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Guidebook to a Foreign Land

Guidebook to a Foreign Land Abstract Comparative law, a critic might point out, is a foreign country. A kind of “land that time forgot,” comparative law belongs to a more innocent time before cheap air travel and foreign legal qualifications demystified transnational legal practice for many lawyers.1 Those inhabiting this isolated kingdom are oddly monocultural, and their earnest fascination with the foreign seems as outdated as their fixation with “comparison,” a method that was last modish in the nineteenth century.2 Professor Günter Frankenberg’s important new book, Comparative Law as Critique,3 is a critical guidebook to this charming but parochial land. Written by a long-time observer of comparative law, the book maps mainstream discourses in comparative legal scholarship, subjecting them to the same Orientalizing gaze that comparative law has traditionally cast on non-Western legal systems. The book also provides a thought-provoking meta-discussion on critical scholarship,4 a topical section on Muslim veiling,5 and essays on human rights and access to justice.6 I. Mapping Comparative Law Frankenberg describes his project explicitly as critique, placing his work in the tradition of the Critical Legal Studies movement and its contemporary offspring.7 In substantive terms, Frankenberg’s approach is best understood in contrast with its “other,” the so-called mainstream scholarship. Mainstream scholarship takes many different forms, but for Frankenberg the term essentially signifies the unreflective and unquestioned acceptance of orthodox research frameworks. He argues that mainstream scholarship in comparative law is epitomized, in particular, by functionalism and the quest to find best solutions to social problems, which are often understood “from the vantage point of the West.”8 In contrast to mainstream scholarship, critical comparative law aims to “confront mainstream’s authority, question its certainties, methods and categories [and] uncover its ethics and politics.”9 A key device in Frankenberg’s project to unmask mainstream comparative law is “the grid.” The grid is a four-field matrix, which builds on two axes. The horizontal axis represents the never-ending pull in legal comparison between detachment from and commitment to the foreign. Detachment enables the comparatist to play the role of a disinterested observer, whereas commitment refers to the comparatist’s respect for the foreign. The vertical axis represents the pull between similarity and difference. Similarity stands for the process of assimilating the foreign to the universal or general, whereas difference refers to the opposite goal of maintaining the foreign as dissimilar. Frankenberg presents these two axes as challenges for comparison rather than evidence of the futility of comparative law. Frankenberg agrees that it is a worthwhile effort to “learn to navigate the divide between the foreign and the familiar.”10 This may be possible (Frankenberg guarantees nothing) if the comparatist learns to distance the foreign—that is, to give up one’s settled knowledge about the law—without turning it into an “other,” which reflects one’s prejudices about the foreign. The comparatist must also learn the skill of differencing, that is, seeing one’s own point of view in particularist (rather than universalist) terms. The four corners of the grid produce a map of the main tracks of legal comparison. First, Frankenberg describes how the emphasis on detachment and similarity brings about the current mainstream approach to comparative law. This approach, visible in functionalism and comparative law taxonomies, is undisturbed by claims of ethnocentrism and other difficulties illustrated by Frankenberg’s grid. Instead of methodological introspection, this track of comparative law aims to establish cognitive control over foreign law, for instance in order to effectuate legal harmonization. Second, similarity combined with commitment (rather than detachment) leads to a universalist quest for globally shared legal experiences. The universalist approach is apparent in efforts to construct a universal world law and in the more modest attempts to broaden law students’ horizons through courses on comparative law. Frankenberg explains that these two projects—cognitive control and universalism—form the bulk of comparative law scholarship. A more marginal approach to comparative law, according to Frankenberg, combines commitment with a sentimentalist appreciation for difference. This approach thrives on romanticized difference. Unlike the first two tracks of legal comparison, it is connected to no particular political project (other than cultural conservation). Finally, an emphasis on detachment and difference yields paralyzed skepticism about legal comparison. As Frankenberg insightfully points out, skeptics operating within the field of comparative law have dealt with these methodological difficulties simply by refusing to engage with non-Western perspectives.11 II. Critical Comparisons As a structuralist argumentative strategy,12 the grid seeks to reveal forces that are repressed in mainstream accounts of comparative law. The grid presents the comparatist as being bound to either overemphasize or underemphasize elements of legal comparison. For instance, a comparatist is always either too detached from the foreign or too committed to it—there is no getting it just right. The grid is particularly useful against difference-repressing functionalism, which bears the brunt of Frankenberg’s critique. Frankenberg walks the reader through a set of strikingly unreflective citations from functionalist comparative lawyers. Legal scholars touring the field of comparative law will marvel at these exhibits. While Comparative Law as Critique delivers a broadside against the platitudes of mainstream comparative law, the book is written by a participant-observer, who is not looking to emigrate to greener pastures. Uncharacteristically for a critical scholar, Frankenberg is troubled by the lack of dialogue between mainstream comparative scholars and their critics.13 Instead of taking the next flight out and moving on to the big bad world of (critical) international law and legal theory, Frankenberg is invested in demonstrating to other comparative lawyers the “comparative advantage of critical discourse.”14 Perhaps as a consequence, Frankenberg is a relatively generous critic by the standards of critical legal scholarship: he relates to repudiations of critical scholarship in impeccably collegial terms. Comparative Law as Critique is also politically careful in the sense that it advances no specific political agenda, which could be unpalatable for mainstream comparatists. “In comparative law,” Frankenberg explains, “one would not seriously expect a critical approach to show class consciousness or revolutionary spirit.”15 As Frankenberg points out, critical scholarship is performative (as are book reviews).16 Instead of advocating leftist politics, Frankenberg joins the comparatists’ shared effort to “deal with and understand foreign laws and foreign legal cultures.”17 In pursuit of this objective, critical comparative law shares many methodological tools with mainstream scholarship. Although Frankenberg has reservations about reductionism and structuralism in comparative law, he makes good use of the (reductionist and structuralist) grid when he describes various court decisions on Muslim veiling. Frankenberg demonstrates that an emphasis on detachment and similarity has caused jurists to perceive a veiled woman as a threat whose rights have to be balanced against the interests of the state.18 The universalist approach, in contrast, is apparent in the framing of Muslim veiling as a human rights issue and in seeing the veiled woman as a victim.19 Similarly, while Frankenberg is critical of thin comparisons, which merely scan “the surface of textual sources,”20 he provides observations on the textual similarity between the Chinese constitution, the American Declaration of Independence, and the Universal Declaration of Human Rights. All these documents, Frankenberg points out, have an educational purpose.21 It also appears that the “West” (which Frankenberg marks as a contested terrain) is an important category for both mainstream and critical comparative law, though for different reasons. Frankenberg uses this concept in order to “deconstruct Anglo-Eurocentrism in comparative law and provincialize Western law.”22 He criticizes the tendency of comparative historical studies to “invariably incorporate the Western perspective and construct the world from there.”23 Frankenberg also contends that a strand of mainstream comparative law “operates within the framework of . . . the binary distinction between relevant or principal and . . . ‘not so relevant.’”24 He points out that only a fraction of René David and John Brierley’s text, Major Legal Systems in the World Today, is dedicated to “other conceptions” of law, such as the “laws of India, the Far East, Africa and Malagasy.”25 These are astute observations. However, even without counting pages in Frankenberg’s book, it does seem that the relevant or principal objects of his critique, as well as its audience, are situated in the West. The practice of distancing, for instance, is meant to strike a “balance between going native and staying Western.”26 Negating Eurocentrism may end up affirming it. III. Before You Go The book’s focus on the Western experience of comparative law makes sense, given that many culprits of Eurocentrism are located in the West. Increased self-understanding may start a process of critical dialogue, as Frankenberg points out.27 Nevertheless, one does wonder whether comparative law’s encounter with the foreign and, in particular, the non-West (with or without scare quotes), really has to be so charged. Public international lawyers, legal theorists, and indeed comparative lawyers (as individual members of their discipline) have had fruitful interactions across perceived cultural boundaries. Might comparative law (as a collective discipline) likewise break free from the anxiety-inducing heuristic cycles identified by Frankenberg? There is, in fact, a way out, and this path reveals itself in Frankenberg’s book. Comparative Law as Critique demonstrates that decisions about what should be approached through the foreign/familiar dichotomy and what can be handled through the shared imagination of, say, public international law and legal theory are, at the end of the day, strategic choices. The first four chapters of the book, partly described above, belong to the snowcapped kingdom of comparative law. These chapters are particularly effective as critiques of the homogenizing tenets in comparative law. The comparative section is, however, followed by sections on Muslim veiling, human rights, and access to justice. These chapters include some comparative remarks, but they move beyond the methodological dilemmas highlighted in the beginning of the book. The analysis of Muslim veiling deploys the grid to what is essentially a global discourse rather than a series of national discourses.28 The chapter on human rights discusses different human rights narratives without locating these narratives in any specific jurisdiction.29 Frankenberg points out that some human rights narratives offer justifications for incidents of injustice, whereas others normalize judicial power.30 These are thought-provoking observations—and they are far removed from the idyllic realm of comparative law. The section on access to justice provides a helpful discussion in explicitly global terms on the elusiveness of justice, again without confining its views to a set of specific jurisdictions.31 Frankenberg’s observations on Muslim veiling, human rights, and justice are not comparative in any traditional sense—yet they resonate globally. In conclusion, Comparative Law as Critique compels comparative lawyers to reflect hard on their methods, politics, and ethics. Why even compare? Just as importantly, the book demonstrates that in some instances comparative sensibilities misdirect scholarly inquiries. It would be a shame if the project to establish and bridge gaps between the “familiar” and the “foreign” dissuaded legal scholars from engaging with debates that are, arguably, globally (and locally) more relevant than legal comparisons and their critiques. This is, I think, Frankenberg’s final lesson to his compatriots: comparative lawyers need to engage in debates by meeting “other laws and legal practices at eye-level.”32 Prospective visitors to the land of comparative law should read Frankenberg’s book before committing to anything. Footnotes 1. For a critique that comparative law has missed the boat on globalization, see Mathias Reimann, Beyond National Systems: A Comparative Law for the International Age, 75 Tul. L. Rev. 1103, 1114 (2000). For recent scholarship addressing this problem, see Mathias Siems, Comparative Law 222–24 (2014). 2. Annelise Riles, Introduction to Rethinking the Masters of Comparative Law 1, 9 (Annalise Riles ed., 2001). 3. Günter Frankenberg, Comparative Law as Critique (2016). 4. Id. ch. 2. 5. Id. ch. 5. 6. Id. chs. 6–7. 7. Id. at xi, 21, 26–27. 8. Id. at 15. 9. Id. at 34. 10. Id. at 75. 11. Id. at 110. 12. For uses of structuralism in critical theory, see Duncan Kennedy, A Semiotics of Critique, 22 Cardozo L. Rev. 1147, 1169–72 (2001). 13. Frankenberg, supra note 3, at 20–21. 14. Id. at 21. 15. Id. at 32. 16. Id. at 24–31. 17. Id. at ix. 18. Id. at 118–19. 19. Id. at 137–39. 20. Id. at 230. 21. Id. at 200–01. 22. Id. at x. 23. Id. at 97. 24. Id. at 87. 25. Id. at 87–88. 26. Id. at 81 (emphasis added). 27. Id. at 230. 28. Id. ch. 5. 29. Id. ch. 6. 30. Id. at 174–76. 31. Id. at 210–11. 32. Id. at 232. © The Author(s) [2018]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

Guidebook to a Foreign Land

American Journal of Comparative Law , Volume 66 (2) – Jun 1, 2018
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Oxford University Press
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© The Author(s) [2018]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
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0002-919X
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2326-9197
DOI
10.1093/ajcl/avy010
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Abstract

Abstract Comparative law, a critic might point out, is a foreign country. A kind of “land that time forgot,” comparative law belongs to a more innocent time before cheap air travel and foreign legal qualifications demystified transnational legal practice for many lawyers.1 Those inhabiting this isolated kingdom are oddly monocultural, and their earnest fascination with the foreign seems as outdated as their fixation with “comparison,” a method that was last modish in the nineteenth century.2 Professor Günter Frankenberg’s important new book, Comparative Law as Critique,3 is a critical guidebook to this charming but parochial land. Written by a long-time observer of comparative law, the book maps mainstream discourses in comparative legal scholarship, subjecting them to the same Orientalizing gaze that comparative law has traditionally cast on non-Western legal systems. The book also provides a thought-provoking meta-discussion on critical scholarship,4 a topical section on Muslim veiling,5 and essays on human rights and access to justice.6 I. Mapping Comparative Law Frankenberg describes his project explicitly as critique, placing his work in the tradition of the Critical Legal Studies movement and its contemporary offspring.7 In substantive terms, Frankenberg’s approach is best understood in contrast with its “other,” the so-called mainstream scholarship. Mainstream scholarship takes many different forms, but for Frankenberg the term essentially signifies the unreflective and unquestioned acceptance of orthodox research frameworks. He argues that mainstream scholarship in comparative law is epitomized, in particular, by functionalism and the quest to find best solutions to social problems, which are often understood “from the vantage point of the West.”8 In contrast to mainstream scholarship, critical comparative law aims to “confront mainstream’s authority, question its certainties, methods and categories [and] uncover its ethics and politics.”9 A key device in Frankenberg’s project to unmask mainstream comparative law is “the grid.” The grid is a four-field matrix, which builds on two axes. The horizontal axis represents the never-ending pull in legal comparison between detachment from and commitment to the foreign. Detachment enables the comparatist to play the role of a disinterested observer, whereas commitment refers to the comparatist’s respect for the foreign. The vertical axis represents the pull between similarity and difference. Similarity stands for the process of assimilating the foreign to the universal or general, whereas difference refers to the opposite goal of maintaining the foreign as dissimilar. Frankenberg presents these two axes as challenges for comparison rather than evidence of the futility of comparative law. Frankenberg agrees that it is a worthwhile effort to “learn to navigate the divide between the foreign and the familiar.”10 This may be possible (Frankenberg guarantees nothing) if the comparatist learns to distance the foreign—that is, to give up one’s settled knowledge about the law—without turning it into an “other,” which reflects one’s prejudices about the foreign. The comparatist must also learn the skill of differencing, that is, seeing one’s own point of view in particularist (rather than universalist) terms. The four corners of the grid produce a map of the main tracks of legal comparison. First, Frankenberg describes how the emphasis on detachment and similarity brings about the current mainstream approach to comparative law. This approach, visible in functionalism and comparative law taxonomies, is undisturbed by claims of ethnocentrism and other difficulties illustrated by Frankenberg’s grid. Instead of methodological introspection, this track of comparative law aims to establish cognitive control over foreign law, for instance in order to effectuate legal harmonization. Second, similarity combined with commitment (rather than detachment) leads to a universalist quest for globally shared legal experiences. The universalist approach is apparent in efforts to construct a universal world law and in the more modest attempts to broaden law students’ horizons through courses on comparative law. Frankenberg explains that these two projects—cognitive control and universalism—form the bulk of comparative law scholarship. A more marginal approach to comparative law, according to Frankenberg, combines commitment with a sentimentalist appreciation for difference. This approach thrives on romanticized difference. Unlike the first two tracks of legal comparison, it is connected to no particular political project (other than cultural conservation). Finally, an emphasis on detachment and difference yields paralyzed skepticism about legal comparison. As Frankenberg insightfully points out, skeptics operating within the field of comparative law have dealt with these methodological difficulties simply by refusing to engage with non-Western perspectives.11 II. Critical Comparisons As a structuralist argumentative strategy,12 the grid seeks to reveal forces that are repressed in mainstream accounts of comparative law. The grid presents the comparatist as being bound to either overemphasize or underemphasize elements of legal comparison. For instance, a comparatist is always either too detached from the foreign or too committed to it—there is no getting it just right. The grid is particularly useful against difference-repressing functionalism, which bears the brunt of Frankenberg’s critique. Frankenberg walks the reader through a set of strikingly unreflective citations from functionalist comparative lawyers. Legal scholars touring the field of comparative law will marvel at these exhibits. While Comparative Law as Critique delivers a broadside against the platitudes of mainstream comparative law, the book is written by a participant-observer, who is not looking to emigrate to greener pastures. Uncharacteristically for a critical scholar, Frankenberg is troubled by the lack of dialogue between mainstream comparative scholars and their critics.13 Instead of taking the next flight out and moving on to the big bad world of (critical) international law and legal theory, Frankenberg is invested in demonstrating to other comparative lawyers the “comparative advantage of critical discourse.”14 Perhaps as a consequence, Frankenberg is a relatively generous critic by the standards of critical legal scholarship: he relates to repudiations of critical scholarship in impeccably collegial terms. Comparative Law as Critique is also politically careful in the sense that it advances no specific political agenda, which could be unpalatable for mainstream comparatists. “In comparative law,” Frankenberg explains, “one would not seriously expect a critical approach to show class consciousness or revolutionary spirit.”15 As Frankenberg points out, critical scholarship is performative (as are book reviews).16 Instead of advocating leftist politics, Frankenberg joins the comparatists’ shared effort to “deal with and understand foreign laws and foreign legal cultures.”17 In pursuit of this objective, critical comparative law shares many methodological tools with mainstream scholarship. Although Frankenberg has reservations about reductionism and structuralism in comparative law, he makes good use of the (reductionist and structuralist) grid when he describes various court decisions on Muslim veiling. Frankenberg demonstrates that an emphasis on detachment and similarity has caused jurists to perceive a veiled woman as a threat whose rights have to be balanced against the interests of the state.18 The universalist approach, in contrast, is apparent in the framing of Muslim veiling as a human rights issue and in seeing the veiled woman as a victim.19 Similarly, while Frankenberg is critical of thin comparisons, which merely scan “the surface of textual sources,”20 he provides observations on the textual similarity between the Chinese constitution, the American Declaration of Independence, and the Universal Declaration of Human Rights. All these documents, Frankenberg points out, have an educational purpose.21 It also appears that the “West” (which Frankenberg marks as a contested terrain) is an important category for both mainstream and critical comparative law, though for different reasons. Frankenberg uses this concept in order to “deconstruct Anglo-Eurocentrism in comparative law and provincialize Western law.”22 He criticizes the tendency of comparative historical studies to “invariably incorporate the Western perspective and construct the world from there.”23 Frankenberg also contends that a strand of mainstream comparative law “operates within the framework of . . . the binary distinction between relevant or principal and . . . ‘not so relevant.’”24 He points out that only a fraction of René David and John Brierley’s text, Major Legal Systems in the World Today, is dedicated to “other conceptions” of law, such as the “laws of India, the Far East, Africa and Malagasy.”25 These are astute observations. However, even without counting pages in Frankenberg’s book, it does seem that the relevant or principal objects of his critique, as well as its audience, are situated in the West. The practice of distancing, for instance, is meant to strike a “balance between going native and staying Western.”26 Negating Eurocentrism may end up affirming it. III. Before You Go The book’s focus on the Western experience of comparative law makes sense, given that many culprits of Eurocentrism are located in the West. Increased self-understanding may start a process of critical dialogue, as Frankenberg points out.27 Nevertheless, one does wonder whether comparative law’s encounter with the foreign and, in particular, the non-West (with or without scare quotes), really has to be so charged. Public international lawyers, legal theorists, and indeed comparative lawyers (as individual members of their discipline) have had fruitful interactions across perceived cultural boundaries. Might comparative law (as a collective discipline) likewise break free from the anxiety-inducing heuristic cycles identified by Frankenberg? There is, in fact, a way out, and this path reveals itself in Frankenberg’s book. Comparative Law as Critique demonstrates that decisions about what should be approached through the foreign/familiar dichotomy and what can be handled through the shared imagination of, say, public international law and legal theory are, at the end of the day, strategic choices. The first four chapters of the book, partly described above, belong to the snowcapped kingdom of comparative law. These chapters are particularly effective as critiques of the homogenizing tenets in comparative law. The comparative section is, however, followed by sections on Muslim veiling, human rights, and access to justice. These chapters include some comparative remarks, but they move beyond the methodological dilemmas highlighted in the beginning of the book. The analysis of Muslim veiling deploys the grid to what is essentially a global discourse rather than a series of national discourses.28 The chapter on human rights discusses different human rights narratives without locating these narratives in any specific jurisdiction.29 Frankenberg points out that some human rights narratives offer justifications for incidents of injustice, whereas others normalize judicial power.30 These are thought-provoking observations—and they are far removed from the idyllic realm of comparative law. The section on access to justice provides a helpful discussion in explicitly global terms on the elusiveness of justice, again without confining its views to a set of specific jurisdictions.31 Frankenberg’s observations on Muslim veiling, human rights, and justice are not comparative in any traditional sense—yet they resonate globally. In conclusion, Comparative Law as Critique compels comparative lawyers to reflect hard on their methods, politics, and ethics. Why even compare? Just as importantly, the book demonstrates that in some instances comparative sensibilities misdirect scholarly inquiries. It would be a shame if the project to establish and bridge gaps between the “familiar” and the “foreign” dissuaded legal scholars from engaging with debates that are, arguably, globally (and locally) more relevant than legal comparisons and their critiques. This is, I think, Frankenberg’s final lesson to his compatriots: comparative lawyers need to engage in debates by meeting “other laws and legal practices at eye-level.”32 Prospective visitors to the land of comparative law should read Frankenberg’s book before committing to anything. Footnotes 1. For a critique that comparative law has missed the boat on globalization, see Mathias Reimann, Beyond National Systems: A Comparative Law for the International Age, 75 Tul. L. Rev. 1103, 1114 (2000). For recent scholarship addressing this problem, see Mathias Siems, Comparative Law 222–24 (2014). 2. Annelise Riles, Introduction to Rethinking the Masters of Comparative Law 1, 9 (Annalise Riles ed., 2001). 3. Günter Frankenberg, Comparative Law as Critique (2016). 4. Id. ch. 2. 5. Id. ch. 5. 6. Id. chs. 6–7. 7. Id. at xi, 21, 26–27. 8. Id. at 15. 9. Id. at 34. 10. Id. at 75. 11. Id. at 110. 12. For uses of structuralism in critical theory, see Duncan Kennedy, A Semiotics of Critique, 22 Cardozo L. Rev. 1147, 1169–72 (2001). 13. Frankenberg, supra note 3, at 20–21. 14. Id. at 21. 15. Id. at 32. 16. Id. at 24–31. 17. Id. at ix. 18. Id. at 118–19. 19. Id. at 137–39. 20. Id. at 230. 21. Id. at 200–01. 22. Id. at x. 23. Id. at 97. 24. Id. at 87. 25. Id. at 87–88. 26. Id. at 81 (emphasis added). 27. Id. at 230. 28. Id. ch. 5. 29. Id. ch. 6. 30. Id. at 174–76. 31. Id. at 210–11. 32. Id. at 232. © The Author(s) [2018]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

Journal

American Journal of Comparative Law – Oxford University Press

Published: Jun 1, 2018

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