Comparative Law as Transnational Law: A Decade of the German Law Journal

Abstract

In July, 2009, the German Law Journal marked its first decade with a conference hosted by the Bundesministerium der Justiz (Federal Ministry of Justice) in Berlin. The resulting discussion of the conference underscored two points: there was easy consensus that we are living in a transnational era, and that there was little agreement on how to define, or, indeed, imagine transnational law and the transnationalization of legal cultures.

The majority of the participants at the conference, the scholars and commentators who have contributed to the German Law Journal during its first decade have inclined toward the engagement approach to transnational law. They also have performed or lived the engagement – implicitly – in ways that the German Law Journal uniquely make possible with its monthly, online, English-language publication of scholarship and commentary on developments in “German, European, and International jurisprudence.”

The German Law Journal is an example of transnational law in action. The German jurists who regularly write about German law in English for the Journal are inherently involved in a transnational law encounter even if they do not consciously acknowledge the phenomenon. Additionally, the Journal’s broad mandate fosters engagement between legal systems in a way that is fundamental to transnational law and the transnationalization of legal cultures.

Comparative law’s enduring problem is the question of whether comparison serves universalizing or particularizing ends; whether function’s abstraction or context’s embeddedness should preoccupy and guide the compartist. Pierre Legrand has championed comparative law’s potential to reveal, even foster difference.

No individual scholar can fulfill these contextual demands in a single project- or even a lifetime of such efforts. The German Law Journal relieves any single scholar of the impossible burden of unilaterally accounting for law’s particular context. Additionally, the German Law Journal is a comparative endeavor that is a permanent, ongoing engagement with particular legal cultures in their contexts.

The topic of contextual comparative law as transnational law are described in the book’s six parts. In part One, “Transnational Legal Scholarship and Transnational Legal Learning,” we have collected contributions from the German Law Journal’s tenth anniversary symposium and from a special issue considering legal education in a transnationalizing world. Part Two, “Transnational Legal Philosophy,” is a collection of pieces that grapple with the tension between a predominantly state-oriented theory and tradition of public international law, and different concepts of and approaches to transnational law. Part Three, “Comparative Law: The Openness of German Constitutional Law,” is dedicated to one of the most avidly observed areas in German public law, namely, the engagement of German courts with bodies of European human rights and international law. Part Four, “Comparative Law: The Transnational Character of German Private Law,” complements the previous section with the perspective of private law, providing an impressive illustration of a distinct transnationalization of private law-making and private law theory that reveals an encounter between different legal cultures and law-making traditions. Part Five, “International Law and War Without Borders” considers the encounter between strong and weak theories of state sovereignty. The book concludes in Part Six, “European Constitutional Law,” with an examination of the encounter between state-centric and non-state-centric theories of constitutional law as demonstrated in the debates surrounding European constitutional law.

Keywords: transnational law, international law, comparative law

JEL Classification: K10, K33