Merging Comparative Law and Legal History? Thesis and Scepticism in Finland

Jaakko Husa

Finnish Committee for Comparative Law and University of Helsinki

The Finnish Committee for Comparative Law held a meeting on 19 March 2019 at the Helsinki University’s Law Faculty. The Committee is a registered non-profit association that was established in 1956. The Committee is one of the National Committees of the International Academy of Comparative Law and the National Committee of the International Association of Legal Science. Traditionally the annual meeting begins with an invited lecture that concerns comparative law broadly understood. This year’s lecture was given by Professor Heikki Pihlajamäki (Helsinki University).

Pihlajamäki’s expertise is in the field of Comparative Legal History. He has published on the history of evidence law and lay judges, police law, and different aspects of the history of criminal law. His interests expand also towards the history of commercial law and the theory of comparative legal history. Comparative aspects have been important throughout his career, geographically his scholarship comprises not only Scandinavia and Europe, but also the US and Latin America. Pihlajamäki is one of the founders and the Articles Editor of the journal Comparative Legal History. He is also one of the editors of the Oxford Handbook of European Legal History (2018).

The title of the presentation was ‘Comparative Law and Legal History – What Next’. It was based on an article that was published recently in the American Journal of Comparative Law ‘Merging Comparative Law and Legal History: Towards an Integrated Discipline’.

The presentation caused lively discussion because of Pihlamäki’s key that legal history and comparative law ought to merge into one discipline. Although most of those attending agreed generally with Pihlajamäki’s points, his conclusion concerning the unavoidable need to merge these disciplines together was met with scepticism and several counter-arguments were presented.

According to Pihlajamäki, legal history and comparative law are both products of the same period, the late nineteenth century, when they were formed as the fruit of the rising positivist legal scholarship. Importantly, he claimed, they are both outcomes of national legal positivism, both in Europe and on the other side of the Atlantic. For legal historians this meant that their task was to produce the nationalistic narrative, explaining how history had led national States.

Comparative law, in turn, started early in the nineteenth century as a response to practical legislative needs (so-called ‘comparative legislation’, ‘législation comparée’). Moreover, following the traditions of Paris in 1900 and the Hague in 1932, comparative lawyers optimistically expected that comparative scholarship would unify and civilize the world’s legal orders. However, after World War II, mainstream comparative law lost its hope in civilising the world. Later, partially because of this lost noble cause, comparative study of law transformed into a “country and western” style of scholarship (a term coined by William Twining). This tradition ended up being a futile exercise because the focus was solely on statutory and judicial rules of State legal systems.

Pihlajamäki argued that the only reasonable way for both disciplines to survive is to abandon the intellectual package of the 19th and 20th centuries and merge them together. According to this train of thought the practical problem is that the twin disciplines are also social communities. In other words, most scholars identify themselves as “comparatists” or “legal historians.” From there it follows that the new combined discipline would need to do away with traditional ways of doing scholarship in both disciplines. In short, they should merge.

This message means in practice that national legal history and “country and western” style of comparative law scholarship would need to change and the comparative approach should be taken more seriously by placing it at the heart of what legal historians and comparative lawyers do. In Pihlajamäki’s view the merging would force legal historians to be more open to the world outside national boundaries and, moreover, it would also replace the kind of comparative law that is made without reference to the historical paths that have led to the present state of law.

Although the audience greatly enjoyed the presentation and agreed with many of the points it raised, it is safe to say that many felt suspicious about the suggested need to merge these two disciplines together despite these being “twin disciplines”. In conclusion, unlike Pihlajamäki the audience felt that even though the overlapping areas are significant, these two fields also have their own theoretical and methodological issues that should not necessarily merge.

Jaakko Husa is the President of the Finnish Committee for Comparative Law and a Professor of Law and Globalisation in the Faculty of Law at the University of Helsinki.

Suggested citation: Jaakko Husa, ‘Merging Comparative Law and Legal History? Thesis and Scepticism in Finland’ IACL-AIDC Blog (27 March 2019) https://blog-iacl-aidc.org/2019-posts/2019/3/26/merging-comparative-law-and-legal-history-thesis-and-scepticism-in-finland