‘Comparative Law as a Method of Knowledge Production‘

Interview with Heinz Mohnhaupt

The essays brought together in this recently published collection (Studien zur europäischen Rechtsgeschichte) explore comparison as a method of knowledge production from the perspective of legal history. Written by Heinz Mohnhaupt over the last three decades, they throw light on its – today largely forgotten – historical dimensions. Based on a close reading of sources,

Mohnhaupt examines the central problems and key authors of comparative scholarship from the Late Middle Ages through the Enlightenment debates on natural law to the codification movement of the 19th century. In this interview, the author talks about how investigating the comparative method enables us to gain an overview.

Mr Mohnhaupt, your recently published volume is entitled ‘Comparative Law as a Method of Knowledge Production‘. Can you give us some details about it?

As the subtitle ‘Historical Perspectives’ shows, my focus is above all on the historical dimension of comparative work. This dimension determines the juristic and extra-juristic topics of the individual essays; topics that lead towards modern comparative law and thus also enable a diachronic ‘comparison’, both historical and current, of ‘knowledge’ specific to its time: what was being compared, when and why? In the 17th and 18th centuries, for example, comparative law was modelled on comparative anatomy.

Viewed through the lens of the history of science and epistemology, it appears that nowadays there is hardly any discipline in the areas of law, humanities and natural sciences that, generally speaking, does not claim to be carrying out comparative studies and thus adds the moniker ‘comparative’ to its title.

This, too, shows that the pluralisation and differentiation of scientific disciplines and the increasing tendency to further divide fields into sub-disciplines complicate both theoretical and practical work. A strategy of comparison can – and should – help re-establish an overview of currently isolated fields and explore possibilities of cooperation and cross-fertilisation. This also applies on the whole to the numerous specialised fields in law.

From the perspective of legal history, are there re-occurring themes that can help us identify commonalities?

The philosophical and sociological definitions of ‘comparison/comparatio’ – both current and historical – follow the same approach in that two objects are ‘held one against the other’ (from Christian Thomasius, 1709) and observed with respect to their mutual relationship in order to gain insights about whether they are ‘the same, similar, unlike, different’ and so on. As a rule, the most general terms for comparison stem from ‘uniform concepts’. They become apparent in two areas: one focus of historical comparative law is on determining legal differences for the purpose of unifying them and so achieving the best possible legislation and science. This was the case, starting in the late Middle Ages, above all for the possibilities to harmonise Roman Canonical Law with local Particular Law. The ideas of equality and enlightened universalism embodied in the concepts of 18th-century Natural Law attempted to consolidate law in systematic codification. It did so on the basis of comparison, both with regard to private and to constitutional law in the 18th and 19th centuries. The ‘notitia rerum publicarum’, or comparison of states, in the 17th and 18th centuries served to explore the respective power potential (‘interest’) of competing states by way of comparison.

What new perspectives does comparative law offer?

The legal-historical findings resulting from the comparison of law and state in the 15th to 18th/19th centuries contained in this volume provide additional theoretical as well as practical bases for our Institute’s current direction of research. Globalisation and the expansion of research to include legal theory in our Institute’s remit automatically widened the perspective of comparative observation of the law to territories beyond established national and disciplinary borders. Taking the ‘conceptions of uniformity’ of intentions behind any historical comparison as a basis, comparison can still measure the distance of today’s world to the concepts of law, state, society and legal culture of pre-modern times.

Turning to scientific theory: is comparative law a method or perhaps even its own discipline?

The answer to this depends on the individual framing of any comparative work. To date, there is no established method or methodology for comparative law. Since the comparison of various legal systems, individual legal institutions, national or regional legal systems and legal cultures may vary, both with regard to the objectives of the comparison and the material compared, the aim may be to establish commonalities, or to define differences for the purpose of unification. This situation is reflected in the large number of debates about methodology. This is a historical finding and, at the end of the day, also means that the question whether comparative law is a discipline unto itself cannot be answered. However, in the context of ‘discipline’ it can be seen as the science of recognising and understanding foreign law and its functions. This view is corroborated by the fact that there are congresses, faculties and dedicated publications for comparative law.

How can comparative law play a part in current debates, for example, with regard to the project ‘Europe’?

Comparative law is an indispensable element of any form of legal unification. This applies in particular to current efforts to harmonise laws in various legal areas of the European Union.

Given the diversity of legal cultures and historical conditions, however, we must establish whether a comparison for the purposes of harmonisation is best carried out by way of comparative interpretation, legislative adaption or transposition, jurisprudence, or an analysis of language and terminology. To achieve this, historical experience is an indispensable prerequisite.