Elevating Comparative Law Discourse

I have been asked to offer an advice by the British Association of Comparative Law (BACL) to select the guest speaker for the workshop. I am an expertise in comparative law. I have been studying comparative law for number of months. Therefore, I would like to recommend Professor Pierre Legrand as the guest speaker.

Professor Pierre Legrand currently teaches law at the Université Panthéon-Sorbonne. Professor Legrand is a recurrent visitor at Northwestern University Pritzker School of Law. Every summer, he lectures on the University of Cambridge’s course in English Legal Methods. Professor Legrand holds a PhD (1999) from the Université Panthéon-Sorbonne, a PhD (1993) from the Lancaster University, and M Litt (1986) from the University of Oxford. He has a forthcoming book, titled “Negative Comparative Law (a critical conspectus on the theory of foreign and comparative research in law”, which is due publishing by Routledge in 2021.

Professor Legrand was a Rhodes Scholar at the University of Oxford. He gave seminars in comparative law on the University of Melbourne Law School’s postgraduate program for many years. Apart from holding formal visiting professorships in many universities, Professor Pierre had often taught comparative law for undergraduates in Romania and Brazil.

In his journal article titled, "What Is That, To Read Foreign Law?”, Professor Legrand takes the reader through the process a comparatist undertakes while reading a foreign law-text. In this article, he attempted to attend to and foreground the practice through which a foreign law is read. He aimed to demonstrate how the practice of reading brings meaningful existence to a foreign law.

According to him, reading a law-text comprises activity that conditions the knowledge and beliefs of a comparatist. The principle material texts of comparative law are the outcome of a comparatist’s textual critique. Such outcome also includes the result of his investigation and analysis.

Based on his observation, in order to understand comparative law, one has to understand the high level of reading required to do comparative study of law. The focus is the practice of reading, which conditions the knowledge and beliefs of comparatists. Whatever critique of a comparatist creates principle material texts of comparative law.

The core understanding of Professor Legrand is how a comparatist read, analysis and investigate and how the result of his activities become principle material. This is the main reason why Professor Pierre Legrand should be selected as guest speaker. His paper “What Is That, To Read Foreign Law?” is a testimony to his credibility, which is based on the simplest and valuable understanding of comparative law. His work is unlike the work of Mathias Siems, who discussed possible extensions to the scope of comparative law, or the work of Claudia Claudia Geiringer, who discussed cross-jurisdictional influences in structuring and interpretation of national constitutions. Mr. Siems’ and Ms. Claudia Geiringer’ work will be more suited for those who are not new to the field of comparative law.

1. School of law, ‘Pierre Legrand’ University of San Diego accessed on 17 December 2020 .
2. Ibid.
3. Ibid.
4. Pierre Legrand, ‘What Is That, To Read Foreign Law?’ (2019) 14 J. Comp. L. 290, at 290.
5. Ibid.
6. Mathias Siems, ‘The Power of Comparative Law: What Types of Units Can Comparative Law Compare?’ (2019 67(4) The American Journal of Comparative Law 861-888.

Professor Legrand’s paper has the quality and the contemporary relevance

According to Professor Legrand, reading a foreign law-text is an interpretive undertaking. There is a process, the purpose of which is to achieve a heightened awareness of the text. He presents that there is more to reading a foreign law-text, which he argues is always and already taken for granted. As such, he says that the existing view of reading foreign law-text is unexamined, which once when researched becomes unsustainable.

Professor Legrand explained the contribution of comparatists in reading and understanding foreign law-text. He did that by citing a simple medical and a non-medical case example. As a first example, he cited the work of one Annemarie Mol, an anthropologist, which concerned her four year work in a Dutch hospital observing the medical process related to atherosclerosis (AS).

Professor Legrand cited the counter–intuitive claim of Mol against the received opinion claim to highlight the value contribution of a comparatist. He cited an imaginary patient who undergoes various medical tests according to the instruction of a vascular surgeon. The surgeon after studying the test results finds the patient to be suffering from AS. According to the former counter–intuitive claim of Mol, AS did not exist until the surgeon pronounced its existence. This does not mean AS was not suffering pain and other symptoms of the disease. According to the claim, AS could not have been there if not for the surgeon who read the patient’s body and asserted AS was present in the body. Without the surgeon declaration of AS, the body had meaningless pain and calcification. With his declaration, the condition is meaningful. On the opposite, received opinion assumes that the disease pre-existed in the patient’s body before the surgeon intervention. The surgeon’s role was a subsequent role to acknowledge the disease.

That way, Professor Legrand explained that the role of a comparatist is vastly more important that is commonly understood. A comparatist can declare officially and with authority about position of a foreign law text. This is what the surgeon did, to ordain, decree or declare the disease officially and with authority law. The outsider, which in this case is the surgeon or the comparatist, declares the disease or the law. They declare the existence with expertise.

The paper of Professor Legrand indicates that law remains. It does not change. There is high level clarity that Professor Legrand brings to the thought process behind reading a foreign law-text. Professor Legrand demonstrates this role of the comparatist by citing a non-medical example in order to demonstrate the contributing that comparatists bring to the area of law. He mentioned one, Dr. Bogdan Enache, a cardiologist at the Princess Grace Hospital in Monaca. Dr. Enache gave the example of the American College of Cardiology and American Heart Association, which lowered the threshold for hypertension from 140/90 mm Hg to 130/80 mm Hg in the late 2017. This lowered threshold pushed some 31 million people to the category of patients having hypertension. Before this announcement, one John’s hypertension reading was 140/90 mm Hg. In 2018, this reading of John pushed him to the same category. Professor Legrand stated that John’s body has not change. It is the matter outside John that has changed. Such matter is the decision of the cardiologist based on the new threshold. If John relocates to another location where the reading of 140/90 mm Hg does not indicate suffering of hypertension, John will not be prescribed for a medical treatment. So, the cardiologists of the new location will not decree or declare the disease.

1. Claudia Geiringer, ‘When Constitutional Theories Migrate: A Case Study’ (2019) 67(2) The American Journal of Comparative Law 281-326.
2. Legrand, supra note 4, at 291,
3. Ibid, at 292.
4. Ibid.
5. Ibid.
6. Legrand, supra note 4, at 293.
7. Ibid.
8. Ibid, at 294.

In this light, Professor Legrand’s view demonstrates that the opinion and view point of a comparatist is unlike that of received opinion. Without an interpreter and an observer, there cannot be a law. Without the reading of foreign law-text, the components, elements or nature of the law cannot be identified.

Professor Legrand stated that a comparatist brings experience and the event of what a law is. They bring significance, sense and meaning to law. Without them, a foreign statute is an assemblage of words with no meaning. Just like the way the surgeon brought meaning to the meaningless pain as AS, a comparatist also brings meaning to a foreign statute.

Professor Legrand’s understanding of comparative law could be stated to be focused on understanding varied situations that go in the meaning and elements of a foreign law. As such, he is against functionalism, which represents the basic methodological principle of all comparative analysis of law. To him, functionalism does not bring sensitivity towards any element that is not formalised or regulated under a legal regime. It lacks critical analysis and only offers application of the idea of formalization. As such, it is a mechanistic theory that involves abstract accentuation, but does not concern understanding.

According to Professor Legrand, the “common sensical” view does not allow a reader to operate subjectively. He does not deploy free agency and does not bring fully-fledged autonomy to reading. He acts as an intitutionalised, socialised and encultured being. To Legrand, comparatist, as like the surgeon, enacts the disease as AS and brings meaning. They read foreign law-texts and give them meaning. The ascription of the meaning “operates a becoming of the text.”

The view of Professor Legrand against “common sensical” view could be said to be seen in his view against mathematisation of law. He stated that in certain cases, translation will not govern and there tends to be “overtranslation”. In this respect, he cited the example of legal origins theory, which has been the basis for the World Bank reports since 2004. Such reports show that common law countries perform better than civil law countries. Professor Legrand stated that this represents a strict computational language, which cannot account for the law complexity or convey the cultural sense of law. He focuses on bringing significance, sense and meaning to law, which the mathematisation of law cannot. Otherwise, the foreign statute will just remain as assemblage of words.

1. Ibid.
2. Ibid, at 296-297.
3. Pierre Legrand, ‘The same and the different’ in Pierre Legrand and Roderick Munday, Comparative Legal Studies: Traditions and Transitions (Cambridge University Press 2003) 240, at 292.
4. Ibid.
5. Legrand, supra note 4, at 300.

Professor Legrand sees reading of a foreign law as not just the meaning of law, but the interpretation of it. There cannot be just one correct reading. There will be many that may not all harmonise or be consensual. Professor Legrand states that a reader has his or her motivations or goals, which Professor Legrand desires to explore. As such, a comparatist’s interpretation is focused more on the process of interpretation and simultaneous determination.

Professor Legrand’s way of seeing comparative law is not to be restricted to some uniform formula. A law text cannot be confined to one meaning or interpretation. Reading brings sense to a law. As such, he states that a comparatist has control over the interpretation of a foreign law-text and shapes its meaning. His valuable contribution in comparative study of law could bear testimony in the citation of his view in publication of other scholars. He is cited by Luca Siliquini-Cinelli in the bookd Legal Positivism where he argues against a law that disconnects with cultural encumberences. . James H. Provost also addressed some issues raised by Professor Legrand in his publication. His views are also published in Int'l & Comp. LQ.

Conclusion

Professor Legrand’s view of comparative law leaves a great level of power to comparatists to find meaning and sense of text in a foreign law. This extent of discretion may not be a great choice to understand law as-is. However, Professor Legrand demonstrated in his publication “What Is That, To Read Foreign Law?” relevant qualities as an interesting comparative law speaker in regard to his clarity, arguments, analysis, and inter-disciplinary approach. He has highlighted relevance to some current research in comparative law. I strongly advise BACL that Professor Pierre Legrand should be the guest speaker at the works shop.

1. Pierre Legrand, ‘Withholding translation’ in Simone Glanert (ed.), Comparative Law - Engaging Translation (Taylor & Francis 2014) 208, at 209, 15.
2. Legrand, supra note 4, at 296-297.
3. Ibid, at 204
4. Ibid, at 305.
5. Ibid, at 308.
6. Luca Siliquini-Cinelli, Legal Positivism in a Global and Transnational Age (Springer International Publishing 2019) 5.
7. James H. Provost, ‘Reception, Sensus Fidelium, and Synodal Life: An Effort at Articulation: Response to Herve Legrand’ (1997) 57 Jurist 432.
8. Pierre Legrand, ‘European legal systems are not converging’ (1996) 45 Int'l & Comp. LQ 52.

Bibliography

Books

Legrand P, ‘The same and the different’ in Pierre Legrand and Roderick Munday, Comparative Legal Studies: Traditions and Transitions (Cambridge University Press 2003)

Legrand P, ‘Withholding translation’ in Simone Glanert (ed.), Comparative Law - Engaging Translation (Taylor & Francis 2014)

Siliquini-Cinelli L, Legal Positivism in a Global and Transnational Age (Springer International Publishing 2019)

Journals

Geiringer C, ‘When Constitutional Theories Migrate: A Case Study’ (2019) 67(2) The American Journal of Comparative Law 281-326

Legrand P, ‘European legal systems are not converging’ (1996) 45 Int'l & Comp. LQ 52

Legrand P, ‘What Is That, To Read Foreign Law?’ (2019) 14 J. Comp. L. 290

Provost JH, ‘Reception, Sensus Fidelium, and Synodal Life: An Effort at Articulation: Response to Herve Legrand’ (1997) 57 Jurist 432

Siems M, ‘The Power of Comparative Law: What Types of Units Can Comparative Law Compare?’ (2019 67(4) The American Journal of Comparative Law 861-888

Others

School of law, ‘Pierre Legrand’ University of San Diego accessed on 17 December 2020