Remarks on Fernanda Nicola & Günter Frankenberg, Comparative Law: Introduction to a Critical Practice

May 13, 2025

[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.