Merging Comparative Law and Legal History: Towards an Integrated Discipline

This Article argues that legal history and comparative law ought to merge into one discipline. The two disciplines are both products of the same period, the late nineteenth century, when they were formed as the fruit of the rising positivist legal scholarship. They are, to be sure, opposite sides of the coin. Mainstream legal history was, from early on, a humble servant of positivism, whereas comparative law formed as an antithesis to it. Nevertheless, neither of the twin disciplines would exist as such were it not for the emergence of national legal positivism on both sides of the Atlantic. National legal histories developed as the dominant paradigm of the nineteenth century and for the most part of the twentieth. Legal historians provided an important slice of the nationalistic narrative, explaining how history had led national states to the particular situations in law they found themselves in. Comparative law started early in the nineteenth century as a response to practical legislative needs, as “comparative legislation.” Some of the internationally minded German scholars also reacted against the national emphasis of Savigny’s Historical School. Comparative legal scholarship acquired more academic overtones as the century wore on, and many scholars optimistically expected that comparative scholarship would unify and civilize the world’s legal orders. After World War II, mainstream comparative law had little hope left in its possibilities of civilizing the world. The discipline declined into a “country and western” style of scholarship. The largest obstacle in the way of merging the twin disciplines is the fact that they, as all scholarly disciplines, are also social communities. Most scholars still like to identify themselves as “comparatists” or “legal historians.” The new combined discipline would do away with outdated ways of doing scholarship in both mother disciplines. It would marginalize the kind of legal history that seems unconscious of the world outside national boundaries and of international contexts, and it would supplant the kind of comparative law that is made without reference to the historical paths that have led to the present situation.