Vol. 12 No. 4 (April 2002) pp. 205-207.
RETHINKING THE MASTERS OF COMPARATIVE LAW by Annelise Riles (Editor). Oxford: Hart Publishing Co., 2001.
262 pp. Cloth $80.00. ISBN: 1-84113-289-6. Paper $30.00. ISBN: 1-84113-290-X.
Reviewed by Tom Ginsburg, Law and Political Science, University of Illinois, Urbana-Champaign.
At the very moment comparative law should be celebrated because of its new utility to constitution and code-drafting
as well as the international harmonization of law, the academic discipline is in a perpetual state of crisis, with
little agreement on methods or goals. Into this muddled field comes Annelise Riles' edited volume, RETHINKING
THE MASTERS OF COMPARATIVE LAW, which continues her highly original work in breaking open the stultified paradigms
of comparative law.
The volume consists of a series of essays by younger scholars in comparative law, each of who selected a "Master"
thinker to read and reflect on. Included are classic figures such as Montesquieu and Weber, as well as others
who may be less well known outside the legal academy, such as Kantorowicz, Rabel, and Schlesinger. Of particular
interest are essays on two non-Western comparativists, Nobushige Hozumi and Abdel-Razzak Al-Sanhuri, who played
critical roles in the spread of Western law to Japan and the Arab world respectively. Although the different essays
vary in approach and tone, as well as the degree of sympathy they exhibit toward their subject, the product fits
together well as a whole and adds up to an interesting exercise in intellectual history from a new perspective.
Although it does not purport to provide a comprehensive overview of the field of comparative law--the selection
of "Masters" is self-consciously ad-hoc--the volume succeeds in touching many of the main themes of the
Riles is a trained anthropologist but perhaps better described as an epistemologist. In her introductory essay,
she untangles the history of the subdiscipline of comparative law and helps elucidate why it sees itself as perpetually
in a state of crisis. Riles notes that comparative law is at bottom a "modernist" effort, whose history
has been one of instrumentalist service of a range of "projects." These projects include colonialism
and decolonization, the cold war, nineteenth century liberalism and international harmonization (pp. 2, 10-12).
Riles' concern is to examine the forms of knowledge wielded and employed by comparative lawyers in these "projects."
In her view, the framing of the discipline as technical has obscured the political underpinnings of its practitioners,
and this series of essays seeks
to reconstruct the relationship of the discipline to particular political projects.
The essays on each scholar self-consciously try to integrate biography and project. There is an attempt to understand
each thinker on his (!) own terms and within his own context. For example, Robert Launay's reading of Montesquieu
shows how his comparative analysis emphasized Asia to serve as an argument against
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absolutist monarchy in France. Vivian Grosswald Curran's essay on Kantorowicz is a thorough attempt to grapple
with the implications of his "free law" theory for Nazi jurisprudence and for American legal realism
of the 1930s. Hitoshi Aoki dissects one of Hozumi's articles to show how his selective adoption of Western modes
of analysis provides insight into the broader project of Japan's selective adoption of modern Western law. Amr
Shalakany's essay on Sanhuri is framed against today's attempts, ultimately futile, to find some "authentic"
tradition free of Western influence. Other essays cover Ernst Rabel, Rene David, Max Weber, John Henry Wigmore,
Rudolph Schlesinger and Rodolfo Sacco.
The numerous contacts and internal relationships among the various "masters" are given relatively less
attention, with Ugo Mattei's comparative essay on his two mentors Schlesinger and Sacco being somewhat of an exception.
Despite the fact that the "Masters" were selected for the volume primarily through the individual interests
of the participants, a picture of the discipline still emerges from this series of snapshots. It is of a rather
clubby field, self-consciously engaged in discipline building since its first Congress in 1900, but without the
substantive debates and controversies that typically constitute academic communities (p. 6). The method of the
discipline is more often than not bureaucratic, reaching its zenith in Schlesinger's several-decade project to
identify the "common core" of legal systems (p. 243-44), or more recently the Lando commission on European
contract law. One of the most important projects of comparative law, it seems, is comparative law itself.
In short, Riles and her collaborators have put together an interesting intellectual history in a post-modern mode,
though I sense there may be some objection to the use of that term. It is interesting to note that no scholar
treating comparative law a social science is really covered in the volume, though Rabel's functionalism and David's
taxonomic approach share some of the impulses of social scientific examination. Riles traces the movement of comparative
law AWAY from empiricism (p. 10, 17), a movement attributable in large part to a normative desire by the Masters
to construct universal models and harmonization. Ironically, comparativists have been interested in overcoming
differences among legal systems, hoping that uniform law will lead to a world with less conflict. This normative
effort has to a certain degree insulated comparative law from the influence of social sciences that have so deeply
penetrated other areas of legal scholarship.
Riles sees her own effort as to "construct and autonomous and respected academic discipline-to present comparative
law as the future vanguard of legal theory" (p. 18). This is a noble effort, though I am skeptical of the
possibility of any legal sub-discipline being truly autonomous. The methodology of this book is highly original,
and therefore a bit difficult to replicate. Many scholars may find traditional social scientific inquiry more
fruitful to producing interdisciplinary and comparative legal scholarship.
Indeed, such positivist work, highly empirical and interdisciplinary, is precisely what political scientists working
on comparative legal materials have done, and for this reason RETHINKING THE MASTERS may be less interesting to
political scientists than to legal scholars.
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Although comparative law in the law schools has been in bad shape for some time, political scientists have produced
a number of good volumes useful for undergraduate and graduate courses (Shapiro 1980; Tate and Vallinder 1995;
Epp 1998; Jacob et al. 1996; Kagan and Axelrad 2000). These volumes are all explicitly social scientific in perspective,
whereas Riles' approach in uncovering the epistemologies of the discipline is likely to be of greater interest
to those working in a more or less positivist mode.
As a final, somewhat tangential, note, it is interesting that scholars working on Japan have done the most refreshing
work bringing social science perspectives to comparative law. These include Mark Ramseyer's various volumes from
a law and economics/rational choice perspective, John Haley's historical and institutional work, David Johnson's
wonderful new study of prosecutors, THE JAPANESE WAY OF JUSTICE, (recently reviewed in LPBR, volume 12, pp. 147-50),
and the work of Japanese scholars Takao Tanase and Setsuo Miyazawa, to name only a few. Riles too has a background
in Japanese studies. I venture to say the range and quality of interdisciplinary work on Japanese law is far greater
than such work examining most other legal systems. Why might the study of Japan lead to such interesting work
from a wide range of perspectives? Part of the answer might lie in the way Japanese law was always peripheral
to the discipline of comparative law itself. Whereas mainstream comparative law has always been continental in
orientation, both in subject matter and disciplinary approach, scholars of Japanese law were not part of this intellectual
stream and therefore not burdened with the inherited epistemology of the "Masters."
Epp, Charles, 1998. THE RIGHTS REVOLUTION. Chicago: University of Chicago Press.
Jacob, Herbert, et al. 1996. COURTS LAW AND POLITICS IN COMPARATIVE PERSPECTIVE. New Haven: Yale University Press.
Kagan, Robert and Lee Axelrad 2000. REGULATORY ENCOUNTERS. Berkeley: University of California Press.
Shapiro, Martin, 1980. COURTS. Chicago: University of Chicago Press.
Tate, Neal and Thorsten Vallinder, 1995. THE GLOBAL EXPANSION OF JUDICIAL POWER. New York: New York University
Copyright 2002 by the author, Tom Ginsburg.