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1997 Utah L. Rev. 657 (1997)


In the course of this conference on "new approaches to comparative law;" it has struck me as curious that so little has been said about the "old" approaches to comparative law. In such a self-conscious effort to distinguish ourselves from our predecessors, one would expect at least some articulation of distinctive criteria, if not a full-fledged manifesto of novelty. Giinter Frankenberg gave us three ideal-type identities of the comparative lawyer; David Kennedy boxed up the old approaches in his taxonomical chart. They and others have referred to the expansion of capitalist market economics and liberal democratic political structures as the materialist catalyst for opportunities to "deploy" comparative law. But while these may help explain the sources of renewed interest in comparative law, they have not on the whole addressed what makes the current examples of comparative legal scholarship "new" in approach.

To the extent that the New Approaches are able to bring us to a more critical self-awareness, they also reveal in the end a deeper and more basic continuity with "old" comparative legal studies. The value of comparative methods has always been in forcing us into sympathetic yet critical knowledge of law in another context, thereby disrupting our settled understandings, provoking us to new judgments, and demanding our response with new decisions, commitments, and actions. If comparative law does not do that, I would submit that it is hardly worth doing at all. To be sure, it requires the painstaking work of seeking to know law, language, politics, and culture in other contexts. But if comparative law is successful in this respect, there will be many more "new approaches" conferences in the future that will break with our work by characterizing it as hopelessly out of touch and that in that rupture will continue the critical tradition of comparative law of which we are a part.


Reprinted with permission of the Utah Law Review.



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