The year 2019 brought two important publications in the field of comparative law. The second edition of The Oxford Handbook of Comparative Law was joined by the English translation of Uwe Kischel's Rechtsvergleichung [Comparative Law].Footnote 1Comparative Law is a voluminous book that, according to Günther Frankenberg, may well ‘replace, bypass or update the standard textbooks’.Footnote 2 Kischel's work will likely become a point of reference for students of comparative law ranging from beginners to scholars and practitioners. After its original German version generated a strong response worldwide,Footnote 3 the book has now become accessible in English.

The book's objective is ‘to serve as a point of entry and a constant companion as [readers] explore the often bewildering panoply of legal orders in the world’ (p IX). Furthermore, its primary focus is on method.

The first part of the book is dedicated to general issues of comparative law (p 3–44) and its teleology: the aims, uses, and aspects of legal education (p 45–85). The third chapter includes a critical assessment of a variety of methodological approaches, culminating in the presentation of the author's personal viewpoint on the role of context in comparative research (p 152–200).

The second part of the book offers insight into the major legal contexts of the common law (p 227–357) and the civil law (p 359–630), as well as a chapter on the legal contexts of Africa (p 631–674) and Asia (p 675–787). The book also examines supranational legal contexts, discussing Islamic and other religious laws as well as public international law, EU law, and lex mercatoria (p 789–897). The taxonomy of the world's legal geography is based on an ideologically neutral and highly contextual investigation of the law as mostly ‘law in action’ or ‘law in mind’ (p 8), thus setting aside taxonomies based on concepts such as legal family, culture, or tradition (p 220).Footnote 4 Interestingly, the author also provides an in-depth account of the sub-fields of major legal contexts.

Kischel's comparisons are not limited to the frequently-debated ‘model’ jurisdictions of the Western world, such as England, France, and Germany (p 517). For instance, he discusses the Eastern European and Nordic regional sub-traditions and the differences between English and American common law, not to mention the differences among modern Islamic legal systems. The detailed exposition of the civil law context (p 359–619) may be particularly useful for readers who are more familiar with the Anglo-American legal tradition. All the large-scale geographical contexts are described in light of a number of specific topics, ranging from institutional and educational backgrounds (court structure and legal professions) to the shaping of case law and the most crucial issues, for example the rule of law, elements of a criminal offence, trial by jury, adat, good faith, ubuntu, human dignity, and so on. The selection of material allows for a thorough presentation of the multi-dimensionality of comparative law, while avoiding the shortcomings of Western-focused works. Particularly interesting is the insight given into the highly pluralistic Asian context, which Kischel calls ‘a true “paradise” for comparative lawyers’ (p 677).Footnote 5

The book provides an in-depth description of the current state of the methodological framework in comparative law. Fundamentally, according to the author, there is no ‘one-size-fits-all’ method (p 87). In truth, the vast number of working techniques in comparative law are very perplexing, and this creates difficulty in meeting the needs of comparative lawyers. According to Kischel, voices in the methodological debate (or rather, ideological conflict)Footnote 6 basically fall into two groups: the proponents of a functionalist, rule-oriented approach, which restricts comparative research to official law, and the ‘culturalists’, whose position has emerged as predominantly critical and only somewhat constructive towards positivist and utilitarian functionalismFootnote 7 (p 94–101). The differences between the opposing camps appear insurmountable.Footnote 8

Next, Kischel discusses alternative methods, such as legal formants, Axel Tschentscher's dialectics, economic analysis of law, Alan Watson's legal transplants, and statistical comparative law (p 102–152). Interestingly, he seeks to reconcile the allegedly contradictory methods. His own ‘critique of the critique’ results in the formulation of a practically-orientated contextual comparative method,Footnote 9 neither functionalist nor culturalist, but one which can be considered as supplementary or corrective to functionalism (p 88–90): ‘the basic mindset of the functional method can be approved without reservation’ (p 173). Indeed, functionality mainly serves as a foundation for comparison – a search engine for finding elements to compare. It was designed to free the researcher from biases derived both from the conceptual framework of his or her own law, and from any extra-legal factors. Kischel claims that the researcher's desire to create a set of radically sterile conditions of comparison is unrealistic.Footnote 10 In addition, the functional method is not well suited to macro-comparison.Footnote 11 Consequently, an adjustment of the method to specific research contexts seems indispensable. To Kischel, ‘context’ is a dynamic whole consisting of characteristic features interacting with each other, similar to Rodolfo Sacco's legal formants,Footnote 12 or ‘legal culture’.Footnote 13 A method, in the sense of a checklist for the researcher, is necessary but a purely abstract approach creates the risk of distancing the researcher from the reality that he or she tries to describe. Contextual comparative law corrects the exaggerations of the functional method, leaving room for engagement with real-world issues and providing feasible pragmatic solutions while remaining aware of the facts behind the law (p 173): ‘The contextual approach's positive methodological answer is hermeneutics, which asks us to try and work our way into a foreign legal system, to get a feel for its style, its atmosphere, and by doing so try to understand it in and of itself.’Footnote 14 Kischel's method is, so to speak, ‘a codified common sense’, because he takes a realistic assumption of the relevance of details, thus moving the theory closer to its object – to the legal reality it describes – but remaining aware of lawyer's own key competences and leaving the legal-cultural and legal-sociological debates aside. Historical aspects, as presented in the book, have relative importance insofar as they really have an impact on current normativity (p 222). In the words of Franz Werro, this approach realizes the mission of comparatists: ‘to discover and explore the factors that make law the way it is’, and to discover the reasons for the incomparability of laws.Footnote 15

Hence, contextual comparative law is not a reaction against functionalism and universalism. For instance, Pierre Legrand's confrontational response to the orthodoxyFootnote 16 can also be described as contextual, but Kischel's position is far less radical. It is but an enrichment of established methodology with the understanding of the contexts of various stages of comparison:Footnote 17 a new flexible hermeneutical process building on the experience of comparative scholars so far, rather than its negation. The author pragmatically argues that ‘method is not a recipe … All types of comparison, as well as every individual question always require an independent analysis and an attempt to incorporate all relevant aspects of the context’, namely those of cultural, historical, political, societal, economic, and religious nature (p 174, 220). This attitude perhaps gives rise to more questions than it answers. On their own, rules convey little information about the law, and the same is true with the context(s)Footnote 18 alone. Kischel's book serves as a reminder that comparative research is not carried out in a vacuum: it is context-bound, and it always has a particular goal to achieve with specific instruments and for a particular audience. This is particularly useful when researching non-Western contexts. Regrettably, the book does not specify what context precisely is. Indeed, according to Kischel, all the innumerable methods of comparative law (and deviations from them) are to a greater or lesser extent contextual and intuitive.Footnote 19 We are all contextualists!

Uwe Kischel's Comparative law is thus ‘an act of modesty’ (p 31–34).Footnote 20 It certainly provides no doctrinal breakthrough, yet this is not a shortcoming. This elegant book is perhaps the most comprehensive and impartial description of the world's jurisdictions so far, helping its readers to develop their own awareness of the characteristics of the world's different legal orders. Moreover, it provides an insight into the newest developments conditioned by technological change. Kischel's holistic approach makes the methods of comparative law the most important topic of his work. The book insightfully examines the main ongoing methodological debates among the widely accepted methods of comparative law. Kischel's own contribution to the heated methodological debate is only one of many proposals, which are all treated equally.

Secondly, the author is sensitive to the variety of modern jurisdictions, not only paying attention to the dominant Western narrative on law, but giving voice to non-Western contexts as well. The book aims to emphasize the complexity of the world's legal landscape and its entanglements;Footnote 21 it is not confined to modern state jurisdictions, but refers also to the phenomenon of the law beyond the state. It also appears clear that legal hybridity is fast becoming the rule, not the exception. Kischel offers a critical assessment of the perplexing macro-comparative theories of legal families, systems, and legal groups by arguing that ordering and classifying the object of study is virtually useless – ‘a purely theoretical attempt at categorization which serves no concrete purpose’ (p 31) – if it is not done for didactic purposes.

Thirdly, in contrast with the most recognized overviews of comparative law so far, the book does not represent a purely private law point of view. This is particularly important in light of methodological debates, which are competently explained and illustrated by examples from various fields of law. It is indeed uncommon among comparative law handbooks to present such an overview, except for collective works. The choice of topics demonstrates that comparative legal theory and methods are, by their nature, meta-disciplines for which the division according to fields of law is insignificant: ‘the suggestion that comparative law plays a smaller role outside of private law … is a rumour which is as false as it is persistent’ (p 34).Footnote 22 This argument is critical of the traditional taxonomy of world's jurisdictions, which are changeable and dependent on the legal domain and perspective of examination (p 208–209). The author thus captures the truly general position of comparative law among legal doctrines. In addition, he sees no major difference between the methodology of macro- and micro-comparison, which present ‘a continuum of increasingly abstracted and “typified” comparisons’ (p 10).

Kischel is epistemologically optimistic,Footnote 23 as he avoids methodological perplexities and exposes the overly ambitious requirements that comparatists impose on their discipline. His admirable scholarly undertaking is reminiscent of Phileas Fogg's journey in Around The World in Eighty Days,Footnote 24 in that it seems hardly possible. Yet Kischel manages to discuss not only the grand topics but also a myriad of selected topical components: the bar exams in the USA (p 278–279), remnants of socialist thinking in Eastern Europe (p 538–539), constitutional protection of Indian law in Latin America (p 613–615), witchcraft in Africa (p 659–661), and the variety of Indonesian adats (p 778–780), to cite but a few. It is a journey across comparative law that is definitely worth taking.