Core Questions of Comparative Law.

Vol. 15 No.7 (July 2005), pp.607-608

CORE QUESTIONS OF COMPARATIVE LAW, by Bernhard Grossfeld (translated by Vivian Grosswald Curran). Durham, NC: Carolina Academic Press, 2004. 282pp. Paper. $35.00. ISBN 0-89089-737-9.

Reviewed by Susan M. Sterett, Department of Political Science, University of Denver. Email: ssterett@du.edu .

Bernhard Grossfeld is Professor of Law at the University of Munster, and he has written on commercial and international law. He has spent time in American law schools, including studying at Yale and teaching at NYU. He is well-situated to contemplate questions of comparison. CORE QUESTIONS OF COMPARATIVE LAW is a wide-ranging meditation on the possibilities of translation and barriers to it in law, exploring dimensions of language, numbers, religion, and concepts of time.

Grossfeld’s is a work of general jurisprudence within a continental tradition, not focused on particular legal questions. I ask rather more mundane questions than does Professor Grossfeld, and I asked myself what he understood the point of comparison to be. To some political scientists, the point is to explain the emergence of different rules or legal regimes. To others, it is to evaluate a general hypothesis about the functions of courts or the mobilization of rights under different conditions. For some lawyers, it is to contemplate borrowing legal rules to find “the best” rule across cultures. Grossfeld has the latter in mind.

Professor Grossfeld’s wide-ranging illustrations borrow from the Old and New Testaments (e.g., pp.59-60), from Shelley’s (p.246) and Goethe’s poetry (e.g. pp.60-61), and from statements from Eleanor Roosevelt. He uses these statements to illustrate profound differences between cultures, which he would argue makes the enterprise of comparison dubious. If Westerners have a linear concept of time and Easterners have a non-linear concept of time (pp.210-211), how can we talk to each other about legal rules?

The question illustrates an assumption embedded in the book. Because Grossfeld reaches broadly in scope, he treats cultures as internally homogeneous and unchanging: Westerners do things one way, Easterners another; the Chinese with one concept of writing as a result of physical crowding, “we” with another (pp.171-173). Judeo-Christian religions have a universal sense of order as a result of having one god (p.232). Cultural anthropologists have called this approach to culture into question. If it ever operated, it is hard to see how it does today, with consultants flying around the world to design commercial legal structures and constitutions. Furthermore, forces of change across cultures can bring similar results: factory wage labor works on a different concept of time than agricultural work, and that is as true in China today as it was in nineteenth century England. This point seems particularly worth attending to with the supranational forces of production that, for example, press the Chinese toward a regularized and [*608] predictable administrative enforcement mechanism for intellectual property law.

Differences in approaches to academic work can be a matter of intellectual taste: the elegance of addressing broad themes, such as religion and time, could be appealing enough to make up for the lack of discussion of real legal issues—who supports addressing them, how they are addressed, and how that changes over time and across countries. However, it is striking to see a text on problems of comparison (as in borrowing of law) when the European Court of Human Rights regularly addresses whether or not to allow differences among countries on human rights questions, the English incorporate supranational human rights law into their own law, and the European Court of Justice works on harmonization. In addition, transnational corporate lawyers blur legal boundaries all the time. While borrowing legal rules from one country and inserting them into another is unlikely to have the expected effects, I would lean more toward a political analysis, one that looks at domestic and transnational actors and how they interpret legal rules and the resources they have to make their interpretations stick. Professor Grossfeld does briefly note that it is within Europe that borrowing is likely to be most effective, but he argues that this is so, because of a common family of languages and a shared geography (p.240). Perhaps analysis at that abstract level could be helpful to those interested in general themes in jurisprudence, who may be less interested in the “who what where” of the real changes that are happening around the world. Grossfeld’s concern is simply not to illuminate what the European Court of Justice has meant for transformation, or why asylum policies might converge even apart from formal enforcement. But it is in those changes that comparison comes to life.

In the end, Professor Grossfeld concludes that people are fundamentally the same “deep down” (p.239), which makes the enterprise of comparison possible. Although there are some intriguing issues embedded throughout, I would not recommend this book to comparative law scholars engaged in traditional political and legal research.

*************************************************