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

• Author: Rostam J Neuwirth
• Position: Mag iur (University of Graz), LLM (McGill), PhD (EUI); Professor of Law, Head of Department of Global Legal Studies, Faculty of Law, University of Macau
• Pages: 1-31

1

THE “LETTER” AND THE “SPIRIT” OF

COMPARATIVE LAW IN THE TIME OF

“ARTIFICIAL INTELLIGENCE”

AND OTHER OXYMORA

R J N *

Abstract

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 u.mo.

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 ty.org> (“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’”).