Doing What Doesn’t Come Naturally. On the Distinctiveness of Comparative Law

II. . . . ‘AND YET IT MOVES!’

If all of this is true, why deliberate on the question of whether there is something special about doing comparative legal research? Why not simply refer to what doing legal research amounts to, and then add a few words of warning on the choice of countries, the dangers of translation, and so on?

The reason for this is of course that the foregoing cannot fully account for what happens in what is generally termed ‘comparative law’. As I will explain there is indeed something special or distinctive about doing this kind of research – and Bell is very much aware of it. For why else would the phrase ‘comparative law’ proudly carry the term ‘comparative’ in its banner? If it does not want to be dismissed as a pleonasm – ‘Thinking about the law is by definition comparative, silly!’ – research of this kind should at the very least pose some specific challenges other than the problems lawyers and legal researchers routinely face.⁷

One of the main reasons why there is something special or distinctive about doing comparative legal research, something that calls for a specific approach and specific methods, is that legal comparatists must, among other things, immerse themselves in a foreign and therefore strange legal system. Such an ‘involved’ activity does not come naturally because legal comparatists have to deal with one or more legal systems whose ‘language’ (metaphorically understood) they do not speak, ie systems with different institutions and unexpressed codes, their own histories, ideologies and self-images, systems they have not normally been trained, educated or disciplined in, and with which they are therefore not naturally or intimately connected. This process of trying to understand foreign legal systems (or some of their elements) with an eye to subsequent comparison, manifests particular problems because it goes far beyond mere fact-finding and the regular (ie national) way of legal interpretation, where lawyers engage the just mentioned social context as an almost natural given when determining the meaning of the law. The problems the law addresses and the solutions which it intends to provide are very much connected to the socio-cultural environment that gave rise to them. This environment should be actively and consciously engaged for meaningful comparison to become possible.

Proponents of an enforceable right to euthanasia argue that because the Belgian Euthanasia Act explicitly requires that euthanasia be performed by a doctor, it must be considered ‘normal medical behaviour’. Since it is ‘normal medical behaviour’, doctors are under an obligation to perform it if the extensive conditions listed in the Belgian Euthanasia Act are met.⁹

Opponents of such a right to euthanasia, on the other hand, rely heavily on a reconstruction of the legal context in which the Euthanasia Act should be placed, situating the supposedly applicable legal norms in the wider context of health care legislation.¹⁰ From a legal point of view, the opinion that euthanasia is ‘normal medical behaviour’ cannot be correct, so the opponents argue, because under Belgian law medical behaviour that for non-doctors would constitute a criminal act can only be legally justified under the Royal Decree concerning the practice of health care professionals. This Decree provides, among other things, that a doctor has an obligation to treat a patient when there is a medical indication for the treatment – subject to the consent of the patient, of course. This legal justification (and the doctor’s connected obligation) does not, however, cover behaviour of physicians for which there is, apart from exceptions, no medical indication, such as abortion, removal of an organ for transplantation, non-therapeutic medical research and euthanasia. In other words, so these opponents argue, to justify these medical activities explicit legalisation is required. It is the Euthanasia Act itself that creates a specific legal justification for euthanasia, but not a right to it. To the opponents the distinction between medically-indicated treatment and medical behaviour that is legal but not medically indicated clearly implies that euthanasia cannot be considered ‘normal medical behaviour’.¹¹ As a result there cannot be an enforceable right to it.

What especially complicates matters for a comparatist is that in the Netherlands the idea that euthanasia cannot be considered a form of ‘normal medical behaviour’ has been discussed in similar terms (and there is general consensus that it is not), but for quite a different purpose. The Dutch discussion has focussed not on the matter of the existence of an enforceable right (for which there is little support) but rather on the question whether a criminal control regime for euthanasia is necessary and wise, or whether control could be left, at least in first instance, to the profession itself (as is largely the case for ‘normal medical behaviour’). Here the discussion has not been so much ideologically inspired (at any rate far less so than in Belgium) as it has been policy driven: what form of control can best meet the need for safety and public confidence, once euthanasia is made legal?¹² So what we see is two countries using similar legal arguments in a seemingly similar debate but with quite different implications and a completely different cultural and political drive behind the debates.

As this example shows, of the many challenges that confront the comparatist the question as to the meaning of foreign legal ‘facts’ – how should they be interpreted and understood, or their existence explained? – is prominent. How can one uncover, in a foreign legal system, the ‘truth’ behind the legal rules and other legally relevant facts that first catch the eye of a researcher? In a sense, this is easier if the legal facts concerned are exotic and plainly require further attention. It is especially when they seem familiar or even self-evident that the comparative researcher can be lead to draw ‘obvious’ but in fact superficial or misleading conclusions as far as similarities and differences are concerned.

The foregoing implies that these problems of doing comparative legal research are particularly manifest when comparatists attempt to focus on the stage of information gathering and juxtaposing the findings (presenting the materials found), ie the stage which must precede the process of explicit comparison. Here, comparatists should try to ‘simply’ gather as much information as possible about a foreign legal system and present it as best they can in the way it is understood by those internal to the legal system, ie those who are working from within and who experience the rules and institutions as daily realities and as reasons for action.

This preliminary phase of comparative legal research of course sets the stage for the subsequent explicit comparison. To avoid misunderstandings, I am not implying that this information gathering and reconstruction phase is utterly devoid of comparison.¹³ To the contrary, even ‘just’ studying a foreign legal system will unavoidably, albeit implicitly and maybe even unconsciously, cause jurists to refer to and reflect on their native legal system.¹⁴ Comparison in this sense may also steer the choices the comparatist makes when attempting to describe the foreign object of research. This is due to the fact that when this interference occurs, it inevitably does so with the ‘home’ system in mind as a frame of reference. It is this very propensity which can be highly hazardous because it may all too easily result in the other legal system being described or analysed within a framework which is characteristic of the researcher’s own legal system (ethnocentrism!). The lack of acknowledgement and consideration of this fact often brings on misguided, misleading or erroneous conclusions, steering the research into the direction of the search for similarities rather than similarities and differences.¹⁵