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

IS INSEPARABLY connected with doing research in the humanities and social sciences.3 Nearly any claim we make as lawyers, as well as every distinction we draw, will implicitly or explicitly be set against another situation. A legal arrangement can only be qualified as satisfactory or good because there is another arrangement by which it can be measured; such an arrangement is never good in and of itself. When judges are looking for principles to help decide an unprecedented or unregulated situation, they tend to rely on analogical reasoning, ie they apply a rule for a comparable situation, be it a real or hypothetical one, to the situation at hand. Also, ordering and classifying cases in a specific field or legal domain – call it the pursuit of coherence – is very much a comparative activity: it is an exercise which can only be done because there are a number of cases that can be situated against each other. Comparing, in other words, is a fundamental principle of legal research;4 it even provides the inevitable and inescapable frame of reference for scientific activity. ‘Thinking without comparison is unthinkable. And, in the absence of comparison, so is all scientific thought and scientific research.’5 It could therefore be argued that there really is nothing very special about doing comparative law. To be sure, legal research has some distinctive features, but comparativeness is not one of them; that quality is part and parcel of all research.

From this it follows (almost naturally, it would seem) that it makes perfect sense to assert, as John Bell does in his contribution to this volume, that:

[I]n major respects, comparative law is an instance of the more general form of legal research [which is according to Bell hermeneutic, interpretive and institutional, MA]. The way in which it attempts to reconstruct both the foreign and the researcher’s own legal systems is similar to general legal research on either of those systems.6


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.

Thus anyone, for example, who wants to know what the Belgian rules on euthanasia mean,8 will find that this is to a large degree determined by the institutional structure and legal culture in which they are embedded. A good example of this is the debate about the alleged existence of a right to euthanasia. Article 14 of the Belgian Euthanasia Act clearly provides that a medical doctor may refuse to perform euthanasia on grounds of conscience. This suggests that there is no such thing as a right to euthanasia in the sense that a patient can demand euthanasia from a specific doctor. Yet opinions differ among lawyers and doctors on the meaning of this provision.

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.

Differences of opinion continue to date, but the key to understanding this matter lies in the political and societal context, and ultimately revolves around the mainly ideological question of whether Catholic hospitals may prohibit doctors in their employ from performing euthanasia: if euthanasia is not an enforceable right, they might do so. The answer to this question is not merely academic, since about 80 per cent of the hospitals in Flanders (the region that accounts for more than half of Belgium in terms of number of inhabitants and geographical size) are associated with Catholic organisations. Awareness of this political and societal context is the natural habitat of Belgian lawyers – indeed, of the population at large – when interpreting the legal norms; they will have no difficulty in recognising and understanding the interests at stake. Nevertheless, in legal literature the matter is translated into (some would say ‘disguised as’) an almost exclusively legal dispute. That single fact makes the issue even more difficult for outsiders to understand. Not only do they have to grasp all the political and societal interests concerned, merely identifying them or even establishing that these are relevant issues at all is extremely difficult for them.

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.

In any case, trying to answer questions of this type raises very specific problems regarding the qualification of features of foreign law in a way not normally required for doing research within the boundaries of the home legal system. It is this situation that begs the question how to do research in such a way that reliable knowledge of the legal or legally relevant phenomena of one or more foreign legal systems can be acquired. In short, how can researchers engage in and understand the self-evidencies of another legal system so that meaningful comparison becomes possible, ie comparison which can identify real similarities and differences, relate them to each other and explain them? It is this problematic, and the methodological problems it poses, which I believe justifies calling comparative law a discipline in its own right. That is not to say that these are the only problems of doing comparative legal research, but I believe that it is this feature that makes comparative law particularly specific or distinctive.

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