as a new core vocabulary for
comparative law: the author uses them merely to suggest a broad variety and flexibility
within comparative law. For this purpose, her choice seems very appropriate.
The next chapters contain, respectively, the following sub-themes: What is
‘Comparative Law’? (Ch.1, 7-18). What is ‘comparability’ and to what extent is it
needed? (Ch.2, 19-32) Why compare? (Ch.3, 33-39) What should one compare? (Ch.4,
41-50) How does one compare? (Ch.5, 51-60). In these chapters the varying appr oaches
to those respective sub-themes of comparative law are described by putting the two
‘variations’ alongside each other. These analyses are succinct but quite complete as to
what has been discussed in comparative literature over the last few decades. It is
interesting to note however that the parts on the narrow variation are notably shorter
than those on the broader approach. On the one hand, this may be partly explained bythe
fact that the broader variation is each time treated first. But, on the other hand, one
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