Comparative Law — A Subject in Search of an Audience
| Date | 01 January 1990 |
| Author | Basil Markesinis |
| Published date | 01 January 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01788.x |
THE
MODERN
LAW
REVIEW
Volume
53
January
1990
No.
1
Comparative Law
-
A Subject in Search
of
an Audience
Basil
Markesinis”
Twenty-five years have elapsed since the late Sir Otto Kahn-Freund delivered his inaugural
lecture in the University of Oxford on ‘Comparative Law as an Academic Subject’.’ In
1973
he returned to this broad topic in the second Chorley Lecture;2
so,
when Professor
Harlow first approached me on behalf of
The
Modern
Law Review
to deliver tonight’s
lecture, her initial suggestion was that I review the situation on the eve of new and imminent
developments on the European front. My own feelings about my subject were and are
of great but unfulfilled
expectation^.^
Comparative law
is,
I believe, still searching for
an audience even where it has found a place of sorts in the university curriculum. When
I say that it has failed to find
an
audience I do not, of course, mean that
it
has failed to
attract the attention
of
eminent academics. But I do think it is true to say that it has failed
to excite the imagination of students and practising lawyers and in this term
I
also include
judges.
If
I
am
right in this assessment,
I
think a major reason for the blame lies on those
who profess a primary interest in the subject. For in their endeavours to promote interest
in foreign laws and the comparative method they have (a) undervalued and understressed
the importance of case law and (b) ignored the practice of the courts in every day cases
which do not make the Law Reports (or, even, the practice of litigants in settling those
cases which do not get as far as a judgment in the courts). In this lecture I should like
to explain through six interconnected headings why and how the emphasis on case law,
judicial practice and the study of specific problems could help revive wider interest in
the subject; and on some other occasion
I
might add
a
few thoughts about personalities.
For much has been written about comparative law but little, I feel, about comparative
lawyers.
Case law
and
the teaching of foreign law
Many years of teaching foreign and comparative law mainly
-
but not exclusively
-
to common law lawyers have convinced me of the value of presenting
a
foreign system
to an unfamiliar audience primarily through its case law rather than by means of
an
exegesis
of coda1 provisions.
I
discussed some of my ideas on this point in Brussels in
1983
when
~~ ~
*Professor of Comparative Law, Queen Mary and Westfield College, University
of
London.
This is an expanded version
of
the Shimizu lecture delivered at the London
School
of Economics on November
30, 1989. Nicole Questiaux’s 1989 Choriey lecture will be published in the March 1990 issue of the Review.
1
2
3
It
was published in
(1966) 82
LQR
41.
‘On Uses and Misuses
of
Comparative Law’ (1973) 37 MLR
1.
The view on the other side of the Channel is not that different. See: Tunc, ‘L’enseignernent du droit
compare.’ Presentation in Journee d’etude organist
a
Paris le
22
avril 1988 and published in 1988
Revue
Internationale de
Droit
ComparP,
703.
The
Modem Law Review
53:
1
January 1990
0026-7961
1
The Modem Low Review
[Vol.
53
I was asked to join in the celebrations of the 25th anniversary of the
Centre Znteruniversitaire
de Droit Compark;
and I am delighted that this occasion (as well as a conference that
I attended at the University of Ghent in March
1989)
has provided me with the opportunity
to review matters and elaborate my thoughts further on this subject.
My topic, seven years ago, was
l’enseignement
du
droit compark
sous
1
’kclairage de
la
jurisprudence4
and my intention then was to discourage comparatists from teaching
the subject or, rather, the method, by resorting to wide generalisations about other systems.
Instead,
I
argued, relatively narrow topics should be used as starting points and from there
one could gradually introduce one’s students to the related branch of the law, the different
history, which accounts for the different concepts and techniques used to solve the problem
in question and the impact that the procedural and general legal background might have
on the final outcome.
An
illustration not mentioned in the earlier paper but which, I believe,
clearly makes my point can be found in the law of privacy or, as the Germans call it,
the general right to one’s personality
(Allgemeinepersonlichkeitsrecht).
A good selection
of cases from this area of the law thus can be used to show how:
(a) the courts molded a new protected interest;
(b) how they created remedies unthought of
-
indeed expressly prohibited
-
by the
Civil Code, thus giving the teacher a chance to consider how convincing are
traditional views of the legislative powers of courts in the civil law countries;
(c) how all this occurred because the constitutional background forced the hand of the
civil judge;
(d) how casuistic the case law has turned out to be;
(e) how fine a balancing act the judges have had to perform in reconciling the competing
value of privacy and free speech and
so
on.
Indeed, one could go on and show how German jurists overcame the problems posed by
the amorphous nature of the concept of privacy by entrusting its delineation to their judges,
proceeding on a case-to-case basis. Surprisingly, this very common law technique has,
so
far, been shunned by our legal system, while at the same time the Press has
yet
again
succeeded in preventing the enactment of a privacy bill. We were thus all recently exposed
to the rather unedifying sight of one part of a multi-newspaper organisation invoking
libertarian views against a proposed bill on privacy
so
that the less reputable section of
the same empire could go on making money by prying into the lives of often innocent
individuals!
All that
I
have indicated above can be done with the cases acting as a spring-board;
and though the end-aim of the operation is to learn by describing what is foreign and then
comparing it with what is known, the height of the jump
-
if I may continue the swimming
pool metaphor
-
is left to each individual. For example, when discussing the
Schacht
case,5 I enjoy telling my students something about that remarkable man and the chaotic
economic conditions he tackled
so
successfully between the two Wars; economic conditions,
incidentally, which provided the German courts with an excuse for yet another of their
most daring feats
-
the development of the case law that was to find in para 242 BGB
a justification vague and tenuous at best.
Foreign case law as a means
of
correcting or improving national law
In my earlier article I compared
Dutton
v
Bognor Regis UDC6
with the German law
4
5
6
119721
1
QB
373.
It
was published in the
Revue de la Recherche Juridique
-
Droit Prospectif
1985, 866
et seq..
The case is translated in Markesinis,
The German
Law
of
Torts:
A
Comparative Introduction
(2nd ed.
1990)
and
is
accompanied
by
extensive notes.
2
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