The 'Letter' and the 'Spirit' of Comparative Law in the Time of 'Artificial Intelligence' and other Oxymora

AuthorRostam J Neuwirth
PositionMag iur (University of Graz), LLM (McGill), PhD (EUI); Professor of Law, Head of Department of Global Legal Studies, Faculty of Law, University of Macau
R J N *
Comparative l aw is, paradoxi cally, both drive n by and a driver of c onstant change.
Over time, it h as been described as an “enig ma”, an “essentially contested co ncept”, and
has repeatedly bee n pronounced “dea d”, but it has never c eased to provid e important
inspiratio n for the understan ding of the role of law , in terms of legal e ducation, t heory
and practice . Today, the constru ctive contribution of co mparative law to the future role
of law may again be nee ded, possib ly more than ever. e rea son for this is tha t recent
decades have shown an unprecedented pace of scientif‌ic and technological innovation,
which has dri ven economic g lobalisati on and legal plura lism. Moreov er, these
technologies h ave inaugurat ed an era, calle d the “Anthropocene”, that s eems to put the
entire planet a nd its human inh abitants unde r the threat of extin ction. In thi s context,
various dis ruptive technologies – deb ated in terms of so-called “esse ntially oxymoronic
concepts”, lik e artif‌icia l intelligence , big data, the sharing econo my or synthetic b iology
– tend to underm ine the present foundation of the la w and possibly threaten the futu re
role of the law and th e legal profession. Yet, these a pparently contradictor y concepts also
indicate the po ssibility of a cogniti ve revolution that may aect l egal concepts, educat ion
and practice in t he future.
I. Introduction
It all beg an about 70,0 00 years ago , when the Cogn itive
Revolution enab led Sapiens to star t talking ab out things that
existed o nly in their own i magination.1
1 Yuval Noa h Harari Hom o Deus: A Brief Hist ory of Tomorrow (Ha rper, New York, 2017) at 156 .
* Mag iur (Un iversity of Gra z), LLM (McGil l), PhD (EUI); Pr ofessor of Law, Head of Depar tment of
Global Le gal Studie s, Faculty of L aw, University of Mac au; e-mail : rjn@um.ed
2 [Vol 26, 2020]
Comparati ve law appear s to be a const antly evolving concept , or else a rapidly
changi ng f‌ield of law.2 It seems to change even fa ster than the law it self. Defying a
conclusive def‌in ition, both law a nd comparative law h ave been discussed a s possible
essential ly contested concepts.3 It seems that t he best available def‌in ition of law is
the one provided i n a poem by Wysta n H Auden, that “Law is t he Law”.4 Al ter nat ive ly,
law and compa rative law ca n be seen as “v ague” concepts,5 wh ich could be t aken
as a reason for deny ing any debat e about thei r essentia l propertie s.6 Worse than
not debating it , some have even gone as fa r as to a nnounce the end or d eath of
comparative law.7 Pred ictions about the f uture fate of law it self are not much bett er.
Over the past c entury, the debate about l aw may too – paradoxica lly – have shifted
from ponderi ng what is and should be the “end of law ” (in terms of its func tion) to
announci ng the “end of law” (in ter ms of the death of law).8
2 See also Peter de Cr uz Comparati ve Law in a Changing Wor ld (2nd ed, Cavendi sh, London, 199 9).
3 For law and compara tive law being cont ested, see Esin Ö rücü e Enigma of Com parative Law:
Variations o n a eme for the Twenty -f‌irst Centu ry (Sprin ger, Dordrecht , 2004) at 167. For law
being an es sentiall y contested conc ept, see, for exam ple, Leslie Green “ The Politica l Content of
Legal The ory” (1987) 17 Philo sophy of the Social Sc iences 1 at 16–20; Andr ei Marmor Law in the
Age of Plurali sm (Oxford University P ress, Oxford, 2007) at 1 51 and Andrei Mar mor Philosophy
of Law (Pri nceton University P ress, Princeto n, 2011) at 132–134. For compa rative law being an
essentia lly conte sted proje ct, see a lso Esin Ör ücü “Crit ical Compa rative L aw: Consider ing
Paradoxes for L egal Syst ems in Tran sition” (2000) 4(1) E JCL 1 .
4 See Edward Mendelson (e d) WH Auden: Selecte d Poems (Vint age Books, New York, 1 979) at 90.
5 See, for example, A ntoni na Baka rdjieva En gelbrekt a nd Joaki m Nergelius “ Introduc tion” in
Antoni na Baka rdjieva E ngelbrekt a nd Joaki m Nergeliu s (eds) New Directio ns in Compara tive
Law (Edward E lgar, Cheltenh am, 2009) xii i at xxi: “One pers isting featu re is the openness a nd
vagueness of t he very concept of comp arative law”.
6 See, for example, Joseph R az “Can There Be a Th eory of Law?” in Ma rtin P Goldi ng and Will iam
A Edmunds on (eds) e Blackw ell Guide to th e Philosophy of L aw and Legal e ory (Blackwell,
Malden, 20 05) 324 at 341.
7 See, for example , MM Siems “The End of Compa rative Law” (200 7) 2(2) Journal of Comp arative
Law 133 at 133 (“Th is article su ggests that t he early 21st cent ury is seein g the decline, or m aybe
even the ‘end’, of compa rative law.”) and Int ernational S ociety of Publ ic Law (ICON-S), “Mi ssion
Statement ”; availa ble at: w.icon-socie> (“Wha t then of “Compa rative La w”? Are
we announc ing the dea th of the f‌ield? Pe rhaps not of the f‌i eld, but of the wor d. The f‌ield is
f‌lourish ing.”). For addition al writi ngs on the end of compar ative law, see also M R eimann “Th e
End of Compar ative Law as an Autonom ous Subject” (1996) 11 Tu l Eur & Civ LF 49 at 50; and
P Zumbans en “Tra nsnation al Compa risons: The ory and P ractice of Co mparati ve Law as a
Critique o f Transnation al Governance” i n M Adams and J Bom ho (eds) Practice and eo ry in
Comparative Law (Cambridge Un iversity Pr ess, Cambrid ge, 2012) 186 at 187.
8 Compare Roscoe Pound “ The End of Law as De veloped in Lega l Rules and Do ctrines” (191 4) 27(3)
Harv L Re v 195; and Rex R Per schbacher a nd Debra Lyn Bas sett “The E nd of Law” (2004) 8 4(1) BUL
Rev 1 at 2: “The loss of sub stanti ve law from the publ ic realm di storts t he legal la ndscape, li mits
public tes ting and debat e of legal norms, a nd devalues or dest roys instit utional compet encies.
Taken toget her, we refer to these de velopments as presa ging ‘the en d of law’”).

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