Legal Orientalism

Fifty years ago comparative law was a field in search of a paradigm. In the inaugural issue of the American Journal of Comparative Law in 1952, Myres McDougal remarked unhappily, “The greatest confusion continues to prevail about what is being compared, about the purposes of comparison, and about appropriate techniques.” In short, there seemed to be very little in the field that was not in a state of confusion. Two decades later, referring to McDougal’s bleak assessment, John Merryman saw no evidence of progress: “few comparative lawyers would suggest that matters have since improved.” And only a few years ago, John Langbein suggested that comparative law remains in dire straits: “If the study of comparative law were to be banned from American law schools tomorrow morning, hardly anyone would notice.” A certain amount of hand-wringing is thus de rigueur in any piece of comparative law scholarship that wants to be viewed as part of the solution rather than part of the problem. At the risk of perpetuating the notion that comparative lawyers suffer from a “Cinderella complex, “I too begin with the obligatory observation that comparative law remains a relatively underappreciated field in the legal academy. My main purpose, however, is to join other recent voices seeking to invigorate the field by proposing new avenues of inquiry.