Professor Fekete sets out to do two things in this latest addition to the European Academy of Legal Theory Monograph Series (edited by Mark Van Hoecke and François Ost). First, he sets out to provide a history of comparative law; and, second, he aims to do this through the prism of Thomas Kuhn's philosophy of science. The first project is not, in itself, controversial; the second is because it is by no means evident that Kuhn's thesis is applicable to a discipline such as law.
Fekete argues that the language of Kuhn provides a most useful framework for charting the history of comparative law in a way that avoids “descriptive linearity” (p. 10). Accordingly, he sees this history as consisting of five “paradigm” stages. The first stage is a pre-paradigm period where “the comparative method in legal scholarship had no uniform usage or broadly shared definition” and so “these precursors did not subscribe to a coherent conceptual framework” (at p. 39). Fekete examines here the work of scholars such as Leibniz and Montesquieu.
The second stage is the nineteenth century where a first paradigm period is identified associated with the legal evolutionists such as Henry Maine and his successors in the UK and the historical school jurists in Germany. This is the paradigm of historical and comparative jurisprudence whose defining characteristic is that it displayed a “methodological coherence” (p. 59). It was a paradigm that was inspired by biological and geological thinking resulting in a framework in which law was seen as a matter of evolution and progression. Whatever the shortcomings of these writers, says Fekete, “they still created a framework and achieved results” and this arguably created the first paradigm of comparative law, relying on stable methodological premises and research goals” (p. 60).
The third period is that of the second paradigm era which the author labels “the paradigm of droit comparé”. “Undeniably”, asserts Fekete, “the formation of the second paradigm of comparative law was strongly connected to the first international congress of comparative law, organised as part of the Paris World Fair of 1900” (p. 67). Here the deficiencies of the first paradigm period were recognised and writers such as Saleilles, Lambert, Rabel and Lévy-Ullmann on the Continent, and Gutteridge in the UK, sought to develop a proper comparative methodology that was clear and precise. The foundation of a contextual approach and a functionalist method were to emerge during this paradigm period, but “the representatives of the paradigm mainly searched for the similarities lying behind the different legal systems” with the result that the research scope was limited to the private law of the Western nations (p. 95).
A fourth period, that of the third paradigm era, emerged post World War II, and “was fundamentally influenced by the birth of the bipolar world order and the emergence of Soviet Bloc as a distinct political entity” (p. 97). The principal characteristics of this third paradigm was, first, a focus on the taxonomy of legal systems into families, traditions or whatever and, second, the rise to dominance of the functional method. René David, Konrad Zweigert and Hein Kötz are given much attention, as one might expect, but Fekete does not ignore the case-method form of functionalism associated with Rudolf Schlesinger. The author equally examines the important critique of functionalism set in motion by, says Fekete, Günter Frankenberg in a “seminal article” published in 1985 (pp. 131–34). Attention is then given to one of the practical projects often associated with functionalism, namely the “common core” and “ius commune” attempts to unify law for the purposes of commercial and European integration. The importance of this third paradigm, Fekete argues, is that the classification of legal systems “drew attention to the significance of the social and ideological elements determining the nature of legal orders” while “functionalism brought the analysis of the social aspects of law to the forefront” (p. 138).
The final, fifth, era is one that Professor Fekete describes as new trends in contemporary comparative law. He is unsure that this period actually amounts to a paradigm shift, but he is in no doubt that comparative law “has been transforming continuously since the late 1990s” (p. 139). The two new trends that he identifies are, first, what might be termed the cultural turn, which he associates in particular with the work of Pierre Legrand and David Nelken, and, second, the decline of methodological exclusivity whereby comparative law is governed by the idea of a single dominating method such as functionalism. Here he is influenced by the work of jurists such as Jaakko Husa and Mark van Hoecke. Fekete spends much time examining Legrand's work and rightly sees that this comparatist's articles of the mid-1990s as something of a turning point in comparative law in the way that it puts the emphasis both on legal culture and legal mentalités and on a shift from functionalism towards hermeneutics. This change of emphasis also results in a profound scepticism with regard to the idea that legal systems are converging – the “convergence thesis” – and of legal positivism in the context of comparative legal studies; the comparatist has to be committed to interdisciplinarity. Considerable attention is also given to the work of Lawrence Friedman with Fekete claiming that this writer “convincingly argues for the uniqueness of modern legal culture as a sociocultural entity” (p. 148).
This brief summary of Professor Fekete's view of the history of comparative law fails, of course, to convey the richness of detail about the particular comparatists to be found in the book. Moreover, the idea that such a history can be perceived as a linear descriptive process from then-to-now is rightly rejected by the author. The picture is much more complicated and the author certainly manages to convey some of these complications. Yet there are a number fundamental questions that arise out of this historical project, of which two (given the limitations of space) need to be carefully examined.
The first concerns the whole idea of classifying the history into five periods more or less associated with particular dates (1900, 1940s, 1990s). Although Fekete does not mention the 1846 Parliamentary Report into the state of legal education in England and Wales, this date could be seen as providing a starting point for the first “paradigm” in respect of the common law world since it was this report that stimulated the setting up of university chairs in law with the aim of bringing “legal science” into legal education, which encouraged in turn the teaching of Roman law. Indeed, Roman law became a requirement for the Bar right up to the late 1960s with the result that Roman law featured very heavily in the UK faculties up until the mid-twentieth century. Now much of this Roman law was taught in a positivistic way with almost no sensitivity to historiographical or methodological concerns. Yet, arguably, Roman law was of considerable importance in the history of comparative law in the UK. Not only were there comparative Roman law-English law courses – for example negligence in English and Roman law in the Cambridge LLB (now renamed LLM) and contract in English and Roman law in the London LLM – but such learning gave rise to an important structural approach whose effects are still being felt. One manifestation of this structural approach was the attempt to transplant the Gaian institutional system (persons, things and actions) into the common law, a project that certainly began with Blackstone's Commentaries on the Laws of England (Oxford 1765–70) (if not before) and continued up to the untimely death of Peter Birks who insisted that Gaius was the Darwin of law. One might add that it influenced some of the Victorian judges who were still trying to find a structural foundation for English law after the abolition of the forms of action. This structural transplantation aspect of comparative law history does not feature in Fekete's coverage.
One offshoot of this structural vision, also not mentioned by Fekete, is the whole debate about legal transplants that moved out of the realm of Roman law and legal history teaching itself and into comparative law. One leading figure in this debate was Alan Watson (not mentioned by Fekete) who, himself, started his professional career as a Roman lawyer, but later moved into the field of comparative law. What is important about Watson was not just his thesis about the transplantation of the Gaian institutional system into medieval and modern Europe but equally, and most controversially, his thesis that the connection between law and culture was more tenuous than one might think. Lawrence Friedman, so admired by Fekete, simply dismissed this thesis with the comment that “attacking Watson is like shooting fish in a barrel” and that Watson's “premises are ludicrous” (“Some Comments on Cotterrell and Legal Transplants” in D. Nelken and J. Feest (eds.), Adapting Legal Cultures (Oxford 2001), 93). Certainly Watson's thesis is very much open to debate and indeed Roger Cotterrell puts up a good argument that there are serious flaws in Watson's vision of how social scientists view the relationship between law and society. He is, says Cotterrell, not a rigorous theorist. Yet even Cotterrell admits that Watson's work is not to be dismissed.
The moral, so to speak, of this Watson debate is that there was much more going on in the twentieth century than the Fekete history reveals. Structural methods underpinned some key comparative works by jurists again not mentioned in this paradigm book. Otto Kahn-Freund, not to be found in Fekete's index despite him being a major influential figure, should no doubt be regarded as one of the pre-1990s pioneers of the importance of social context in comparing law (and what about Rodolfo Sacco, also not mentioned?), but he also wrote a remarkable in-depth introductory essay to the English translation of Karl Renner's book on legal institutions and their social function. Quite why this essay is not regarded as a key work in comparative legal studies is perhaps a mystery, but in its examination of legal institutions in the common law Kahn-Freund fashioned one of the great structural aphorisms (perhaps to be placed alongside Maine's famous ones) that legal institutions are like a child's bricks.
Another structural model that ought not to be ignored – and from a fellow émigré from Nazi Europe – is Walter Ullmann's construct through which he compared the Roman law model of government with the feudal model. It might be tempting to dismiss Ullmann as a medieval historian rather than a fully-fledged comparatist, but this would be most improper. He was trained as a jurist (Vienna) and his analysis of medieval political theory is as much a work on comparative law as anything produced by Henry Maine. And in fact Ullmann spawned a whole school of historians of law – one thinks of Brian Tierney and Peter Stein – whose work certainly embraces important ventures into comparative legal studies. Even structural evolution is not dead. Günther Teubner, another comparatist ignored by Fekete, argues “that a theory of legal evolution has great analytical and practical power if it stops claiming to be able to explain individual events and concentrates instead on explaining structural patterns” (Law as an Autopoietic System (Oxford 1993), 48–49) One does not have to agree with any of this, but these structurally orientated works form an important aspect of the history of comparative law. Indeed, structural patterns and variations go right to the heart of a legal mentalité on occasions as Frederick Lawson (also not mentioned by Fekete), in something of an understatement, once observed. Writing in the property section of the International Encyclopedia of Comparative Law, vol. VI (Tuebingen 1973), Lawson noted that “anyone brought up in a civil law or some other legal system who tries to compare a portion of it in any common law country with what appears to correspond to it in his own system must be on his guard against possible misconceptions”. Functionalism, for all its faults, was adapted in part to tackle this problem, but in doing this functionalism must not be allowed to eclipse the importance structuralism and its role in the formation of a legal mentality.
All of this takes one on to a second fundamental question. What is the relevance of Thomas Kuhn's philosophy of science? In many ways this is the most controversial aspect of Professor Fekete's book because Kuhn's thesis is not just centred on the notion of a paradigm. This notion has to be understood in relation to several other notions employed by this philosopher and historian of science. Kuhn's vision of the history of science has seven focal points: there is of course the notion of a “paradigm” but this is defined in part by its relation to “science”, to “scientific community”, to “anomaly”, to “crisis”, to “revolution” and to “incommensurability”. In Kuhn's original vision, as set out in his book The Structure of Scientific Revolutions (Chicago 1962), the history of science is not a linear one of a gradual accumulation of knowledge; it is one of periodic revolutions in which the scientific community discards one paradigm, because of the anomalies it has encountered in turn leading to a crisis, in favour of a new paradigm which is so different in its “world vision” that there is an incommensurability between the vision of those forming the community of the discarded paradigm and those of the new paradigm. It is as if, wrote Kuhn, the two communities were on different planets. As Fekete points out, Kuhn's thesis is not above criticism and Kuhn himself modified aspects of it in subsequent years (p. 39). Nevertheless, the original “hard” thesis needs to be retained when turning to the social sciences and, more specifically, to law because it is this hard thesis that presents real problems when one tries to apply it to the social sciences (not to mention at this stage law).
One of the problems with trying to apply the Kuhn model to the social sciences is that the latter, unlike the natural sciences, are subject to an epistemological pluralism. As the late French social science epistemologist, Jean-Michel Berthelot, noted, the natural sciences are on the whole subject to a unitary model – positivism – in which a certain number of characteristics dominate. These are experimentation, objectivism and reductionism. The emphasis is on the factual research, where the scheme of intelligibility is primarily a causal approach. This means that there is normally a clear and definable external object of research (res) whose “behaviour” in the end will govern the viability of the model (intellectus) employed to explain the res. This positivistic model has proved inadequate in the social sciences. Not only has each social science developed it own explanatory models and theories but even within a single social science there are often competing models, orientations and theories. Berthelot himself identified six different basic schemes of intelligibility – causal, functional, structural, hermeneutic, dialectic and actional (actanciel) – and while it is possible to label these different schemes, together with theories (Marxist, feminist and the like), as “paradigms” it is probably more helpful to see them as different “programmes”. For a functional “paradigm”, or a feminist “paradigm”, will not render obsolete (although it might have the capacity to marginalise for a while), a hermeneutic or a Marxist “paradigm”. There are never “revolutions” in the social science where one scheme or theory fully replaces another; the programmes co-exist.
In addition to these issues, law presents its own difficulties. There are of course competing models and theories – natural law versus positivism, structuralism (obsession with taxonomy and formalist rights models) versus functionalism (realism) and so on – but if one is to have recourse to the notion of a paradigm, then the dominating paradigm throughout law's history has been the authority rather than an inquiry paradigm. Jurists can criticise laws (statutes and cases) but they cannot ever deny their authority. This is one reason why, from the position of legal practice, nothing ever really varies even if the theories change. The object of analysis (res) never alters very much and so while there might be shifts in methodology (dialectics, induction, deduction, hermeneutics and so on) the “facts” (texts, written or unwritten) never change. There are no “anomalies” that plunge practicians and judges into a crisis. This is one reason why there have never been scientific revolutions in the history of law (see further G. Samuel, “Have There Been Scientific Revolutions in Law?” (2016) 11 Journal of Comparative Law 186).
Professor Fekete, to his credit, does not try to avoid these problems (pp. 9–30, 164–66). Moreover, he is not writing a history of law but a history of comparative law where, it might reasonably be said, the fifth period identified by him (post 1990s) is one where comparativists like Legrand have broken free of the authority paradigm. And so, what Fekete claims to be doing is applying a “light” version of Kuhn's theory, thus avoiding the problem of incommensurability between competing paradigms. What Kuhn offers, says Fekete, is “a conceptual vocabulary to tame the complexity of scholarly development” (p. 164). Yet it is not evident that he really needs this vocabulary. His five “paradigm” periods would be just as understandable if he were to use the vocabulary of social science – programmes, schemes of intelligibility, poles and orientations – and it (they) would surely suffice as a framework for his excellent discussion of the comparatists he regards as key in the history of comparative law. To employ Kuhn suggests that law is a science in the natural science meaning of the term; this is something that a good many comparatists would not just contest but see as very dangerous.
