A Response to Professors Gianmaria Ajani and Vivian Curran
[Editor’s note: this is the final 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)]
We are indebted to the organizer of this online symposium, Professor Ioanna Tourkochoriti, whose leadership in revamping the ASCL blog has reinvigorated intellectual exchanges in comparative law. Her initiative is a timely reminder that engaging with comparative legal ideas requires not only scholarly rigor but also willingness to participate in more open, informal dialogue—particularly with two eminent scholars of the discipline, whose generous commentaries we are honored to receive.
We are grateful to Professor Gianmaria Ajani for his thoughtful reading of our book Comparative Law: Introduction to a Critical Practice. His reflections resonate deeply with the book’s core ambitions—especially our aim to move beyond the methodological constraints of traditional or mainstream comparative law teaching and to open new pedagogical spaces for critical, context-sensitive and politically engaged inquiries in a discipline that has long shaped, and been shaped by, the many trajectories and resistances of globalization.
Professor Ajani is absolutely right to foreground the pedagogical dilemmas that continue to confront those of us teaching comparative law: the balance between theory and practice, the tension between the “West and the Rest,” and the risk of overwhelming students with the sheer vastness of the field when asked to engage with “foreign law.” His recognition that our book attempts to tame these tensions—not by resolving them definitively, but by offering a usable toolkit that draws both from mainstream and critical approaches through what we call a critical practice—is especially appreciated.
We were particularly struck by his suggestion that our work serves as an “antidote from the vertigo of everything.” That sense of vertigo captures exactly the kind of paralysis that can arise when legal comparison is tasked with covering an endless list of topics and jurisdictions, often accompanied by the seemly innocent mantra—or false modesty?—that comparative law is “only a method.” We share our colleague’s conviction that what students need are intellectual tools that not only help them engage with diverse legal systems, but also enable them to move between doctrinal fields and normative commitments. Legal comparison, as we see it, is both a scholarly craft and a practical orientation toward the world—one that involves taking critical distance from familiar legal categories and using self-reflection as a means to understand the “foreign,” whether that be legal cultures, institutions, doctrines, or arguments. In doing so, students are invited to look back at their own legal traditions and appreciate the value of difference.
Professor Ajani’s attention to our treatment of legal transfers, property, contract, tort law, and constitutionalism goes to the heart of what we intended with this workbook. As he notes, our method does not rest on promoting best practices or pursuing harmonization. Rather, it invites students and practitioners to grapple with real-world problems—such as wrongful birth, the recognition of same-sex marriage, or the contested meaning of veiling in public spaces. These are not merely illustrative examples. They bring to the surface complex legal and policy arguments, distributive consequences, and the roles of diverse legal and social actors. They reveal how legal doctrines are embedded within political economies, social hierarchies, and cultural narratives—layers that a critical comparative practice must engage with to be meaningful.
Finally, we welcome his concluding observation that the book “opens classroom windows to let in some fresh air.” If our work helps dislodge the mannerisms that have too often dominated the teaching to comparative legal methods and theories—and instead encourages students to see laws as a dynamic, contested field in which they are in the driver’s seat, with tremendous agency—then we have accomplished what we set out to do.
We are equally grateful to Professor Vivian Curran for her generous and insightful commentary. Her reading brings into focus the dual ambition of the book: to offer an intellectually rigorous intervention for scholars and a practical toolkit for students, advocates and legal practitioners. We particularly value her recognition that we do not merely critique comparative law from a distance but seek to enact a different kind of comparative practice—one that engages in a dialogue with orthodox or mainstream approaches while remaining attentive to the socio-political, historical, material and linguistic contexts that shape legal meaning and law’s worldmaking.
We very much appreciate Professor Curran’s recognition that our book is “both nuanced enough to be of interest to scholars, and basic enough to be used as a teaching tool in the classroom,” as well as her emphasis on our treatment of language, legal globalization, and African land regimes. These themes reflect our commitment to expanding the scope of comparative law beyond its conventional terrain and, in particularly to including perspectives often relegated to what is referred to as law’s periphery. Her point about “Globalization IKEA-style” aptly captures the flattening tendencies we hoped to call into question by situating comparison in lived practices and uneven geographies.
We are also grateful for her remarks on our treatment of contract law in the context of global supply chains and the erosion of contractual autonomy—a theme that, as she notes, bridges doctrinal analysis with the political economy and connects with our discussion of legal standardization in the analysis of legal transfer.
By the same token, we welcome Professor Curran’s focus on Comparing legal histories, the final chapter, where we examine how different nations accept legal sources and rules of evidence, using the concrete example of a case in which Canadian courts dealt with territorial claims of two hereditary Indigenous chiefs. The layered narrative we present there is intended to foreground a critical reading of the rule of law— one in which, after the exhaustion of the legal remedies, a song or a dance may ultimately be accepted as valid evidence.
We welcome Professor Curran’s critical observations as a vital and necessary part of the comparative conversation—one that must include the comparatist herself: her position, perspective and selectivity in choosing materials—in the symbolic comparative space. We appreciate her suggestion to engage more directly with behavioral law and economics in the discussion of contract law, her reminder of the nuanced precedent-based nature of common law regimes as well as her critique of the veiling chapter’s interpretive framing – offered to inspire a reading, both in the classroom and in the scholar’s study, that takes the workbook at its word. Her comments enrich the dialogue we hoped the book would spark: an exchange that does not end with our text but moves through it and beyond it.
If, as Professor Curran notes, our juxtaposition of the comparative mainstream canon with a critical, practice-oriented approach makes the book valuable to both students and scholars, then we are encouraged that our intervention contributes to a broader rethinking—of what comparative law is and what it can do. Ultimately, we see Comparative Law: Introduction to a Critical Practice not as a conclusion, but as an invitation: to reimagine what legal comparisons can accomplish in shaping a more equitable society—and to ask who gets to participate in that project, both within the law and beyond it.
Remarks on Fernanda Nicola & Günter Frankenberg, Comparative Law: Introduction to a Critical Practice
[Editor’s note: this is the second 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)]
This welcome contribution to comparative law literature is both nuanced enough to be of interest to scholars, and basic enough to be used as a teaching tool in the classroom. The authors critique comparative law practice as they proceed to conduct it on their own, both by introducing their recommended socio-political-legal analysis and then by applying it to concrete problems which students are asked to solve.
The political and cultural underpinnings of comparative law are never far from the authors’ analysis as they seek to situate the act of comparison in its time and place. They also emphasize the importance of historical context as well as of language, recalling the inextricable links between language, text and culture in law. The book extends concepts such as the above which have been part of the comparative canon for some decades by placing them in a contemporary setting: e.g., “Globalization IKEA-style,” and by devoting space to often neglected areas of the world such as African systems of land registry.
After comparing contract law in the United States, France and Germany, and exploring traditional comparative law theories of convergence and divergence, the authors suggest another kind of convergence by positing that today’s standardization of contracts and global supply chains across systems call all individual contractual choice and autonomy into question.
The book is so rich that omissions are inevitable. The authors’ critique of law and economics when discussing contract law might have mentioned the field of behavioral law and economics, which today has modified the field. One might also disagree with the authors’ take on tort law where they emphasize that civilian tort law is principle-based by being founded on the French Civil Code, while common-law tort law, being writ-based, is founded on many causes of action. One might, however, see the salient feature of common-law tort law as being the least statute-based area of the common law, and, in that sense, as the most precedent-based. The latter may seem a more important trait as one considers the civil- common-law tort law divide.
The authors’ contemporary comparative law example of constitutional law deals with Islamic veiling. Four cases are set forth, one from England, one from the U.S., one from the European Court of Human Rights, and one from Kenya, each setting forth different reasoning. Each of these cases presents very interesting room for analysis and contrast. Some of the authors’ conclusions do not appear to be substantiated by the evidence they provide, however, although many of their comments are insightful.
In the final chapter, Comparing legal histories, the authors examine what nations accept as being legal sources. They offer as a concrete problem a case in which Canada dealt with territorial claims of two hereditary indigenous chiefs. In this case, a performance such as a song or a dance was accepted as valid evidence.
Throughout this erudite book, the authors have juxtaposed comparative law’s canon with their own original critique. They have offered considerable theory in a work that will be of interest to comparative law scholars just as much as it will be of use to students.
A reading of Fernanda Nicola & Günter Frankenberg, Comparative Law: Introduction to a Critical Practice, Elgar, 2024
[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 Whatto 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.
