Foreword: Compared to What?
10 Pages Posted: 31 Oct 2003
If the study of law is inherently comparative, the only question is whether the comparisons are to be implicit and ineffable, as they largely are now, or explicit and subject to serious investigation. There is no option not to compare: there is only the option to pretend not to compare or to compare inarticulately. Of course, some subjects can be compared to others within the same legal system, but others cannot be. Law is the last of the social subjects to be studied and taught parochially for the most part, but it is hard to believe that this state of affairs is stable over the long term.
Herbert Bernstein was a superb lawyer who lived by firmly held canons about how comparative law was to be done. Bilingual, bicultural, and bilegal, he had a cultivated skepticism of the two traditions in which he had been trained. He could be amused by the foibles of his native land and those of his adopted one as well. But this critical distance never overcame his duties as a participant, as an earnest teacher and student of subjects in both legal systems.
Professor Bernstein understood that it is necessary to get down to specifics - and to get those specifics right - before intelligent comparative work in law could proceed. In an essay quoted by more than one contributor to this symposium, Bernstein called attention to misconceptions about the actual functioning of legal systems that made it impossible to judge whether German or American civil procedure was better suited to deliver accurate results efficiently in litigation. This intervention was typical of his impatience with vague generalities about law and legal systems. A tolerant man, he had little time for shortcut phrases that described the Anglo-American legal systems as "adversary" but the Continental systems as "inquisitorial."
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