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Abstract:
Comparative law is law's cybernetics, or 'theory of messiness.' It attempts to steer through the messiness of the foreign by reordering it into the language of the familiar without betraying the original. It is needed urgently in contexts of unrecognized metamorphosis, and today metamorphoses are burgeoning in murky areas outside of law's traditional categories of either the national or the international. The less apparent, the less visibly foreign, the foreign is, the more comparative law has a task of translation involving the formation of a vocabulary to transmit new configurations that resist detection and articulation. This essay examines the centrality of translation to processes of language and meaning construction, and links translation to comparative law as a model for the study of similarity and difference, the universal and the particular.

The debate in comparative law over the relative importance of similarity and difference among legal systems has its counterpart in linguistics in conflicting views about whether commonalities among languages are fundamental or marginal. These issues situate both language and comparative law between mutually contradictory aspirations of universalism and pluralism which have stalked the evolution of both fields. Despite appearances of the ascendancy of universalism in today's world, it is not difference and pluralism that are receding, but, rather, that former domains of pluralism and difference recede, while others emerge.

Like language, inevitably imprecise and perpetually in flux, comparative law can not be frozen once and for all, to be captured for future application if only it is developed with sufficient acuity and insight. It shares what Isaiah Berlin attributed to philosophy and distinguished from the scientific: it does not carry within itself the method of its own solution, and therefore must be reinvented in each generation, destroying its own past rigidities and methods of decoding and transmitting, in order to construct a new modality of analysis, a new vocabulary better adapted to changed meaning.

Comparative law shares with language the pitfalls of miscommunication and misunderstanding, as well as the potentials of learning to see, to communicate and to shed light in that elusive, inevitable, shifting and ever-reconfiguring space that, like language, it occupies between the same and the other.

Abstract:
Decided in June, 2006, the Lipietz case marks the unofficial entry into the French legal system of a tort action for complicity in crimes against humanity. It both departs from prior, established French law and reflects numerous mechanisms by which national law is transnationalizing. The case illustrates visible, invisible, substantive and methodological changes that globalization is producing as law's transnationalization changes national law. It also suggests some of the difficulties national legal systems face as their transnationalization produces legal change at a rate that outpaces the national capacity for efficient adaptation. The challenges illustrated by Lipietz, characteristic of globalization, include identifying the presence and effects of legal transnationalization, as well as developing needed adaptations without undermining fundamental national legal values.

globalization, legal transnationalization, French law, crime against humanity, criminal law, tort law, civil law, comparative law

Abstract:
This essay offers some suggestions for comparative law’s discomfort with the Legal Origins Thesis. The Legal Origins Thesis then becomes the point of departure for a discussion of contemporary comparative law’s “existential angst.”

Legal Origins Thesis, comparative law, comparative legal methodology, comparative law and history

Abstract:
This article examines some of the challenges to understanding new, non-national legal configurations as contexts of origin color understandings and evaluations of legal standards allegedly shared across legal communities. It examines a case on assisted suicide, Pretty v. U.K., decided by the European Court of Human Rights. The case illustrates mechanisms of legal integration in the European court, followed by a process of dis-integration that occurred when the decision was reported to the French legal community. The French rendition reflected a legal community's inability to process common law information through civil law cognitive grids. The article addresses both the capacity of law to internationalize, and the sorts of comparative inquiries necessary to perceiving what lurks unseen, as the world experiences superimposed legal norms and claims, some mutually contradictory. It also discusses the peculiar relation of past to present in the establishment, evolution and transformation of legal significance. The European court engaged in decision-making affected by unspoken associations with the Nazi past that collided with the needs of a society transformed by modern medical technology. The remembering of law that this article addresses thus involves (1) recompositions of law as it increasingly ignores old borders and categories; and (2) the ongoing need to examine law's past meanings in order to understand its present incarnations and, most importantly, to imagine its potentials in our time of flux and of increasingly complex and elusive non-national legal constructs.

Abstract:
Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain examines the lives of eighteen émigré lawyers and legal scholars who made their way to the United Kingdom, almost all to escape Nazism, and analyzes their impact on the development of English law.

Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain, Jack Beatson, Reinhard Zimmermann, Nazism, comparative law, international law, Roman law, English law, British legal scholarship, émigré lawyers, émigré legal scholars, exile

Abstract:
The main thrust of this article is to suggest how legal uniformity may result in the European Union despite its Member States' encompassing the two highly distinct legal traditions of the common law and the civil law. My theory is that the defining characteristics of the civil-law legal culture, although in stark and profound contrast with those of the common-law legal system, nevertheless appear prominently and pervasively in the non-legal spheres of common-law nations; and vice versa, such that common-law legal characteristics correspond closely to elements often excluded from civil-law legal cultures, but which are included in the non-legal domains of the civil-law European Union Member States.

Conversely, the defining characteristics of civil-law legal culture not only are largely absent from common-law legal systems, but, as Peter Goodrich has demonstrated, they consciously and repeatedly were rejected by England. Nevertheless, they are prominently and pervasively present in the non-legal spheres of common-law European Union Member States. Consequently, lawyers from all of the Member States have an intimate understanding of the fundamentals of both the common-law and civil law mentalities, although they have learned to apply only one of those mentalities to legal discourse and analysis.

The progression towards legal uniformity is spawning a hybrid, homogenized legal culture from the systems of the civil and the common law that encounter each other in the new Europe. The resulting homogenization in turn fortifies uniformity, as the two distinct legal cultures are altered by their mutual encounters, adapting to the imperatives of coexistence and coalescence, and in turn reinforcing homogenization, as their acquired adaptive characteristics contribute to a further breakdown of distinctive legal attributes by processes of reciprocal influence and blending.

Abstract:
In a world in which every other country seems intent on teaching English to their youth, and in which the United States educational system does not place a high priority on teaching foreign languages, the American law student, dean and professor may doubt if foreign language knowledge is anything more than marginally helpful to law graduates. Similarly, educators at the primary school level may not be likely to assess foreign language education as warranting a greater allocation of scarce public resources.

The usefulness of foreign languages to the United States lawyer gradually has been gaining increased recognition in the profession, however. While the advantages to a lawyer of being able to communicate in the language of a client or colleague are many, the main need for our students to become fluent in foreign languages is not that they otherwise will be barred from communicating in transnational legal situations. Rather, it is the disadvantage of monolinguism, a problem that can be summarized as a limitation on the imagination.

Abstract:
Schlesinger's Common Core methodology may be a theory that can be applied fruitfully, or, rather, an irreproducible result of Schlesinger's individual interpretive talents. The Trento project also must face the challenge of whether it can realize its stated intention to reject any ideological point of departure, since that would require it to adopt Schlesinger's principles without incorporating his preference for identifying similarity over difference.

Moreover, differing contexts are relevant to analyzing the utility of any given comparative approach. The same approach can have defects in the context of United States comparative law that may not affect European comparative law; it can have defects where the comparative undertaking is to form legal norms for the European Union that may not be an impediment where the goal of the comparative undertaking is to heighten intellectual understanding for scholarly purposes.

The Trento project's objective of revealing the core characteristics of private law in the EU's Member States is not unrealistic. While the differences that separate the common- and civil-law mentalities and cultures are irreducible and incommensurable, they nevertheless are not beyond the understanding of participants of both legal systems. These differences reflect the two great intellectual discourses of all of the Member States' societies, corresponding to the fundamental characteristics of the Enlightenment and Romanticism, movements that have been integral to all of the EU Member States.

The modern challenge facing comparative law is that, just as a new generation of comparatists has unearthed differences often ignored in the past, the categories of relevance to the future may still be indistinct and in a formative stage, requiring comparatists to remain detectives of new future relevances as national, linguistic and geographical attributes are changing in valence in a rapidly altering world.

comparative law and theory, common core methodology

Abstract:
The advantages of world adherence to universally acceptable standards of law and fundamental rights seemed apparent after the Second World War, as they had after the First. Their appeal seems ever greater and their advocates ever more persuasive today. The history of law provides evidence that caution may be in order, however, and that the human propensity to ignore what transpires under the surface of law threatens to dull and silence the ongoing self-examination and self-criticism required in perpetuity by the law if it is to be correlated with justice.

This Essay presents one side, the dark side, of the history of the crime against humanity. It discusses the undermining and subversion of legal concepts resulting from their politicization, as they become subject to juridical argument, legal procedure, and judicial decisionmaking. So much has been written to promote the adoption of universal legal standards and urge adherence to international tribunals that I do not undertake an overview of the crime against humanity in today's legal order that reflects those reasons and advantages, or that balances one side against the other. Rather, I undertake to highlight the role that politics and ideology inevitably play in law. That role is visible when one examines some aspects of the modern legal trajectory of the crime against humanity. It suggests the need for vigilance in safeguarding concepts and values ever subject to subversion as ideologies drift under the frozen surface of legal texts, of the immutable language that cloaks a mutable law, enabling the mutations to occur invisibly, and to escape examination.

Abstract:
Legal scholars, lawmakers and, increasingly, the general public seem to place ever-increasing hope in the potential of law and legal theory, and of enforceable uniform international legal standards. Many appear to believe that identifying and enacting laws and a legal framework that correspond worldwide to human rights will solve the age-old problem of legalized barbarism. The historical propensity of courts, even in democratic states, to legitimate and enable racist policies provides compelling evidence that the current level of faith in law is misplaced.

This Article argues the limitations of law and legal theory, contesting the view that on their own they will have more than minimal impact on society and even on courts. No matter how good they are in conception; how correctly they embody contemporaneous understandings of universal human rights; or how flawlessly they may be phrased to connect the signifier of legal language to the signified concepts that language purports to represent, law and legal theory can only be a small part of the elements that would fashion judiciaries into a bulwark against ideologies and practices of repression.

Abstract:
There are many angles from which to perceive the contemporary holocaust-era claims. In 1997, Time magazine quoted Elie Wiesel as saying that, [i]f all the money in all the Swiss banks were turned over, it would not bring back the life of one Jewish child. But the money is a symbol. It is part of the story. If you suppress any part of the story, it comes back later, with force and violence.

Wiesel touches on two perspectives: first, what has been described as litigating the holocaust, with all that that implies about the law's questionable capacity to adjudicate issues containing vast extra-legal components; and secondly, the problematic of suppression and erasure that has pervaded the holocaust at many different levels. Suppression and erasure are recurrent and very complicated phenomena of history and historiography in general, whether perpetrated willfully or unwittingly.

They have played a particularly significant role in the context of the holocaust. The massive number of deaths yielded a terrible weight of silence, and the erasure of memory occurred in a multiplicity of ways, including: (1) viciously and cynically on the part of many who sought to hide all traces of their crimes; (2) protectively on the part of some who sought to save the lives of the persecuted; and (3) inevitably as the result of the disappearance of a world and culture destroyed beyond any possibility of resuscitation by the few individuals who survived in displacement and dispersal.