Abstract

The status of comparative law in the United States is a function of both broadly cultural and narrowly legal factors. The cosmopolitan language of American comparative lawyers is characterized by the passion for the foreign and the embrace of diversity. But there is an arguably permanent tension between this language and the far more visible tradition of American parochialism, with its ingrained preference for the familiar and for local custom. The cultural dilemma of American comparative law is reinforced by a more specifically legal tension between the necessity of understanding and the inevitability of deciding. From the point of view of domestic lawyers, comparative law often seems not merely irrelevant to the normative demands of governance but also antithetical to the very concept of law itself. The plight of U.S. comparative law is rooted in the separation of law from public policy that crystallized during the Progressive era and that became enshrined in the case-method of legal education. There is an unavoidably parochial, instrumental dimension to legal experience, but because domestic law is also unavoidably silent or contradictory at times, comparative law is also an inherent part of law’s self-understanding. Comparative lawyers should cultivate rather than regret the tension between cosmopolitanism and parochialism by listening more closely to the comparative perspectives suggested by domestic law itself.