LEGAL SCIENCES comparative law is part of general legal studies. This means that it differs from the doctrinal study of law which is central to continental European and Nordic systems. While the doctrinal study of law (German Rechtsdogmatik) interprets and systematises valid law, epistemological premises of other legal disciplines distance themselves from valid law. It is assumed in this contribution that legal doctrine is a scholarly discipline in its own right, thus, legal doctrine itself is not studied.1
Methodological freedom within doctrinal study of law has been nationally and territorially limited as to what kind of argumentation is allowed and on which jurisprudential view of legal sources and valid argumentation is to be based.2 In the field of general legal studies, naturally there are also methodological and epistemic rules that are observed. However, the rules of general legal studies are not limited to the same extent to a particular view of argumentation and legal sources, nor to a specific interpretation of the ontology of law. In German legal sciences, such general legal studies are tellingly referred to as Grundlagenfächer, ie non-doctrinal basic research of law (Grundlagenforschung) whose core contents are Rechtsgeschichte (legal history), Rechtstheorie (legal theory) and Rechtsvergleichung (com parative law).3 These fields are partly committed to the same epistemic premises as the doctrinal study of law; they complete the picture conveyed by doctrinal studies and enrich the methodology of legal study, without losing the internal legal perspective, unlike the sociology of law.
Comparative legal science (or comparative law for short), just like the doctrinal study of law, often engages in studying valid law and therefore differs from such general legal studies as legal history and legal theory.4 Comparative law, however, does not rely on the interpretation of law within one system only; instead a conceptual framework has to be built where several systems are simultaneously studied, side by side. In these comparisons the basic epistemic viewpoint of law is not completely identical with that of national doctrinal studies of law where the perspective is internal.5
Most general legal studies have certain common features but there are also differences. The normative perspective of an internal player is usually lacking in general studies, but the mutual dissimilarity of general studies ensures that too close a likeness is prevented. Several newcomers to the field of general studies, such as law and economics, can be beneficial for comparative law as well as to doctrinal study.6 From the point of view of comparative law, one of the most interesting new fields is comparative legal linguistics which, in the family of legal studies, lies very close to comparative law.7 It is often very difficult to tell these two apart.8 The similarity between comparative legal linguistics and comparative law is easy to understand because legal texts in different systems are in different languages. On the other hand, it has to be remembered that problems with legal language are not only caused by non-national factors, but can be internal as well: also legal doctrine operates with legal language and is epistemically bound to it.
It would be wrong to claim that comparative law has only recently taken an interest in legal language. It is true to say that since the 1990s the theory of comparative law has contained an increasing amount of debate regarding the fact that the language of law and command of several languages is of a particularly great importance to comparative law. This point has been made with particular vigour in Anglo-American discussion where the use of English translations is threatening to become the dominant practice when old emigrant comparatists whose roots were in continental Europe have passed away.9 Many significant comparatists have mastered several languages, and also in the twenty-first century it is considered a relevant requirement that a mature comparatist is capable of referring to sources in several languages. Alan Watson is quite right when he writes on the dangers involved in comparative law and says: ‘too frequently linguistic deficiencies interpose a formidable barrier between the scholar and his subject’.10 What this barrier is like is pondered in this contribution.
This contribution studies the relationship between comparative law and legal language from the point of view of mainstream theory, so that there is a methodological undertone with which the present argument is seen in relation to the European doctrinal study of law. It has long been common in comparative studies to apply so-called functional comparative law, the concept that the influential classic by Konrad Zweigert and Hein Kötz has made well-known, having been translated into several languages.11 Functionalism has been both criticised and defended in discussions that have continued for decades and still do not show any signs of calming down. This is easy to understand if one agrees with Ralf Michaels: ‘For its proponents it is the most, perhaps the only fruitful method; to its opponents it represents everything bad about comparative law.’12
The argument of this chapter neither supports nor opposes any particular branch of comparative law; instead attention is paid to the relation between the basic ideas of functional comparative law and comparative legal linguistics, legal translation and doctrinal study of law.13 In an era when law is turning global, transnational or at least European, it is important to realise that legal translation, as well as interpretation and systematisation of supranational law in national systems means that comparison and legal linguistics become factors that also have an impact on national methodology. In the following, the point of view is methodological (in a non-normative sense) to the extent that the aim is to show how close to each other the theoretical premises of comparative legal linguistics and comparative law are. The point of view taken means practically that questions that are for instance related to whether it is possible or even necessary that there should be, in Europe, a common legal meta-language or at least a common technical legal language are not discussed.14
Section II., following this introduction, returns to the source of comparative law represented by Zweigert and Kötz; there we find the arch-functionalist Ernst Rabel. In section III., methodological core concepts of functional comparative law are discussed. In section IV., certain observations are made concerning methodological relationships between comparative law and legal linguistics. The final section, section V., deals with theoretic-methodological links between functionalism and legal linguistics and their possible relevance from the point of view of the modern doctrinal study of law.
II. BACKGROUND OF FUNCTIONALISM
While excavating the pedigree of comparative law, it is difficult to pinpoint any single person. Nevertheless, Rabel (1874–1955) is considered the founder of German comparative law, but in addition to that he specialised in international private law and Roman-Byzantine legal history in particular. His name is perpetuated in an esteemed German periodical Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ) that was first founded in 1927. The periodical that is published by Mohr Siebeck Verlag and comes out four times a year is now dedicated to comparative law and both foreign and international private law. In addition to these, special fields covered by the periodical are supranational integration and European law in general. The periodical publishes articles in English and German.15 Rabel, who established the periodical, is widely considered the father of comparative law.16 In spite of that his name does not evoke much applause within present-day European legal circles. Here, it is justified to ask, who then was this Austrian-German legal scholar?
Rabel was born in Austria to a Viennese family of a successful solicitor. He grew up in a liberal atmosphere, and his habilitation dissertation was written at the University of Leipzig at the beginning of the 1900s.17 He was a professor at his Alma Mater in the years 1904–06 after which he was a professor of various branches of legal disciplines in Germany: Basel (1906–10); Kiel (1910–11); Göttingen (1911–16); Munich (1916–26); and finally in Berlin (1926–37). Rabel had to move to the United States from Berlin after a short stop in Belgium because the political situation in Germany had turned intolerable for him. He was a Roman Catholic, but his ancestors were Jewish, which meant that it was not possible for him to make an academic career in Germany while it was ruled by the Nazis.18 This emigrant background is characteristic to many other significant legal scholars of whom the best known is probably Austrian Hans Kelsen.
In the United States, Rabel was later on a professor in the law school both in Ann Arbor (Michigan) and Harvard. Before he left Germany, he had founded and been the first head in the Emperor Wilhelm Institute (Kaiser Wilhelm Institut für ausländisches und internationales Privatrecht) that specialised in foreign and international private law under his leadership. This highly-esteemed institute now operates in Hamburg under the name Max Plank. Rabel’s contribution is now upheld in the highest esteem in Germany where he is considered to be the founder of systematic comparative law on whose theoretical basic concepts the study of comparative law still relies today.19 Although the basic form of functionalism can apparently be traced back to Rabel, it is not clear if there are grounds to hold him responsible for the branch of comparative law that emphasises praxis, judicial harmonisation and similarities and leaves less scope for the cultural context and differences.
Rabel’s work is considerable in volume and he wrote in several languages. In the Gesammelte Aufsätze series there are texts in German, English, French, Italian and Spanish which are the major languages of his publications. In the field of international private law his extensive work The Conflict of Laws: A Comparative Study (1945) is without doubt the classic in the field while Law of the Sale of Goods was for a long time a kind of theoretical model for supranational undertakings to harmonise law.20 His scholarly production is collected in the four volumes of the Gesammelte Aufsätze series, edited thoroughly and comprehensively (as is usual in Germany). From the point of view of comparative law, the most interesting of them is Volume III where articles particularly on comparative law and legal integration from the years 1919–54 have been gathered.21 Rabel’s work began to get international renown at an early stage due to internationally active researchers who became the big names of comparative law later in the 1900s.22 Notwithstanding, sometimes functionalism has been attributed to scholars who came a bit later than Rabel.23 In turn, Rabel himself confessed to having been influenced during his studies by a leading legal historian Ludwig Mitteis (1859–1921) who was interested in the functions of Roman law.24
It is, however, not surprising that this first formulator of functionalism has not always been esteemed. In fact, Rabel never formulated any comprehensive and systematic methodology. In spite of that his theoretical core ideas about comparative law have later commonly been referred to as functional or functionalist comparative law. The terminology used makes one think about connections with other disciplines. However, there seems to be no actual equivalence to the way this concept is used in other disciplines, for example, the way it is used to describe different systems in structural sociology, anthropology or biology. Due to this, concrete links to the same concept in other disciplines are mostly limited to the concept itself.25 In the same breath one has to register the general kinship of Rabel’s functionalism to the functional analysis that is part of Niklas Luhmann’s system-theoretic macro-sociology.26 This is one of the factors which connects functionalism and the social-scientific study of law. In spite of this somewhat distant social-scientific link, Rabel’s functionalism is more closely related to the doctrinal study of law than to the sociology of law, as far as attitudes and spirit are concerned. This is hardly surprising because Rabel’s background is in international private law, not in any of the social sciences.
From the point of view of comparative law, it can be stated that a functional approach continues to be the basis of mainstream methodology, although it has increasingly met with stronger criticism from supporters of several different theories.27 From the point of view of legal linguistics, the functional theory of comparative law is interesting because it contains an analysed explanation of the significance of language to a comparatist who approaches it in the epistemic sense from the outside, ie having an external view.28 It is also an unsophisticated basic theory in the respect that like other later comparative law theories of the 1900s it is derived from the scope of conflict of laws and mainly concentrated on private law. The transformation from conflict of laws and private law started to be practically corrected slowly starting as late as the 1990s and the 2000s in the various sectors of public law in particular.29 In the doctrinal study of domestic law, however, functionalism has had a surprisingly small role, although presumably it would perhaps fit particularly well together with the sociological approach of law. Importantly, the point of view taken by Rabel’s functionalism differs from the social-scientific one; it recognises the internal normative dimension of law better than sociology does.30
III. FROM RABEL TO ZWEIGERT AND KÖTZ
Rabel’s work is also impressive in its thematic coverage, and it is not practical to try to describe his ideas in general or to attempt to otherwise create a comprehensive picture of his extensive view of comparative law. Instead, it is worth concentrating on a few key ideas in his writing about the methods of comparative law. A good starting point could be Die Fachgebiete des Kaiser-Wilhem-Instituts für ausländisches und internationales Privatrecht (originally from 1937), a text in Gesammelte Aufsätze III where the field of research of the Institute is outlined from a professional viewpoint.31 At the beginning of the text, the development of the theory of comparative law from the early 1900s is run through in the light of names, such as Raymond Saleilles, Edouard Lambert, Josef Kohler, Frederick Pollock, Roscoe Pound and John Henry Wigmore. When Rabel exegetically kind of compressed the parts of earlier writers’ thinking which he found useful and synthesised the core of his own comparative method out of them, he summed up as follows:
Mit einem Wort: wir vergleichen nicht starre Daten und isolierte Paragraphen, wir vergleichen viehlmer, welche Lösungen sich aus der Gesamtheit des ganzen vollen Rechtserlebens in den einen und in dem anderen Staat in den gleichen Lebensfragen ergeben. Indem dieses umfassende Untersuchungsprogramm die Funktion der Rechtsinstitute (emphasis added) an die erste Stelle setz [. . .].32
The research programme that had been outlined for the Institute and the core of Rabel’s own comparatist identity is crystallised in the above quotation. Even if it is, in our eyes, not terribly original, it is formulated in style and is the first rough methodological guideline of comparative law concentrating on functions. Its principle components are basically unaltered compared to the way they are still formulated by Zweigert and Kötz and many other mainstream researchers in the 2000s. The core ideas are clear. Instead of concentrating on studying particular material and isolated provisions, emphasis should be on the comparison of those specific solutions that each state makes in situations that are practically identical. In such a study programme, a research method is used that gives preference to the functions of the institutions and norms under study. While the function is given priority, the comparatist is not restricted by the linguistic expressions and interpretations of the national systems they are studying.33
A. Relevance of Doctrine
From the present day point of view, it is easy to regard Rabel’s methodology as rough and general, as a kind of rule of thumb, which in fact it is.34 However, how should we conceive it today? Somehow, social and natural sciences have made the doctrinal internal methods that jurists have developed seem ‘non-scientific’. Functionalism is no exception to this: consider functionalism in biology or sociology and underdevelopment of comparative law simply sticks out. On the other hand, the power of Rabel’s rough functionalism might be in its apparent simplicity; on a general level it is possible to surpass difficult theoretical and practical problems that result from the plausible and systematic study of legal systems foreign to the comparatist with a flexible methodological rule that is easy to operate and remember. The rationale of following the method-rule is revealed in real terms only if one actually attempts to conduct research on comparative law and comes up with a number of questions: where to find reliable information on foreign law; how should the features of foreign law be understood (legal systematics, concept of legal rule, status of the courts of law and legislators, the extent of codification of law, concept of legal source, etc); and are the legal texts (statutes, argumentation of cases, judicial decisions, jurisprudential writing) reliable; does actual practice differ from the written law; and so on. It is easy to realise that in fact the national doctrinal study of law to a great extent ponders over similar problems. In other words, comparatists should at least try to reach the first doctrinal base of foreign law, even though deeper theoretical understanding might be unattainable.35
Another important text which was published earlier is Aufgabe und Notwendigkeit der Rechtsvergleichung where comparative law, its role and methodology are outlined.36 In this text three main categories of comparative law are separated: the dogmatic or systematic comparison, legal-historical comparison and legal-philosophical/legal-theoretical comparison. To some extent Rabel dissociates from all of these and ends up emphasising that single rules of law should not be compared completely out of context of the legal system.37 He also wants to keep separate the actual contents of the rule of law and their purely linguistic formulation, which we without difficulty find from statutes or recognise in judgements. He strongly emphasises the fact that merely comparing texts is not proper comparative law at all; texts on their own are like the skeleton without muscles, practice, and nerves, ie the prevailing understanding of the doctrinal study of law.38
The same basic message applies equally well to national doctrinal study of law as to supranational legal study with national normative interest of knowledge.39 Rabel took it for granted that nobody involved in the doctrinal study of law could ignore legal praxis or prevailing doctrinal writing, therefore he could not allow such an approach to any comparatists engaged in serious research either. He stressed the functions of law and its dependence on its own cultural contexts. Functions were for him like a lesson about everyday life that the comparatist has to grasp:
Zu erfassen aber haben wir aus diesen Quellen das Leben, die Funktionen der Rechtsgestaltungen. Denn das Recht ist . . . eine Kulturerscheinung, es kann nicht unabhängig gedacht werden von seinen Ursachen und Wirkungen.40
Language is the form that law – one’s own as well as foreign – takes. The comparatist has to strip the law of that camouflage and to attempt to find general reasons that have led to the adoption of the particular functions in each system. This presumes that the comparatist is not blind to legal praxis – the comparatist must not make the mistaken presumption that the surface gives a reliable picture of the law. However, it is not a question of actual legal realism in either its American or Scandinavian sense.41 The intention is to get under the skin of law. First, the basic thinking (Grundgedanken) under the surface layer of law has to be identified and, then, reconstructed. It is not identical with what the legislator has intended, nor is it the formal realisation (formalen Rechstelement) of the rule of law or the legal system. It is a question of study that attempts to clarify the basic way of thinking in valid law (thinking like a lawyer); in other words, how it solves the legal problem that the society has met. In this respect the comparative study of law has to be separated from the surface-level criticism of valid law and the approach that is openly legal-political.42 Yet, this distinction remains blurry.
B. Relevance of Context
A challenge that is always involved in comparison – and in national doctrinal study – is presented by the need to understand the written material, to master legal language and in general to master an unfamiliar information environment. Simply, all this offers several chances to be mistaken. A particularly important role is taken by the overall command of foreign legal linguistics and cultures (Auslandskunde) and the value brought by that understanding to the professional self-esteem of a jurist which runs parallel to a diplomat or businessman’s need to understand foreign cultures.
[. . .] der Bildungswert des römischen, englischen, französischen Rechts entspricht dabei ziemlich genau dem der lateinischen, englishen, französischen Sprache. Aber erst die Vergleichung mit dem eigenen Recht ist für den Juristen dasselbe, wie dir Auslandskunde für den Diplomaten oder Kaufmann.43
Here, too, it can be seen that the basic idea is not strange to the study of national law either: in recent years certain approaches that are related to the mastery of ‘unfamiliar scholarly culture’ have become increasingly popular, such as law and economics and law and politics. And, there are even more avant-garde approaches like evolutionary analysis and behavioural economics.44
It has to be mentioned that in Rabel’s opinion, comparative law and international private law were very closely related disciplines. Therefore, many of the methodological principles which he presented for the purposes of comparative law were, in his opinion, also applicable to international private law. This is based on the fact that Rabel was basically a Universalist who believed that there was a common core under all legal systems: ‘Hidden behind apparent dissimilarity, there are fundamental likenesses, suggesting international cooperation, though of course not necessarily unification’. Thus he saw that the norms which regulated conflicts between legal rules in international private law had been ‘derived from a national source like other legal rules, have special functions and purposes requiring a method of international scope’.45 Such international private law is not very far from comparative law – Rabel was a dedicated internationalist.46 To a great extent, this explains why it is difficult for those who in principle criticise harmonisation of law to accept many fundamental features of the methodology that Rabel represented.