A reading of Fernanda Nicola & Günter Frankenberg, Comparative Law: Introduction to a Critical Practice, Elgar, 2024

May 6, 2025

[Editor’s note: this is the first of three posts parts of a mini-symposium on Fernanda G. Nicola’s and Günter Frankenberg’s book Comparative Law, Introduction to a Critical Practice (Edward Elgar, 2024)]

“The classroom remains the most radical space of possibility in the academy”(Bell Hooks, Teaching to Trasgress, 1994, quoted by the authors, at p. 1). 

“The purpose of this book was to write a different kind of textbook on comparative law” (The authors, at p. 206).

These two statements provide the opening and the closing of an absorbing and inspiring book, authored by Fernanda Nicola and Günter Frankenberg. And there is no spoiling in saying that the declared purpose was accomplished. 

Teaching comparative law is not an easy undertaking: too wide is the series of possible options when we prepare the syllabus. What does really count for law students ? How shall we attract their attention on a matter that can be perceived as too abstract, too theoretical, possibly too apart from the practice of domestic law in courts ? How significantly can we ask our students to be familiar with historical, geographical, economic notions, that represent the thorough-bass of most comparative law courses ? An endless list of preliminary options: where to set the focus, between private and public law ? How to balance the West and the Rest? The formal and the informal?  How much time (perhaps no time at all) should be spent in exposing students to the phantasmagoria of uses and misuses, discipline or method, exoticizing or deconstructing the foreign element, and so forth ?

No doubt, all these interrogations bother the teaching of comparative law as a general discipline, and the making of a textbook. They must be tamed, to contain publishing costs, as well as teaching constraints. It would be then unfair to blame the authors for (unavoidable) omissions. What counts is whether choices made by Nicola and Frankenberg – inclusions and omissions considered- give the readers a useful, understandable, and manageable introduction to the comparative law as a (critical) discipline. Something that could provide those approaching the subject, be they  students, or newcomers, with an antidote from the “vertigo of everything” that could discourage any advancement in comparative law studies.

A dense and intense introductory Chapter (pp. 1-23) shows the gift of the authors in synthesizing complexity, and guiding readers through an immense literature on “How to compare, and What to compare”. 

Sewing together most questions listed above, Nicola and Frankenberg have elaborated an approach of their own, focused on “real-life problems taken from the application of law”, to show how interpreters can move from a mainstream to a critical approach, and from a formalist to a non-positivist understanding of law that reads legal theories in the prism of policies, while evincing the social, cultural, and economic fabrics of judicial implementation. Once the set of comparative law methods and theories has been exposed, “all are invited to work” with a toolkit that can be arranged and applied to produce a comparative practice “that helps understand the plurality of legal cultures and their laws, and therefore deserves to be called critical” (at p. 23). An invitation that could be better appreciated when reading Chapter 1 together with Chapter 9 of the book (Comparing Legal Histories, pp. 183-205).

What has been defined as “Dynamic Comparative Law”, namely the study of laws, theories, cases, institutions patterns in their traveling is the focus of Chapter 2 (Comparing Legal Transfers pp. 24-46). Here, authors have set the stage of a drama called Legal Globalization, with all his characterizations: the transformation of laws and legal patterns into commodities, the emphasis on the role of experts, the role of chance and prestige in the offer and demand of legal models, the unexpected side-effects of hectic legal reforms. Looking back to the golden years of globalization we can, today, clearly recognize that comparative law as a discipline, and comparative lawyers as experts, failed to have a role in the worldwide market of legal reforms. The practice has privileged time-efficiency over the fine-tuning of context-based comparative law methodology; governmental agenda were driven by geo-politics, rather than by cultural affiliations. In spite of a story that proved to be a mortification for the “ubris” of the discipline, Nicola and Frankenberg advance a constructive reading: “comparing legal transfers could be an antidote against a too narrow (…) focus, against epistemic narrowmindedness and provincializing comparative law” (at p. 46).

“What does private property imply ?”. The formidable tangle of economic, political, legal and cultural models that depict property laws worldwide is at the center of Chapter 3 (pp. 47-69). Here, the talent of a comparative law teacher in classroom will be severely tested, as students are required to handle a complex scenario, populated by land reforms, public and private law regulations, formal taxonomies and practices of collective use, alternatives to private property and varieties of its social function. It is not by chance, after all, that “conventional textbooks of comparative law -as the authors do note- tend to focus on contracts and torts, and they often neglect property law” (p. 49). The density of issues simply hinted at, or more broadly described, in about 20 pages could justify by itself a “Comparative property law” course, open to necessary contaminations based on socio-economic approaches to property. 

Unlike Chapter 3, the following one (pp. 70-97) deals with a topic, Comparing Contract Laws, that has received an overwhelming attention in comparative law conventional scholarship.

Keeping in the backgound a classical problem in contracts, specific performance, Nicola and Frankenberg portray the approach applied by mainstream scholarship (Zweigert and Kötz, Gordley): the common law/civil law dichotomy and its functional equivalence, projects in harmonixation, and the cultural meaning(s) of private autonomy. A sketched mention to Law and Economics theories of efficient breach and to Feminist and Critical Race theories of contract law enriches the picture. A tale that  a class of normally equipped law students should be able to understand without too much effort, while applying the provided toolkit to the specific performance cases exposed (Mary Clark, 1821, and Anna Netrebko, 2023).

The second part of the book (pp. 98-182) shows a growing relevance for the non-legal layers (mainly, politics, ethics, and culture); it could not be otherwise, as the authors choose to hinge Chapter 5 (Comparing Tort Laws) on the matter of wrongful birth and life. The law of torts, that traditional comparative law scholarship had often used as a “gym” to train students in the play of combining leading cases, diverging opinions, laws and policies, proves again to be a fertile field for the participatory exercise Nicola and Frankenberg are calling the students to be engaged into.

On a similar note, Chapter 6 (pp. 119-140) adopts as a main theme for Comparative Family Laws the recognition of same-sex marriage. All possible legal and non-legal layers are, evidently, involved, and students are invited to delve into the “varying stances taken by courts, legislatures, and advocates regarding the legalization or resistance to same-sex marriage” (p. 139).

Finally, Comparing Constitutions (Chapter 8, pp. 161-182) gives the chance to confront a “conventional” comparative constitutional law, marked by a narrative of similarity and convergence, with the constitutional jurisprudence of wearing veil in public spaces.

As said, the commitment to offer a “different kind of textbook” has been respected. 

Some comparative law teachers in Europe share the desire to get rid of a kind of mannerism in the discipline. They have a good chance now, as to open classroom windows to let in some fresh air is the worth of this book.