Comparative Law and Language

Comparative law is law’s cybernetics, or “theory of messiness.” It attempts to steer through the messiness of the foreign by reordering it into the language of the familiar without betraying the original. It is needed urgently in contexts of unrecognized metamorphosis, and today metamorphoses are burgeoning in murky areas outside of law’s traditional categories of either the national or the international. The less apparent, the less visibly foreign, the foreign is, the more comparative law has a task of translation involving the formation of a vocabulary to transmit new configurations that resist detection and articulation. This essay examines the centrality of translation to processes of language and meaning construction, and links translation to comparative law as a model for the study of similarity and difference, the universal and the particular. The debate in comparative law over the relative importance of similarity and difference among legal systems has its counterpart in linguistics in conflicting views about whether commonalities among languages are fundamental or marginal. These issues situate both language and comparative law between mutually contradictory aspirations of universalism and pluralism which have stalked the evolution of both fields. Despite appearances of the ascendancy of universalism in today’s world, it is not difference and pluralism that are receding, but, rather, that former domains of pluralism and difference recede, while others emerge. Like language, inevitably imprecise and perpetually in flux, comparative law can not be frozen once and for all, to be captured for future application if only it is developed with sufficient acuity and insight. It shares what Isaiah Berlin attributed to philosophy and distinguished from the scientific: it does not carry within itself the method of its own solution, and therefore must be reinvented in each generation, destroying its own past rigidities and methods of decoding and transmitting, in order to construct a new modality of analysis, a new vocabulary better adapted to changed meaning. Comparative law shares with language the pitfalls of miscommunication and misunderstanding, as well as the potentials of learning to see, to communicate and to shed light in that elusive, inevitable, shifting and ever-reconfiguring space that, like language, it occupies between the same and the other

The Politics of Memory/Errinerungspolitik and the Use and Propriety of Law in the Process of Memory Construction

The post-Second World War trial for the crime against humanity from the start assumed pedagogical proportions, with the tribunals involved conscious that their legal verdicts would represent historical pronouncement and national values. The newly defined crime has been asked to institutionalize far more than the traditional task of adjudicating the guilt or innocence of the defendant. The trials themselves are meant to define the past, create and crystallize national memory, and illuminate the foundations of the future. I suggest that, by placing a burden on law that it is not designed to bear, we risk deforming law and legal principle. We risk creating an edifice that will not be equal to the task of memory, that will trivialize the memory it seeks to establish and fortify and, worst of all, that may betray law itself by subverting it from within

The French Legal System: Laypeople and Professionals: La justice en France: Laïcs et professionnels

This short piece addresses from a comparative perspective recent changes in France intended to strengthen the role of laypeople in the French legal system

L’Enseignement du droit aux États-Unis: réflexion sur l’actualité

This short essay updates an earlier publication on U.S. law teaching methodology as a reflection of the common law system that was published in 13 Cahier de Méthodologie Juridique. The older piece will be republished along with this update in 20 Cahier de Méthodologie Juridique. The central theme of the present piece is to raise the issue of U.S. legal education’s reflection of common law assumptions in light of today’s internationalization of law. More specifically, there is a growing consensus to confirm the theory of Niklas Luhmann that law is transnationalizing along substantive, functionalist lines. The work of contemporary scholars in Europe, such as (among others) Günther Teubner, and Mireille Delmas-Marty, and in the United States of Maryanne Slaughter, attests to a widespread agreement on the nature of law’s metamorphosis. Much important work is being done to analyze the new configurations that have fragmented law and that are displacing the nation state as the primary organ of legal change and regulation. This essay raises the issue of the less examined matter of internal impediments to communication and understanding within functionalist sectors. At this still early stage of globalization, encounter does not yet suffice for effective mutual understanding because legal actors linked by common professional objectives and undertakings nevertheless retain substantial differences in underlying legal conceptions which impede mutual understanding the more because they are latent

The Politics of Memory/Errinerungspolitik and the Use and Propriety of Law in the Process of Memory Construction

The post-Second World War trial for the crime against humanity from the start assumed pedagogical proportions, with the tribunals involved conscious that their legal verdicts would represent historical pronouncement and national values. The newly defined crime has been asked to institutionalize far more than the traditional task of adjudicating the guilt or innocence of the defendant. The trials themselves are meant to define the past, create and crystallize national memory, and illuminate the foundations of the future. I suggest that, by placing a burden on law that it is not designed to bear, we risk deforming law and legal principle. We risk creating an edifice that will not be equal to the task of memory, that will trivialize the memory it seeks to establish and fortify and, worst of all, that may betray law itself by subverting it from within