Institute News - The following news item is reproduced with
the kind permission of The University of Texas School of Law.
Markesinis Releases Controversial Comparative Law in the Courtroom and the Classroom: The Story of the Last Thirty Five Years
Influential professor's ideas hailed as "remarkable"
Comparative Law in the Courtroom and the Classroom: The Story of the Last Thirty Five Years, Hart Publishing (Oxford and Portland Oregon 2003) by Basil S. Markesinis, QC, LL.D. (Cantab.), DCL (Oxon), Dr Iur. h.c. Ghent, Paris (Sorbonne) and Munich, Fellow of the British Academy. A German and Italian translation of the book will appear early in 2004.
Unlike Constitutional law or Contract law, which are core subjects and have to be studied by all aspiring lawyers, comparative law nowadays seems confined to the margins, its teachers often feeling the need the justify their existence or to re-invent an aim for their academic life. This is a double paradox. First, and not that long ago, on the American landscape one found intellectual "giants" such as Max Rheinstein, Rudi Schlesinger, and Jack Dawson (and, before them, scholars such as Roscoe Pound or John Henry Wigmore). Secondly, and more importantly, the globalization movement both in economic and cultural terms now calls for greater understanding of our neighbors and their law. So what went wrong?
In this original, deliberately controversial and, at times, disturbing appraisal of the state of comparative law at the beginning of the 21st century Professor Markesinis identifies some of the subject's weaknesses, many in his view introduced by the way its high priests chose to approach it over the last thirty years or so. He thus identifies two opposite trends which, in his opinion, have contributed to giving to the subject an air of un-reality and no practical utility-a disastrous image in an environment of "professional schools" which, moreover, are increasingly forced to call upon private funds to help them remain financially viable.
The first trend, noticeable especially in Britain, is to treat the study of foreign law as an appendage to Roman law an increasingly moribund subject dependent upon a dead language. The second (and more prevalent in the USA where Roman law has been pushed into the History Faculties) is to try and link comparative law to various types of critical legal studies and make it "trendy". According to Professor Markesinis both tendencies have harmed the subject by giving it an ever-more theoretical and unreal content and removing it from the real world of practice, banking, finance, trading, international litigation, all of which are increasingly forced to have recourse to foreign law.
In Professor Markesinis' view, the same sad results will follow if yet another, current American trend succeeds and cuts the subject off from its European origins and the current intellectual hyperactivity which the European Union has stimulated on the old Continent.
In its unusual third chapter (co-authored with Dr. Jörg Fedtke, formerly of
the University of Hamburg and now at University College London and Jon Pratter,
Foreign and International Law Librarian at the Jamail Center for Legal Research,
the University of Texas School of Law) and described by Lord Phillips, the
Master of the Rolls in England, as "remarkable", the work resorts to the growing
method of citology to suggest tentatively that those who do not heed the advice
to make comparative law "relevant", tend to get less attention from their fellow
authors and no notice from the courts.
This monograph represents a passionate call for greater intellectual co-operation and offers one way of achieving it. A co-operation between practitioners and academics on the one hand and between Common and (modern) Civilian lawyers on the other, in an attempt to save the subject from the marginalization it suffered in the 1980s and from which the globalization movement of the 21st century may be about to deliver it.
"This important new book will confirm Basil Markesinis' position as the preeminent figure bridging both the worlds of Anglo-American and Continental European law and the worlds of theory and practice. We are fortunate, indeed, to have a scholar of his intellectual breadth and international distinction on our faculty," said Dean Bill Powers of The University of Texas School of Law.
The author, the holder of the Jamail Regents Chair in Law at UT and a Fellow of five Academies (including the British Academy and the American Law Institute) brings to bear his experience of thirty-five years as a teacher of the subject in twenty-five universities on two Continents to urge the study of foreign law in a way that can make it more attractive to practitioners and more usable by judges without depriving it of the intellectual content which every comparative exercise brings in its wake.