Legality and Legitimacy

Published date01 May 2005
DOIhttp://doi.org/10.1111/j.1468-2230.2005.549_10.x
Date01 May 2005
AuthorLasse Thomassen
REVIEWS
Basil Markesinis,Comparative Law in the Courtroom and Classroom: The
Story of the Last Thirty Years,Oxford: Hart Publishing, 2003, xxviiþ267pp,
hb d25.00.
Comparative law is not much taught in British l aw faculties (nor, for that matter in
many law schools throughout the world). Nor is comparative law frequently cited
in the legal literature,or used in the processof law reform. BasilMarkesinishas tried
to change this for most of his career. This latest book contains a message for all
comparative lawyers: if the subject is to developand even survive in the 21
st
century,
then comparative law must be taught in the classrooms and comparative analysis
must ¢nd its way intothe courtrooms. Markesinis places the blame for the present
situation largely at the door of academics engaged in comparative law who, he
claims, fail to make their work attractive to students and relevant to practitioners.
It is not obvious why comparative law should be so unin£uential ^ after all, it
might be expected to blossom nowadays, at least within the European Union.
Markesinis does delve deeper into his subjects pathology. This leads him to the
work and legacy of comparative lawyers of previous generations. Although he is
convinced that the work undertaken by these great names was of import and
quality, he also argues that these past ‘heroes’ contributed inadvertently to the
decline of the subject, for they left behind neither a clear comparative methodol-
ogy nor solid de¢ning work which would allow future generations to retrace
their steps and understand the way theiranalyses were arrived at. There were thus
few signposts forlater comparative lawyers e ngaged in similar research, and com-
parative law has wasted considerable energy on re-inventingitself again and again.
So what to do? Markesinis proposes a completely new sc heme forcomparative
law which is intended togain it the recognition itdeserves.The scheme involves
three steps:identifying a targetaudience, adopting a systematic strategy and estab-
lishing a speci¢c methodology. As for the question of audience, Markesinis fol-
lowsRabel in thinking that comparative law will only make headway if it attracts
the attention of practitioners. Rabel’s work involved making available to practi-
tioners the comparative material which could be fundamental when wrangling
with di⁄cult issues that a speci¢c area of law is encountering.While Rabel him-
self wrote largely for the bene¢t of practitioners, Markesinis urges comparative
lawyers to remember that judges are the end users and that materials should be
shaped with them in mind. Answering the needs of practitioners and judges
determines not only the type of materials which are produced, but ultimately
the type of comparative law thatone will be engagedi n. For instance, Markesinis
argues that the attraction of modernist or post-modernist analysis must be
avoided: too often these writings are neither accessible nor useful to judges or
practitioners. Similarly, reference should be made to legal systems with in-
trinsic interest for judges and practitioners, even if this promotes a certain
euro-centricity. He also suggests that comparative laws link with legal history,
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(3)MLR 495^522
especially Roman law, should be severed, as it does not really bene¢t either sub-
ject any longer.
As for methodology, Markesinis chooses to analyse and compare speci¢c ques-
tions of law as they arise or would arise in the course of litigation.This, too, will
help to service the audience of practitioners and judges. A narrow ambit of com-
parison is envisaged, as this will allow close and detailed analysis, but it will also
make it possible to set the issue within its historical, social and economic context.
In fact,contextual analysis is not only importantbut paramount when advocating
the use of foreign solutions to practitioners or judges, for it alerts one to the pos-
sibility that a solution is adapted to a particular legal system. Markesinis also
points out that the comparative work does not have to stop at the narrow and
detailed stage; the analysis might be widened to re£ect larger trends in the legal
system under scrutiny. Such broader analysis shifts the emphasis away from prac-
titioners, allowing the collation of teaching material and providing considerable
opportunitie s for academic research
Markesinis provides an example of his methodology by compari ng the Fre nch
and English case law concerned with the liability of public bodies. Although at
¢rst it is di⁄cult to see much resemblance between the law in the two countries,
Markesinis demonstrates that the policy arguments that underpin the cases are
similar. This similarity transcends the apparent conceptual di¡erences and allows
a detailed comparison to take place. But Markesinis also draws attention to the
fact that that the political doctrines underlying the liability of public bodies are
poles apartin each legal system.This, then, highlights the existence in compara-
tive research of contradicting layers of similarity and dissimilarity; it is this com-
plex reality of di¡ering levels of analysis which can make comparative research
really valuable. Markesinisdoes warn, though, thatmaterial aimedat practitioners
should avoid such complexity and be conducted at a level of analysis that can be
used directly.
Only time will tell whether Markesinis’s scheme is taken up by academics.
Some scholars will ¢nd his vision of comparative law too narrow and conse-
quently not worth undertaki ng. Still, if comparative law is to receive the attention
it deserves, a change needs tobe engineered and I agree with Markesinis that the
time is ripe for this subject. Futhermore, Markesinis does not ban out-right cer-
tain types of comparative projects (even though he makes co ntroversial statements
regarding post-modern research). In fact, he shows the possible link between
comparative work for the judiciary and comparative work for teaching and aca-
demic research: one can be used to build on the other. In this day and age, aca-
demics tend to concentrate on projects that will be useful for the purpose of the
RAE. Adopting the strategyof Markesinis and writing for a multiplicityof audi-
ences is likely to meanmultiple writings.In practice,those academics who do not
object in principle to the proposed strategy might ¢nd this di⁄cult, even if it is
more rewarding.
Sophie Boyron
n
n
Universityof Birmingham.
Reviews
496 rThe Modern LawReview Limited 2005

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