Transnationalizing Comparative Law
| DOI | 10.1177/1023263X1602300208 |
| Date | 01 April 2016 |
| Published date | 01 April 2016 |
| Author | Ralf Michaels |
| Subject Matter | Legal Debate |
352 23 MJ 2 (2016)
TR ANSNATIONALIZING COMPAR ATIVE LAW
R M*
§1. REPORTS ON THE DEATH OF COMPARATIVE LAW
AREGREATLY EXAGGERATED
Some 20 years ago, one of the top law schools in t he United States considered ending
all its courses i n comparative and foreign law. is was done in t he expectation that the
then-fashionable end of history would also mean the end of diversity of legal systems
and the global tr iumph of US law. Students of the future would merely need to learn ‘law’
(which me ant US law) and be able to pra ctice any where in t he world. Ne edless to say, the
prediction turned out to be premature. e school is now, like ever y other US law school,
advertising its specia l competence in comparative law for its curriculum and for law yers.
We should remember that reports on the death of comparative law, as suggested by
the editors of this journa l, are always, to paraphrase Mark Twain, greatly exaggerated .1
Comparative law does not die so easi ly. Nor, however, does it remain unchanged. Rather,
and unsurprisingly, comparative law is constant ly evolving, in imperfect para llel with
the development of law, and society, at large. Lawrence Rosen once suggested ‘we may
have to renounce comparative law as we have at times known it in order to save it’.2 But
the truth is t hat comparative law will always exist whether we (who is that anyway?)
renounce it or not. If comparative lawyers of old refuse to go along with changes, it
merely means that others will do it for them – grandiose economists who treat laws as
mere data points for statistical analysis; ambitious young US scholars of constitutional
* Arthur La rson Professor of Law, Duke Univer sity.
1 M. Siems, ‘ e end of comparative law’, 2 Journa l of Comparative Law (2007), p.133–150; see al ready
M. Reimann, ‘ e end of comparative law as a n autonomous subject’, 11 Tul. Eur. & Civ. L.F. (1996 ),
p.49. See also P. Zumbansen, ‘Transnational Comparisons: eory and P ractice of Comparative Law
as a Critique of Transnat ional Governance’, in M. Ada ms and J. Bomho (eds.), Practice and eory in
Comparative Law (CUP, 2012), p.186, 187 (‘comparative law is not dead – or is it?’). Siems h imself does
not appear to believe i n his own suggestion of t he eld’s death; he has recently publi shed an important
treatise on th e subject and is now, indeed, specu lating about the far f uture of comparative law. See M.
Siems, Comparative Law (CUP, 2014); M. Siems, ‘Comparati ve Law in the 22nd Centur y’, 23 Maastricht
Journal of Europea n and Comparative Law (2016), p.359.
2 L. Rosen, ‘Beyond Comp are’, in P. Legrand and R. Mund ay (eds.), Comparative Legal Studie s: Traditions
and Transitions (CUP, 2003), p.493, 510.
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