A Review of Comparative Law

Robert Leckey

Dean and Samuel Gale Professor of Law, Faculty of Law, McGill University, Canada

https://www.mcgill.ca/law/about/profs/leckey-robert

https://ssrn.com/author=947921

I was flattered and excited when Carl Stychin, one of the editors of Social & Legal Studies, approached me about writing the first entry in the Journal’s new series of occasional reviews of a field. It was when I got down to work that panic set in. There are of course numerous mappings of comparative law as well as impressive collections, such as The Oxford Handbook of Comparative Law. What would I add?

Carl calmed me by assuring me that my paper could be idiosyncratic and personal and need not purport to be exhaustive. I might draw on my position as a scholar in a faculty where comparative law is not an elective course or a methodology to take up from time to time, but a way of being. Specifically, the McGill Faculty of Law – I was not yet dean, but director of the Paul-André Crépeau Centre for Private and Comparative Law – offers students in its flagship double-degree program a legal education that crosses jurisdictional boundaries and integrates the traditions of the common law and civil law. Increasingly, we integrate elements of Indigenous legal traditions too. In our shop, the question is not where to find comparative law, but rather whether there are places where it isn’t.

All my research is comparative to a degree, including prior publications in this journal relating to lesbian parents and to the legal treatment of cohabitation. Indeed, I have sometimes felt that comparative law is the water and I am the fish who doesn’t realize what he is swimming in. Confidentially, when my then- dean, Nicholas Kasirer, suggested that I submit my book Contextual Subjects: Family, State, and Relational Theory for the grand prize awarded every four years by the International Academy of Comparative Law, which it won in 2010, I hadn’t thought of my book as a work of comparative law. In any case, I eventually surmounted my writer’s block and set to work on the review of the field for Social & Legal Studies.

Here I’ll highlight three elements of the article. One is my effort – admittedly imperfect – to be more precise about what people mean when they refer to comparative law. I enumerate 13 activities or understandings. Examples are invoking foreign sources during litigation, basing new law for a jurisdiction on another’s, and studying multiple legal systems to deepen understanding of legal ordering. Debates can go awry if proponents or opponents of comparative law refer to different things. My sense of comparative law as encompassing all my teaching and research might have sensitized me to the context-specificity of the activities of scholars who dip into comparative law for particular purposes.

Another element is my identification of the intensity of discussion. Some comparatists are occasionally bossy, contending that all or at least most colleagues should adopt their preferred approach and that doing so would advance the field. Methodological discussions sometimes take the form of ‘debates’, as if functional and cultural approaches were ‘sides’, one of which might ‘win’. As I remark in the article, the top-down desire to impose order and set direction for the field expressed by a few scholars is ironically at odds with an avowed delight in pluralism.

The final one is my observation that some of what I find most stimulating in comparative work does not depend on that work’s bringing together of legal materials from multiple places. Thus attention to law as discourse, to the relationship between law and its surrounding society, and to the contingency of particular policy choices – the bread and butter of this Journal’s readers – are not distinctive to comparative law. Comparing may provide fresh insights and deepen understanding, but I suggest that the distinctiveness of comparative law as an intellectual endeavour – a point of intense attention for some – is somewhat of a red herring.

Naturally, some will disagree with much in my idiosyncratic review of the field. Perhaps those who do may at least find that my enumeration helps them to clarify their lay of the land. My overall hope is that I have not squandered the opportunity offered me by the Journal to sharpen points under discussion, to highlight exciting work afoot, and to identify challenges for the field’s future.

 

Robert Leckey is the author of ‘Review of Comparative Law’ (2017) 26(1) Social & Legal Studies 1–22.  Robert is the Dean of the Faculty of Law at McGill University, and has research interests in constitutional law, family law and comparative law.

Image credit: CC0 Public Domain, available via Pixabay at https://pixabay.com/en/abstract-art-circles-colorful-1303775/

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