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13. Ewald - The Jurisprudential Approach to Comparative Law

Title: The Jurisprudential Approach to Comparative Law

Author Information

  • Author: William Ewald

  • Source: The American Journal of Comparative Law, Vol. 46, No. 4 (Autumn, 1998), pp. 701-707

  • Published by: American Society of Comparative Law

  • Stable URL: JSTOR

  • Accessed: 28-05-2015

Relationship Between Legal Philosophy and Comparative Law

  • Relevance: Studying comparative law (all legal systems across time and places) is intertwined with legal philosophy, as it should prompt philosophical reflection while also testing philosophical theories.

  • Current Disjunction: There exists a separation where legal philosophy shows little interest in foreign law and comparative lawyers do not engage with legal philosophy, leading to a disconnect in both fields.

  • Consequences: This disconnect results in confusion and ineffective practice within comparative law, prompting a reevaluation of the methodologies applied.

Methodological Approaches in Comparative Law

Contextualist Approaches

  • Overview: Law is seen as intertwining with society; thus, to study a foreign legal system, one must consider its social function and context (law in action).

  • Notable Figures: Montesquieu, Savigny, Marx, Jhering, Richard Posner.

  • Core Beliefs:

    • Law reflects its social functions, independent of strict legal categories.

    • Laws reveal the underlying social structures of a society.

Textualist Approaches

  • Overview: Emerges as an alternative to contextualism, focusing on law as distinct from its social context, emphasizing legal texts over sociological data (law in books).

  • Critique: Alan Watson's findings suggest that whole bodies of law have been transplanted unaffected by societal changes, challenging contextualist assumptions.

Ewald's Intermediate Theory

  • Position: Ewald seeks a middle ground between textualism and contextualism.

  • Central Argument: Both theories provide external perspectives on law. A better understanding of foreign legal systems requires insight into the internal experiences and thoughts of legal practitioners.

  • Intellectual Standards: Advocates for a focus on the conscious legal reasoning within different cultures rather than observing law as merely enacted or recorded.

Critiques of Externalism

Examining humane understanding, particularly through the lens of historical animal trials, reveals that a comprehensive understanding of law necessitates insights that extend beyond mere sociological statistics or the analysis of legal texts. These animal trials, which were historically conducted as a form of justice for perceived wrongs committed by animals, challenge conventional notions of legal personhood and agency. They underscore the complexities inherent in the legal systems of the past, where societal values and cultural beliefs influenced the procedures and outcomes of legal proceedings. Furthermore, such cases reveal how legal practices can reflect moral and ethical considerations within a society, suggesting that law cannot be fully understood without considering the cultural and philosophical underpinnings that shape it. Therefore, an effective study of law, particularly in a comparative context, must incorporate these dimensions to grasp the historical and contemporary significance of legal principles.

  • Objective: Fundamental understanding of foreign legal philosophy involves grasping its principles, arguments, and beliefs from within the legal culture.

Legal Philosophy and Comparative Law Interconnection

  1. Yield of Comparative Law: Legal philosophy must engage with findings from comparative law studies.

  2. Design of Comparative Law: Legal philosophy is crucial for establishing methodology to interpret foreign legal systems appropriately.

  3. Nature of Law Theory: Study not restricted to law as it pertains to justice and philosophy but may also explore varying factors like economics or societal norms.

Addressing Objections to Comparative Jurisprudence

  1. Utility: Concerns over practical use versus black-letter law; require extensive empirical studies to validate comparative jurisprudence's usefulness.

  2. Methodology: A need for a systematic approach to studying foreign legal systems; questions around resolving conceptual relativism.

Conclusion

  • Goal: Understanding how ideas manifest in a legal system provides unique insights that enrich the comparative study of law.