Paradigms in Modern European Comparative Law

A History

Balázs Fekete

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509946938
• Edition: 1
• Topic: Droit
• Subtopic: Droit comparé

This book uses the philosophy of Thomas Kuhn to provide a new vision of the development of European comparative law that will challenge and inspire scholars in the field. With the 'empathic' use of some ideas from Kuhn's theories on the history of science – paradigm, paradigm-shift, puzzle-solving research and incommensurability – the book rethinks the modern history of European comparative law from the late 19th century to the modern day. It argues that three major paradigms determine modern comparative law:
- historical and comparative jurisprudence,
- droit comparé, and
- post-World War II comparative law. It concludes that contemporary methodological trends are not signs of a paradigm-shift toward a postmodern and culturalist understanding of comparative law, but that the new approach spreads the idea of methodological plurality.

1

The History of Comparative Law and Kuhn’s Oeuvre

I.STUDYING SCIENCE AS A HISTORICAL PHENOMENON: SOME PRELIMINARIES

A.On the Necessity of an Elaborated Historical Approach

Science has a prominently universalistic image in the Western world, and this implies a predominantly ahistorical and decontextualised understanding too. As such, science may appear as a phenomenon with universal validity, detached from any external condition that human existence may confront. However, the study of any branch or domain of science – whether from the field of natural or human sciences – can never completely neglect the historical perspective, as the relevance and importance of various achievements can only be understood properly in their broader context, mostly in comparison with previous developments. Thus, when studying the outcomes of scientific or scholarly activities, a certain degree of historical discussion is always necessary.

As this book is devoted to the study of the modern history of comparative law, the presence of a historical outlook is self-evident. There is no need to estimate how many manuals that discuss the intellectual history of a given subfield within legal scholarship have already been published. However, when trying to understand the history of legal scholarship, the application of the historical method in a conscious and scholarly way should give rise to other, hitherto unrecognised preconditions and outcomes. This issue requires the legal scholar to leave the comfortable and well-known area of legal scholarship and turn to other scholarly perspectives. For instance, contemporary philosophy of science may be capable of providing a valuable contribution to the design of any research programme that intends to map the modern story of any special subfield of legal scholarship. The relevance of the philosophy of science for such a study is strengthened by the simple fact that most of the developments in this field have largely been inspired by a dialogue or dispute with the oeuvre of Thomas S Kuhn, who brought tradition, and thereby history, within the focus of his inquiries into the nature of science.¹

Furthermore, the rather fragmented historiography of comparative legal studies – already mentioned in the Introduction – seems to be dominated by a so-called ‘descriptive linearity’ with respect to their attitude towards historical understanding. This means that scholarship considers the development of comparative law thinking as a linear process that starts from the pre-modern period and leads directly to modernity; in other words, from some archaic pre-modern precursors to modern scholarship. This is not too surprising, as legal history deeply embraced the concept of linearity when discussing the evolution of both a legal institution and an idea or school of legal thinking.² Furthermore, most research remains satisfied with the description, reportage and evaluation of certain historical events in this course of development – the publication of a book, the emergence of an idea, the main theses of a given scholar, the foundation of a new research institute, etc – but, in most cases,³ it does not reflect on the significance of the findings from other, broader perspectives, but simply familiarises the readers with what happened at a given moment or period and what has been explained in the field of comparative law by various scholars.

A ‘profitable use’⁴ of some Kuhnian ideas may be capable of providing a qualitatively different reading of the modern story of comparative legal studies, as they may enable the research to overstep the seemingly inherent limitations in the approach of ‘descriptive linearity’. However, this ‘import’⁵ obviously cannot be a simple and one-way intellectual transposition of Kuhn’s approach and insights to the field of legal studies; it must also be a reflective and critical process. This attitude is even more necessary if one takes into account the several controversies that have gathered around his work during the last 50 years,⁶ including the simple fact that even Kuhn was rather sceptical of the applicability of his theses to human or social sciences.⁷ This introductory chapter must therefore be devoted to an in-depth and critical analysis of how and to what extent Kuhn’s theory can be applied to the historiography of modern comparative law.

B.On the Historical Character of Scientific Development

If one takes Kuhn’s ideas as the starting point of an exploratory study, the need for a historical approach should not require further justification, as it is a necessary consequence of this attitude. Nonetheless, the specification of a broader historical outlook, creating a macro context, is still essential for finding a solid basis for the study itself. It is particularly necessary because the status of science as a historical phenomenon is still disputed, that is, whether it is an autonomous phenomenon, solely ruled by its internal laws and logic, or determined by the impact and influence of external factors; and whether it is a sui generis and exclusively self-reflective human enterprise, or serves other human interests too. Fortunately, certain insights from general modern historiography seem to be appropriate to provide us with a background by which the historical nature of science, as a collective human endeavour, may be clarified to the extent necessary for this study.

History was compared to a polyphonic choir by Fernand Braudel, who played a key role in establishing a new way of understanding history in general – as represented by the Annales school – during the second half of the twentieth century.⁸ With this metaphor, Braudel wanted to highlight the complexity of history, and he also implied that a comprehensive understanding of history must take this into account to produce a nearly complete picture of the past. As for the main layers of history, Braudel made a distinction between so-called ‘traditional history’ (l’histoire traditionelle) and ‘the new economic and social history’ (la nouvelle histoire économique and sociale). ‘Traditional history’ means the course of events, while another differentiation has to be made between conjunctures and basic structures within ‘the new history’. The level of conjunctures refers to the interlinked history of economies, societies, countries and cultures. Conversely, the level of basic structures encompasses the history of material and intellectual culture, itself being a necessary precondition for ordinary life. In other words, material and intellectual culture defines the borders of ‘the possible and the impossible’ with regard to human existence.⁹

In sum, the ‘multi-storey’ building of history is composed of these three main floors in Braudel’s eyes, and these levels of history are not only qualitatively different, but their relationships with time – as the general framework of existence – also diverge. Primary history occurs in ‘short time’, animated by the chain of consequent historical events; the time dimension of conjunctures flows by the slower rhythm cycles of middle-range time; and, finally, the basic structures are rooted in the almost immovable longue durée.¹⁰

Interestingly, Braudel initially puts science in the longue dureé, as he considered it as a component of the basic intellectual structure, defining people’s world views; he even uses it as a good example of longue dureé.¹¹ However, good arguments may also be found to suggest that science be repositioned at the level of conjunctures, thereby refining Braudel’s vision at this point. If, inspired by Kuhn, the intellectual history of science and scholarship is to be conceived of as being sequential – a chain of paradigm shifts in the broadest sense – and not linearly, it becomes a more dynamic course of development, one composed of cyclical changes,¹² unlike the classic approach based on the idea of a continuous and unbroken cumulative development of human knowledge.¹³ Further, it is rather likely that Braudel had this classic idea in mind, as the first edition of Kuhn’s breakthrough book on the structure of scientific revolutions was published a few years later than Braudel’s seminal article on the nature of longue durée. In sum, if the history of science is to be regarded as a story of the upheavals of paradigm shifts and the subsequent calm periods of normal science (to use Kuhn’s phrase) then its place in Braudel’s overview of history should be at the level of conjunctures instead of at the level of longue dureé.

This position of the history of science clearly implies that the story of a scientific or scholarly subfield is affected by many other external factors originating from upper layers – the events – or lower layers – the longue durée – of history in general. However, as it is a distinct entity, science also possesses its own, sui generis history emerging from the internal – either linear or cyclical – development of scholarly theses. Therefore, the intellectual history of science may be envisaged as a historical process, having an individual character that is always preserved under the pressure of various external, and thereby independent, influences. Many external phenomena – which come either from the level of events or basic structures, or from other phenomena of a conjectural nature – may have an impact capable of exerting some influence on the formation of science as such, but science’s individual and peculiar development, due to its unending internal refinement, always continues. In other words, science can never be regarded as a simple corollary to more comprehensive structures.¹⁴ In conclusion, factors outside science as such must always be studied and considered, in the most empathic way possible, but their impact should never be overstated, as this approach may degrade science to a simple and artificial reflection – a mirror – of outside, sometimes totally secondary, civilisational circumstances.

C.Choosing a Proper Starting Point – The Importance of the Definition of Science

A serious additional difficulty came up in this inquiry. When studying the story of a scientific area, not only have the regular uncertainties of these endeavours to be confronted – for instance the lack of sources, the biases stemming from retrospective research goals, and the unintentional underestimation or overestimation of certain points – but some preliminary problems have to be clarified too. A major problem is the definition of science or scholarship in the field of social and human sciences. A properly chosen definition may considerably facilitate the research; it is then possible to tame and conceptualise a phenomenon composed of an almost unlimited number of facts and rather unclear internal connections and relationships. In sum, a proper and operational starting definition seems to be more than necessary for such an enterprise.

It should also not be forgotten that any intellectual history applies prioritisation as a research tool and simplification in its analysis and reporting; therefore, it is simply unable to grasp the entirety of the course of development. So, a factually complete description of the evolution of a given field of study is a simply unattainable point, an illusory goal. It implies that an attempt to prepare the intellectual history of a certain academic field is, in fact, an attempt to reconstruct the facts of this story by relying on the previously chosen concept of science or scholarship. It can even be argued that the concept of science applied (in our case, as this discussion will be about a sub-field of legal scholarship with strong ties to both the social and the human sciences, it seems to be more appropriate to use the term ‘scholarship’ in the following) provides a starting point that re-creates the intellectual history of a field of scholarship according to its own specific premises.

Thus, the historiography of science and scholarship is characterised by both reflection and creativity, not only by mere factual description and ‘data’ analysis. However, this ‘subjective’ element by no means decreases the academic value of such studies, as the reader can always have access to other, sometimes fundamentally different, interpretations of the same story on the shelves of the libraries. In conclusion, the task of the history of scholarship – from the perspective of this book – is definitely not to produce an encyclopaedic summary of all the events, persons and facts, but to make an attempt to understand this story in a reflective and critical ...

Table of contents

• Cover
• Title Page
• Foreword by Mark Van Hoecke
• Acknowledgements
• Contents
• Author’s Note
• Introduction: Scope and Subject
• 1. The History of Comparative Law and Kuhn’s Oeuvre
• 2. Historical and Comparative Jurisprudence
• 3. The Paradigm of Droit Comparé
• 4. The Third Paradigm – Post-World War II Comparative Law
• 5. New Trends in Contemporary Comparative Law: Towards a Paradigm Shift?
• Concluding Thoughts
• Bibliography
• Index
• Copyright Page