Kessler, Amalia D.

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The Making and Debunking of Legal Tradition

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Roger Williams University Law ReviewVolume 16Issue 1 Symposium: Methodological Approaches toComparative LawArticle 7Winter 2011The Making and Debunking of Legal TraditionAmalia D. KesslerStanford Law SchoolFollow this and additional works at: http://docs.rwu.edu/rwu_LRThis Article is brought to you for free and open access by the Journals at DOCS@RWU. It has been accepted for inclusion in Roger Williams UniversityLaw Review by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationKessler, Amalia D. (2011) "The Making and Debunking of Legal Tradition," Roger Williams University Law Review: Vol. 16: Iss. 1,Article 7.Available at: http://docs.rwu.edu/rwu_LR/vol16/iss1/7The Making and Debunking of LegalTraditionAmalia D. Kessler*I would like to tackle one particular aspect of the relationshipbetween comparative law and society - specifically, the impact ofsuch forces as history in shaping the law. In particular, I aminterested in exploring the tension between history andcomparative law as modes of partisan argument on the one handand as methods of scholarly analysis, on the other. Putdifferently, I would like to discuss the important and interrelatedroles played by history and the comparative perspective in boththe making and debunking of legal tradition.Both history and the comparative perspective function aswhat we might call "tradition-makers." They serve to legitimizelegal rules or institutions by anchoring them within a particulartradition, be this historical or comparative. In this sense, bothhistory and the comparative perspective are modes of discoursedeployed for strategic purposes-to justify the legal status quo orto demand its reform. The utility of both these modes of discoursestems from the fact that their point of reference lies outside theimmediate context. In this way, history and the comparativeperspective achieve a distance that endows them with a certainargumentative plasticity.In the case of historical discourse, disputants point to(differing) facts from the past as a way of constructing alternativetraditions in support of their conflicting strategic goals. One of" Professor of Law and Helen L. Crocker Faculty Scholar, StanfordLaw School. Editor's note: This essay draws from the author's remarks on apanel during the American Society of Comparative Law's Annual Conferencethat was held in October 2009 at the Roger Williams University School ofLaw in Bristol, Rhode Island.130 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 16:129the more obvious examples in the domestic American context isadvocacy for the existence (or non-existence) of constitutionalrights. Frequently this discourse takes the form of a debate overthe historical origins and meaning of particular constitutionaltext. Thus, proponents of a constitutional right to bear armsinsist that the Second Amendment must be interpreted in light ofthe existence of a longstanding historical tradition affirming sucha right. Opponents, in turn, insist that there is no such tradition- and to the contrary, the tradition has been to deny any suchprivate right to bear arms. Similarly, in the European context, wehave seen advocates for the creation of a unified, transnationalbody of European civil law seek to justify its viability anddesirability by pointing to its historical origins in the ius communeor common law of medieval and early modern Europe. Theiropponents, in turn, deny any continuous historical traditionlinking the ius commune to the present and depict the rise ofnational law from the late eighteenth century onward as adefinitive break with the past.Like history, the comparative perspective facilitates thestrategic construction of a legal tradition by permitting a certaindistance from the immediate context - though the distance isprimarily geographic, rather than chronological in nature. Theobject of comparison is constructed as "the other"- as a foilagainst which to applaud or to decry domestic rules or institutionsand thus to argue for their preservation or reform. For example,generations of American lawyers and legal scholars have pointedto the European legal tradition in order to highlight thesupposedly distinctive, contrasting virtues of its Americancounterpart. In particular, they have emphasized Europeancommitment to inquisitorial modes of process and to abureaucratic judicial structure as a means of underlining theUnited States' determination to protect the individual from anoverreaching state and to uphold such judicial values ascreativity, common sense, and equity. In this way, Americanlawyers have long sought to shield their institutions from anymeaningful threat of reform, while at the same time elevating thestatus of the legal profession by casting it as the natural guardianof virtuous domestic traditions.History and the comparative perspective, however, are notsimply modes of discourse subject to strategic deployment in theLEGAL TRADITIONargumentative field. As forms of academic discipline, they stand- or at least, in my view, should seek to stand--outside the realmof immediate, partisan pressures. In this capacity, history and thecomparative perspective function to critique their strategic usesby helping us to reflect on the constructed nature of tradition assuch. Deployed to achieve such academic goals, history and thecomparative perspective function not as the makers of tradition,but instead, as its debunkers. Once again, it is the distance thathistory and the comparative perspective afford from theimmediate context that is key to their success in this regard.By reflecting back on the past, the historian can detect thestrategic maneuvers underlying the construction of a particularlegal tradition - the ways in which certain facts are givenparticular emphasis, while others are subtly occluded orruthlessly cast aside. To take an example from recent work ofmine, 1 consider the evolution of the now widely accepted view thatthe French judiciary (like that of continental European nationsmore generally) is structured as a civil-service bureaucracy.While this account is so established as to be essentially beyondcavil, even the briefest review of the contemporary French judiciallandscape suggests that it is woefully incomplete, and thusmisleading. The French judiciary includes numerous commercialand labor courts that simply do not fit this bureaucratic model.Judges in these courts lack formal judicial (and usually legal)training of any kind and are elected mid-career to serve temporaryterms of office. The commercial and labor courts have thus beenmarginalized within the prevailing account of the French judiciaryas a civil-service bureaucracy. The historian can help shed lighton this odd state of affairs by tracing how the civil-servicebureaucracy account of the French judicial tradition first came tobe constructed in the early to mid-nineteenth century.Specifically, the historian can discover and examine the strategicpurposes that the traditional account was designed to serve -namely, to distance allegedly modern French judicial institutionsfrom a much-reviled corporatist past, and to elevate the power andstatus of a beleaguered legal profession by marginalizing those1. See generally, Amalia D. Kessler, Marginalization and Myth: TheCorporatist Roots of France's Forgotten Elective Judiciary, 58 AM. J. COMP. L.679 (2010).20111132 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 16:129judicial institutions in which such professionals played little role.Like the historian, the comparatist uses her distance from thelegal culture under examination to illuminate the constructednature of its traditions. To continue with the previous example, itis those outside the French legal system who are in the bestposition to observe the obvious, the somehow neglected fact thatimportant French courts simply do not conform to the standardaccount of the French judiciary as a civil-service bureaucracy.While those inside the system have been indoctrinated with thistraditional account from an early age through schooling, pressreports, and the like, those outside can observe it with fresh eyes.Along these lines, it is telling that at the very same moment thatnineteenth-century French jurists were first constructing anaccount of their judiciary that all but erased the existence of thecommercial and labor courts, their American counterparts wereemphasizing the important role played by these institutions in theFrench judicial system. In particular, as I have argued elsewhere,nineteenth-century American lawyers extensively debated thedesirability of transplanting what they called "conciliationcourts"- including the French commercial and labor courts - toAmerican soil. 2  From their perspective as outsiders, theseinstitutions were, in short, fundamental components of the Frenchjudicial landscape.Where does this leave us? As suggested by the viewpoint ofboth history and comparative law, the French tradition of a civil-service bureaucracy is less solid and imposing than mightotherwise seem to be the case. History and comparative law, inother words, teach that tradition is neither necessary norinevitable, but instead the contingent outcome of a struggle inwhich particular groups seek to advance their own, strategicinterests. In my view, that is precisely the point of the scholarlyendeavor. By questioning the necessity or inevitability oftradition, it frees the present from the grip of the past andremoves the blinders that inhere in an overly local and narrowperspective - thereby making change possible. This is not, ofcourse, to suggest that the scholar can herself stand entirely2. See generally, Amalia D. Kessler, Deciding Against Conciliation: TheNineteenth-Century Rejection of a European Transplant and the Rise of aDistinctively American Ideal of Adversarial Adjudication, 10 THEORETICALINQ. L. 423 (2009).2011] LEGAL TRADITION 133outside of the argumentative field - that the attainment of trulyneutral ground is possible. After all, most scholarly work is itselfmotivated by some kind of engagement with the immediate,domestic context. However, we can choose to embrace the idea ofsuch neutral ground as our lodestar. Whether and to what degreewe have succeeded can then be measured by the extent to whichour efforts serve to generate, rather than to end discussion. Asmakers of tradition, history and the comparative perspective seekargumentative finality. As its debunkers, history and thecomparative perspective aspire to nothing more nor less than toopen the debate.

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The Making and Debunking of Legal Tradition

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