Abstract
Appreciating each legal culture according to that culture’s own perspective implies a readiness to concede that the standards by which one measures law and legality in one’s own culture need not be universally valid, and that the acculturation one has received in one’s own system colors and limits one’s vision and understanding. Immersion comparison need implies the need to be open to all differences beneath the surface, and even in spite of surface similarities, as well as the possibility of differences at the most fundamental level. We struggle today with deciding if laws and legal arguments should be gender and color-blind, at the risk of failing to validate circumstances and characteristics unique to women and racial minorities. Should laws and legal arguments make gender and color distinctions, or perpetuate dangerous stereotypes of inequality in that manner? Those legal theories, such as feminist and critical race theory, that have brought these issues to the attention of American law schools, share origins of marginalization, exclusion and exile with comparative law and with the émigré-comparitists. They do not only emanate from, and reflect, marginalized populations, but also generally suffer from marginalization within the academic curriculum of law schools. The insights they have provided into the constitution of our legal system stem in part from the greater facility that an outside observer may have in detecting features of a legal culture so entrenched and unquestioned as to be taken for granted by the insiders.
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Notes
- 1.
This last point is especially important in areas of the law in which practical results that seem the same in fact are not, because of profound differences in the respective legal systems that amount to highly different results, despite superficial appearances to the contrary.
- 2.
For a study of the experience of exile for intellectuals from Hitler’s Europe, including an analysis of the impact on refugees of loss of native language, see Donald Peterson Kent, The Refugee Intellectual (1953). For a poignant description of Rabel’s marginalization in the United States, see Großfeld & Winship, “Der Rechtsgelehrte in der Fremde,” 183–200 in Der Einfluß, especially the subsection entitled “Wir wußten nicht, wer er war,” at 189–90. Rabel was able to obtain only the position of Research Associate, although younger scholars who had emigrated earlier fared better.
- 3.
Cf. Vilem Flusser, Bodenlos: Eine Philosopische Autobiographie 252 (1992). Flusser’s exile was involuntary at first, as he emigrated to Brazil as a refugee from Hitler. He describes his initial alienation as changing into a freedom peculiar to the migrant, and he presents the nomadic existence as philosophically desirable because perpetuating continual transformations in perspectives. See also Flusser, “Interview, Graz, 1990,” in Zweigespräche . Interviews 1967–1991 (1996); and Gertrude Stein, An American in France (1936). (The point of having roots is to take them with one.)
- 4.
See Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (1996) (The post-cold war world will see conflict among political ideologies give way to conflicts of cultures, with culture defined in part in terms of ethnic homogeneity.); and Gibson & Caldeira, “The Legal Cultures of Europe,” 30 Law & Soc’y Rev. 55, 80 (1996) (“we fully expect that differences in legal cultures will play an even greater role in the ways in which EC law gets implemented within each of the member states.”)
- 5.
See [J.H.H. Weiler’s excellent recent article, “Does Europe Need a Constitution? Reflections on Demos, Telos and the German Maastricht Decision,” 1 Eur. L.J. 219 (1995)], for a most thoughtful and subtle handling of this question in the context of the European Union. Weiler posits that community and belongingness must imply exclusion, yet advocates full freedom of cultural diversity in the nations of the EU because of the apparent widespread depth of the human longing for both cultural uniqueness and group belonging. The result need not, in his view, be a sacrifice of civil and political rights of foreigners within the various nation states. It will be, rather, a European Union that tolerates cultural and ethnic diversity while standardizing political rights, and that separates the ideas of nation and state. See also George F. Kennan, At a Century’s Ending: Reflections 1982–1995, 11 (1996) (attributing the problems of the United Nations to its failure to distinguish between nation and state). Cf., Legrand, “Legal Traditions in Western Europe: The Limits of Commonality,” in R. Jagtenberg et al., Transfrontier Mobility of Law 67 (1995) (Loss of pluralism in Europe is necessary price of integration).
Cf. Rodolfo Sacco, in Legrand, supra n. 48, at 949 (“[T]he comparatist’s teaching necessarily favors some values. But only the comparatist who cheats establishes in advance which values will be prioritized.”) For a nuanced, complexity-welcoming approach, see Großfeld, supra n. 99. Großfeld’s comparative approach strikes me both as entirely appropriate and highly humane. He recommends building bridges by appreciating commonalities among different legal cultures, prefacing his remarks, however, with a discursus on the need for comparatists to search for reality, rather than for what their particular cultures and training have prepared them to expect to find. His emphasis on commonalities emanates from a humanistic tradition fortified, I suggest, by the effect of the holocaust on contemporary legal culture, and on German legal culture in particular. His caution against complacently confusing what we see with reality seems to me to provide a theoretical component that the émigré comparatists tended to neglect or at the least to leave unarticulated. The beauty of approaches such as Großfeld’s in my opinion is that they tally with what I see as the goal of comparative legal analysis, and, on another level, of all legal analysis: transmuting and translating the unknown, the different, the other into the familiar. See also Sturm, “Sameness and Subordination: The Dangers of a Universal Solution,” 143 U. Pa. L. Rev. 201 (1994) for an excellent discussion of the dangers of insisting on sameness as a predicate for judicial inquiry; and [Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (1990); Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987); and Catharine MacKinnon, Sexual Harassment of Working Women (1979)].
- 6.
Cf. Rodolfo Sacco, in Legrand, supra n. 48, at 949 (“[T]he comparatist’s teaching necessarily favors some values. But only the comparatist who cheats establishes in advance which values will be prioritized.”) For a nuanced, complexity-welcoming approach, see Großfeld, supra n. 99. Großfeld’s comparative approach strikes me both as entirely appropriate and highly humane. He recommends building bridges by appreciating commonalities among different legal cultures, prefacing his remarks, how ever, with a discursus on the need for comparatists to search for reality, rather than for what their particular cultures and training have prepared them to expect to find. His emphasis on commonalities emanates from a humanistic tradition fortified, I suggest, by the effect of the holocaust on contemporary legal culture, and on German legal culture in particular. His caution against complacently confusing what we see with reality seems to me to provide a theoretical component that the émigré comparatists tended to neglect or at the least to leave unarticulated. The beauty of approaches such as Großfeld’s in my opinion is that they tally with what I see as the goal of comparative legal analysis, and, on another level, of all legal analysis: transmuting and translating the unknown, the different, the other into the familiar. See also Sturm, “Sameness and Subordination: The Dangers of a Universal Solution,” 143 U. Pa . L. Rev. 201 (1994).
- 7.
See Balkin, “The Footnote,” 83 N.W.U.L. Rev. 275 (1989) (Shift over time from formerly liberal to currently conservative political valence of strict judicial scrutiny of civil rights, and judicial deference to congressional acts in area of economic rights.); and Balkin, “Ideological Drift and the Struggle Over Meaning,” 25 Conn. L. Rev. 869 (1993). See also Rawls, (Legal bases can be transitory).
- 8.
See e.g., Erich Fromm, Escape from Freedom (1967); and Erich Fromm, The Sane Society (1955).
- 9.
See Minow & Spellman, “In Context,” 63 S. Cal. L. Rev . 1597, 1630–31. Indeed, as Steven Winter has pointed out, the postmodernist predicament is neither nihilism nor relativism, but “too many [foundations) with .. . a resulting profusion of meaning … lead[ing) to problems of decidability .” See Fromm, supra n. 148, on the irreconcilable human desires for freedom and security. See also Giambattista Vico: “Principi scienca nuova,” in Opere, ed. Fausto Nicolini (1953) bk. I, XLVII at 452 (“The human mind naturally tends to delight in the uniform.”) quoted in Pierre Legrand, (manuscript on file with the author); and Goodrich, supra n. 4, at 20 (typically, the English doctrinal premise has been that “inconsistencies and contradictions in [the common law] are quite simply unthinkable, they are …failures of understanding and not of law”); and Gordley & Mattei, “Protecting Possession,” 44 Am . J. Comp. L. 293 (1996) (for an illustration in the area of property law of legal rationalizations in Germany, France and England to avoid acknowledging such “failures of law”).
- 10.
See Sturm, on the precariousness of depending on findings of sameness (“Those who make and enforce the rules can determine when to expose and act on the difference that we knew was there all along.”); de Varennes, at 111(governmental impositions of an official language may be motivated by goal of treating all citizens equally, but result in exclusionary discrimination). See also Minow, “Interpreting Rights: An Essay for Robert Cover,” 96 Yale L.J. 1860, 1871 (1987) (Describing the danger of “fitting women’s claims, for example, into an equality framework that makes sameness to man a prerequisite [because this] may distort or deny the importance of differences.”); MacKinnon, at 4 (differentiation as a distinct concept from equality); and Colker, at 1033 (proposing that courts require evidence of subordination for a prima facie case of race or sex discrimination, and that evidence solely of differentiation be deemed insufficient for a prima facie case.).
- 11.
Nussbaum, “Valuing Values: A Case for Reasoned Commitment,” 6 Yale J.L. & Hum. 197, 208 (1994).
- 12.
Cardozo L. Rev. 1587, 1590 (1988) (far from being unconcerned with ethics, postmodernists as insist on the ethical). My own view is somewhere between Cornell’s and Nussbaum’s. I do not see postmodernists as refusing the difficulties and disturbances of complexity when they decline to judge the other. My sense is, rather, that, paradoxically, while claiming to reject absolutism, they approach the issue of judgment in an absolutist manner, and conclude that judgment lacks legitimacy because it cannot be derived logically from postmodernist premises. The irony here lies in postmodernism’s inability to espouse its own tenets, for, as Winter writes in defense of postmodernism, “[i]t is … the insistence on … the absolute that is both nihilist and profoundly antihumanist.”
- 13.
But cf. Schlag, “Values,” 6 Yale J.L. & Hum. 219, 225 (1994) (“ ‘(V]alues’ are the secular equivalent of God-they are the continuation of theology by other means.”) Cf. also Emmanuel Levinas’ analysis of charity and justice: “Does not the essential difference between charity and justice come from the preference of charity for the other, even when, from the point of view of justice, no preference is any longer possible?”
- 14.
Nussbaum, id. at 206. More cautiously optimistic is Changeux, who believes that the mutual impenetrability of cultures impedes the possibility of universals in ethics. Along Kantian lines, however, he states that “the urge to be ethical is a human universal, and that, therefore, ethics proceeds from the very fact of society.” Changeux, supra n. 14, at 216. Cf. Habermas, “Struggles for Recognition in the Democratic Constitutional State,” in Multiculturalism, 107, 125–26 (Amy Gutmann; ed. Shierry Weber Nicholsen, trans. 1994) (“What sets off the battles is not the ethical neutrality of the legal order but rather the fact that every legal community and every democratic process for actualizing basic rights is inevitably permeated by ethics.”)
- 15.
Cf. Taylor, “The Politics of Recognition,” in Multiculturalism, id., at 69 (“[I]f the judgment of value is to register something independent of our own wills and desires, it cannot be dictated by a principle of ethics. … One doesn’t, properly speaking, make judgments that can be right and wrong; one expresses liking or dislike, one endorses or rejects another culture. But then …the validity or invalidity of judgments [is no longer the question]”).
- 16.
It is in this sense that George Steiner writes that “[t]here are no translations.” Steiner, supra n. 6, at 270. Steiner nevertheless also believes that there are great translations . He defines the latter as “not an equivalence, for there can be none, but a vital counterpoise, an echo, faithful yet autonomous, as we find in the dialogue of human love. Where it fails, through immodesty or blurred perception, it traduces. Where it succeeds, it incarnates.”
- 17.
Julia Kristeva has even analyzed an irreconcilable plurality of discourses within each individual. She applies psychoanalytic theory in a fascinating study in which she concludes that the rejection of the other emanates from the discomfort people feel with a sense of foreignness within themselves. According to Kristeva, the path to accepting the different in others lies in acknowledging the strangers within ourselves. See Kristeva, at 1, 191. (“Delicately, Freud does not speak of foreigners: he teaches us how to detect foreignness”); at 82 (“[T]he relationship with the other, taken at the level of our civilization, is a complication of our relation ship [with the other in ourselves].”). The French philosopher Vladimir Jankelevitch was of the view that “it is minimal otherliness which engenders the most inexpiable hatreds, feeds the most tenacious rancors ....”; Vladimir Jankelevitch & Beatrice Berlowitz, Quelque part dans l’inachevé 62 (1978).
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Curran, V.G. (2015). Obligations III: Cultural Immersion, Difference and Categories in US Comparative Law. In: Broekman, J., Catá Backer, L. (eds) Signs In Law - A Source Book. Springer, Cham. https://doi.org/10.1007/978-3-319-09837-1_29
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