How can comparative law profit from modern marketing? An answer to this question
can be found in this book.
In this book Prof. Dr. Dr. h.c. mult. Markesinis, one of the most outstanding scholars
in comparative law of our times with a 35-year long career in 25 universities on both
sides of the Channel, explains to us how a market for the products of the study of
comparative law can be created. He does so by putting forward the idea, well known
in business, that the success of a product is also dependent on the attractiveness of its
packaging. The comparatist must likewise take the raw material of ‘foreign law’ and
make it sufficiently user-friendly so as to persuade the potential legal consumers –
judges and lawyers – to use it in order to solve their legal problems.
This method, developed and practised by the author, by which modern marketing
techniques are transferred into the realm of justice, has already borne fruit in the caselaw of the British legal system and will, I am convinced, continue its triumphant
procession outside Great Britain. The efforts of the author over the past decades to
interpret French, German, and Italian law for legal practitioners in his homeland and
to make decisions from these systems available to the English legal establishment
have received their well-earned success. They have also received support from the
new zeitgeist of globalisation. At the threshold of the 21st Century, the end of the Cold
War, an immense increase in academic exchanges across national borders, an increase
in the practical use of worldwide communications and information technology, as
well as the development of international capital and service markets have led to a
growing ‘transnationalisation’ of law, which no jurist can any longer afford to ignore.
Europe – with its courts in Luxembourg and Strasbourg – acted as the main catalyst.
National insularity or ignorance is no longer an option if Europe is to unite.
The author has dedicated his academic life to the challenge of imparting this
knowledge to others and bringing comparative law out of the university cloisters and
into the reality of the courtroom in order to secure the existence of this subject in the
future. He has remained true to his aims and convictions despite many critics and, at
times, fierce opposition to his work. His courageous stance has impressed me deeply.
It earns my unqualified admiration. It is thus with great pleasure and a sense of
honour that I dedicate this foreword to him.
As President of one of the highest courts in Germany I have obviously followed the
author’s remarks on the state of comparative law in Germany with great interest.
According to his accurate analysis, the case law of the Federal Supreme Court of
Germany demonstrates a continued reluctance to avail itself of comparative law
insights in the solution of legal problems. While comparative law analysis is applied
where norms go back to international agreements or European directives, there is a
clear deficit when it comes to the use of comparative law methods in the interpretation
and closing of loopholes in purely national norms. Significant exceptions so far are
the decisions of the Federal Court on the compensation for the infringement of
personality rights (BGHZ 35, 363, 369) or for failed sterilisation and abortion ( i.e. the
problems of ‘wrongful life’: BGHZ 86, 240, 250 f.) The chief cause of this marked
reluctance, which the author explains in great detail in this book, is the lack of
appealingly packaged foreign law material. Here the professional comparatist is
required to immerse himself in the world of the foreign legal system and to convert
foreign law into domestic categories. The author of this book achieved this brilliantly
in his earlier work The German Law of Torts. A Comparative Treatise. Thus, this
translation of German tort law into the English language contributed decisively to the
fact that the decision of the English High Court in the case of Greatorex v Greatorex,
which the author explores at length in his fourth chapter, was able to rely on, and did
rely on, German decisions. The English Court here drew on foreign ideas as a medium
for the continued development of national law. The author rightly wishes the same for
German practitioners. He therefore advocates comparative law as a fifth interpretive
method for which the German comparatist Konrad Zweigert has already pleaded in
the past. The author uses the example of South Africa to demonstrate what a strong
influence translated German statutes and case law can also have – and have had – on
the development of the law of that country.
The author attributes to German legislators a more progressive attitude towards
comparative law. The completion of the reform of the law of obligations on 1 January
2002 bore the characteristic traits of a comparative approach. For, in the
implementation of European directives, German legislators have allowed themselves
to be guided by international law and important European codifications. The reform
of civil procedure, which came into effect at the same time, also set itself the aim of
adjusting Germany’s legal system to the standards of the country’s European
neighbours and to take into account comparative law insights.
The author ascribes a particular role for comparative law in European law to the
European Court of Justice in Luxembourg and the European Court of Human Rights
in Strasbourg. The ECHR, which ascribes considerable importance to comparative
law in the interpretation of European laws, has thereby in fact become the “stronghold
of practical comparative law.”
In order to drive this development forward, this book also makes a passionate appeal
to legal practitioners of all countries to consult foreign law when national law exhibits
gaps or appears unclear, contradictory, or unsatisfactory. Jurisprudence should meet
the challenge set by the author to make the necessary material available in appropriate
forms. Only such fruitful collaboration between theory and practice can pave the way
towards a world in which language barriers are surmounted and the best legal
solutions can be employed across national borders.
This work also describes the personal legacy of the author for present and succeeding
generations of comparatists. He bequeaths them his method of comparative law,
which has proved itself not only in the area of private law, but can also function in
public law, as the author demonstrates in one of his chapters. Though the area of
public law is, admittedly, much more complicated because the ideological and
political context projects itself more strongly on this part of the legal system than on
private law, even here one can talk of rapid progress, partly forced by European
integration.
The author reviews the golden era of comparative law in the late 1960s, analyses its
decline, and shows that his concrete, pragmatic and utilitarian approach will make
comparative law useful for a politically and economically different world and also
enable the subject to survive in the future.
For comparative law raises awareness that the legal institutions and methods of
domestic law do not provide the only possible solutions to social problems. It is an
‘antidote against blind dogmatism’ and liberates one from thinking in ivory towers.
Comparison with foreign approaches safeguards intellectual flexibility and improves
the understanding of one’s own and foreign legal systems. In this way, it not only
advances the adaptation of European legal systems on the way to legal harmonisation,
but, at the same time, promotes international understanding and thereby serves the
international community. “For only through comparison can one differentiate oneself
and find out what one is, in order to be sure what one should be” [Thomas Mann,
Gesammelte Werke V, 2nd edition (1974), S. 142].
In this spirit I would like to recommend warmly this book to the reader and I wish
him an insightful reading.
Professor Dr. Günter Hirsch
Präsident, Bundesgerichtshof