Prof. Uwe Kischel tells us about his recently published book, Comparative Law.
Uwe Kischel’s comprehensive treatise on comparative law offers a critical introduction to the central tenets of comparative legal scholarship. The first part of the book is dedicated to general aspects of comparative law. The controversial question of methods, in particular, is addressed by explaining and discussing different approaches, and by developing a contextual approach that seeks to engage with real-world issues and takes a practical perspective on contemporary comparative legal scholarship. The second part of the book offers a detailed treatment of the major legal contexts across the globe, including common law, civil law systems (based on Germany and France, and extended to Eastern Europe, Scandinavia, and Latin America, among others), the African context (with an emphasis on customary law), different contexts in Asia, Islamic law and law in Islamic countries (plus a brief treatment of Jewish law and canon law), and transnational contexts (public international law, European Union law, and lex mercatoria). The book offers a coherent treatment of global legal systems that aims not only to describe their varying norms and legal institutions but to propose a better way of seeking to understand how the overall context of legal systems influences legal thinking and legal practice.
What inspired you to take up this project?
I have always been fascinated by cultural differences, and how they influence – and often hamper – our mutual understanding. My studies abroad, and especially at Yale Law School, have shown me how deeply differences in legal, as well as general, culture influence our understanding of foreign law. This, I believe, must then be the basis for successful work in comparative law: to try and understand the otherness, to get a feel for foreign legal contexts. But then, it is extremely difficult to achieve this aim in view of the diversity of legal contexts in the world. For this reason, I thought I might try to write a book that would help anybody interested in comparative law issues to better understand how lawyers in different legal systems work and think, how their law and legal institutions are structured, in short: how it feels. A word on methods was inevitable, because it was clear from the beginning that my contextual approach – hermeneutical and practice-oriented as it is – would be challenged by many much more theoretically-minded scholars. In the end, the book turned out as a treatise which intends to provide multiple points of entry and to serve as a constant companion to scholars, practitioners, and students, to guide them through comparative law and the, often bewildering, panoply of legal orders in the world. Of course, I wanted to write not only from a private law perspective, but also to include public, and in particular constitutional, law, which is often quite essential to comparative legal understanding. Finally, a main overall goal in all this has always been to write clearly, and make this work interesting to read – not only, but especially, in the methodological part.
Whose work was influential on you throughout the course of the project?
Well, I suppose that this question is meant to elucidate the intellectual background of my book, and my way of thinking. In a nutshell (and without name-dropping), my contextual approach is based on the basic insights of traditional comparative law, specifically of the functional method, while trying however to evade some of its misunderstandings and pitfalls. I try to actively defend this contextual method against critics who implicitly or explicitly try to delegitimise mainstream comparative law by deploring its lack of "theory", by insisting on the need to overcome the common-sense approach, and by proposing, as a cure, full adoption of the methodological insights of social sciences. The positive methodological answer which I offer is hermeneutics, which asks us to try and work our way into a foreign legal system, to get a feel for its style, or atmosphere, and by doing so try to understand it in and of itself. This, I propose, is not only what comparative lawyers should aspire to do (despite all the inherent difficulties), but also what, in the end, many of them have aspired to do for many years. In this sense, contextual comparative law is a highly practical project.
So, if your aim is to do comparative law, and to do it well, this is the book for you. If however you already have your mind firmly fixed on theorising along the lines of postmodernism, critical legal studies, law-and-movements, etcetera, you might find the book a very nice example of what you dislike; but still very helpful in understanding your opponents – and, most of all, in your everyday work.
What challenges did you face in writing the book?
The real challenge simply was getting it done – to concentrate for a very long time on one project without giving up. What kept me going was probably the fact that it never once became boring. Quite to the contrary, I remained completely fascinated by every single aspect about which I wrote, and by the enormous amounts of literature that needed to be read. For certain parts of the book finding the literature and getting a hold of it was truly arduous. After all, I did not only write about the "usual suspects" in terms of countries or regions. Languages were a constant challenge, and the need to restrict myself to the handful of languages which I can read remains a constant source of frustration. For some important countries, such as in Asia, much time, and sometimes background information, was needed to sift through the respective foreign language sources to determine which authors were the real insiders or had achieved a truly informed view. Had I known at the start how much time, and how many pages it would take to get at least somewhat close to my objectives, I might never have begun.
A completely different challenge was the translation of the book from German into English. My aspiration was a book that read well – not like a translation, but like an original creation. I was lucky to find an extremely gifted and cooperative translator who shared the same vision – Andrew Hammel – a fully trained American lawyer with substantial legal teaching experience in Germany. The translation turned out to be a constant process of exchange and discussion between Andrew and me on the entire range of questions that a translation entails, a true work of cooperation, but also quite exhausting.
What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?
With reference to constitutional law, I would like to see more comparative law thinking in international discussions. In other words, it may be helpful to regard the solutions offered to legal problems in different countries not so much as simply different ideas on offer, but more as a product of the differences in legal, or general, culture which must be understood and evaluated in relation to these cultures. In short, I would propose a more contextual point of view. I hope that this book will make a small contribution to fostering this attitude.
In the general academic discourse on comparative law, I hope that the book will help the vast majority of comparative lawyers in the world who form part of that loosely-defined group of "mainstream" comparativists to continue their good work. I hope the book will help them to defend their approach against its self-styled "progressive" critics, and that it will bolster their self-confidence as representatives of an advanced and immensely practical method which remains the future of comparative law.
Most of all, however, this book is meant to be practical, something you keep on a shelf close to your desk to consult whenever you feel the need. It not only addresses advanced students who seek an introduction to comparative law or a deeper understanding of certain of its aspects, but at least as much experts and practitioners, for whom it is meant to offer new insights, structures, and opinions. It can be read from the first to the last page, but just as well be used as a manual or reference for specific topics. From the reactions to the German edition, I know that readers take advantage of it in many different ways: the law professor who wants to prepare a course on comparative law, the doctoral student who wants to know how to approach the comparative side of his topic or a certain foreign legal order, the judge who is invited to give a speech in a country he knows little about – in all these situations, and many more, this book is meant to help. But if you want to know my favourite story of how the book is used: it is when readers tell me they have actually read it for fun.
Oh my, does it ever stop?