From The Law and Politics Book Review

Vol. 9 No. 1 (January 1999) pp. 18-20.

 

FOREIGN LAW & COMPARATIVE METHODOLOGY: A SUBJECT AND A THESIS by Basil S. Markesinis. Oxford, England: Hart Publishing, 1997. 479 pp. Cloth $90.00. ISBN 1-901362-03-5.

 

Reviewed by Albert P. Melone, Department of Political Science, Southern Illinois University at Carbondale. Email: Melone@siu.edu.

 

 This book is a collection of the author's previously published articles and lectures. Each of the twenty chapters with a useful index at the end of the volume focuses on the virtues of employing comparative methods to analyze substantive legal problems. One chapter is written in Italian, one in German, and one in French.

Basil Markesinis is Clifford Chance Professor of European Law at the University of Oxford and founder/director of the Oxford Centre for the Advanced Study of European and Comparative Law. The author holds a chair at the University of Leiden in the Netherlands where he directs a program in comparative law. He is also a Bencher of Gray's Inn.

This tightly packed tome is an unabashed attempt by the intellectually partisan author to convince English judges to use foreign material in their decision making. Markesinis is convinced that looking to foreign authorities in both common law and civil law jurisdictions provides important guidance in finding solutions to vexing legal problems. In this sense, the author makes a case for the practical application of comparative methods.

Many chapters deal with the law of contracts and torts and Markesinis demonstrates how and why, for example, the German approach to privacy questions is superior to both the U.S. and English approaches. Along the way, the Oxford don of thirty years persuasively argues that the civilian and common law systems are much more alike than frequently thought. Markesinis argues that continental judges employ the reasoning of previous cases and are less restricted by statutory wording than is often thought the practice. Then, too, common law judges will occasionally apply the reasoning of foreign courts and, contrary to the biases of most English judges, they may even refer to and adopt the prescriptions of legal academics to the settlement of actual disputes. Global integration and the Europeanization of English law are aiding the general tendency toward systemic similarity. This is being accomplished in large part through the domestic application of international norms expressed by the European Court of Justice and the European Court of Human Rights. In brief, Markesinis reinforces what is slowly becoming common knowledge: the differences between common law and civilian systems are greatly exaggerated and, indeed, they are tending toward convergence.

Some readers may find the author's attention to the details of private law rules and analysis somewhat tedious. Yet, careful legal analysis is necessary because the author views the comparative approach as eminently case-related. Markesinis is interested in demonstrating how a comparative approach is useful to the bench and bar in settling real life disputes. He wants to convince English judges in particular that they ought to consult foreign sources when stare decisis is unavailable or unwelcome as a source for the settlement of cases before them. Along the way, he warns, that yes, for example, German jurists unlike the English tend to proceed from the abstract to the concrete; and though the continental approach may seem odd, it nonetheless may provide at times a superior intellectual tool in arriving at justice. The author persuasively pleads with his compatriots that English judges and barristers should consult the works of legal academics so that their reasoning may be better informed by logical, scholarly, and experiential analyses.

The author complains that one great impediment toward the adoption of comparative methodology is the monolingual education of most English jurists. Reading this book reveals that because the author has an excellent command of German, French and Italian, he is able to survey the legal documents and works of other peoples, and this makes comparative study possible. Yet, if this is a problem for the English, then this language obstacle goes double for Americans.

Professor Markesinis also laments the lack of student interest in comparative studies, this despite the obvious practical and theoretical advantages for studying law from a cross cultural perspective. For many decades, leading American political scientists have exclaimed the importance of becoming more comparative when studying judicial processes, behavior, and law. Since the 1960s, some political science graduate programs in public law have included comparative seminar topics, and there are a growing number of comparative public law panels and papers currently being presented at professional political science meetings.

Moreover, in recent years there is a growing number of published articles and books written by political scientists featuring comparative judicial politics themes. The standard textbook by Henry J. Abraham, THE JUDICIAL PROCESS, now in its seventh edition; provides an introduction to the courts of the United States, France and England. A 1995 paperback textbook by the late Herbert Jacob, Herbert Kritzer, Doris Marie Provine, Erhard Blankenburg, and Joseph Sanders describes the courts and politics in the U.S., England, France, Germany and Japan. A new American constitutional law textbook written by Donald Kommers and John Finn features sections that describe how foreign jurisdictions treat similar public law problems. On the downside, a splendid comparative constitutional law textbook by Murphy and Tanenhaus published in 1977 was dropped from the publisher's list after a short run for lack of adequate course adoptions. I think the lesson is clear. It is up to the professors in law and in political science to include comparative materials in their courses so that all subjects, including those in contracts and torts that have important public policy implications, contain comparative materials.

Finally, Markesinis is willing to consider macro-legal variables in the study of comparative law and not just narrow legal topics. To his credit, the author in the last chapter of the book treats the so-called litigation mania issue. He compares rates of litigation in the United States, England, and Germany. While he displays a laudable modesty by proclaiming that his credentials as a social scientists are limited, he nonetheless approaches the issue systematically and offers a number of interesting insights that question our collective wisdom on this subject. Contrary to a common appraisal, for example, the differences in litigation rates between England and the U.S. cannot be explained by a cultural predisposition against litigation; i.e., "to grin and bear it". Rather, much of the highly exaggerated difference in the two settings have to do with the relative cost structure of litigation; it is much cheaper for litigants to sue in the contingency fee U.S. environment than in Germany or in England where there are in place alternative functioning legal aid systems. In any event, Markesinis concludes that the overall volumes of litigation do not appear to be significantly different in the three settings, although the quantity of tort litigation in Germany and the U.S. is significantly different from England. This may be caused by court costs, procedural rules, and cultural differences. The author is also intrigued by differences in the number of judges in the three systems, and the role of juries in each.

Thus, Professor Markesinis prescribes a cross cultural approach to discern answers to pressing legal questions of contemporary interests for practicing lawyers. He also displays a willingness to examine questions of inherent interest to social scientists that have a professional obligation to seek scientific explanations for systematic differences.

This book deserves attention by political scientists who are interested in studying how policy innovation and diffusion of ideas take place. Further, the author provides an interesting account of how one comparativist has attacked the problem of professional parochialism in his homeland. Because the law is intertwined with economic and political integration, I think it is highly likely that history will vindicate the position of Professor Markesinis. Though political scientists in the United States face this same difficulty with less professional resistance than do the lawyers in England, our problem is nonetheless similar. This book warrants serious attention.

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