Interpreting the History of Modern Comparative Law: Beyond Descriptive Linearity The Case of Historical-Comparative Jurisprudence
This paper aims at revising some parts of the history of modern comparative law. In essence, it argues that paradigms can be identified in this story, and it justifies this point by reconstructing the first paradigm of modern comparative law. By applying some concepts of Thomas Kuhn’s philosophy of science – pre-paradigm period, scientific community, paradigm, and symbolical generalizations – it argues that the first paradigm of modern comparative law was born in 1860-80s. This paradigm – called as either comparative jurisprudence or Vergleichende Rechtswissenschaft – was inspired by positivism and the idea of evolution. A main premise of this paradigm was that legal development, similarly to the biological understanding of evolution, is ruled by laws and these laws can be discovered through a devoted scholarly work. Each scholar in the paradigm, either English or German, attempted to reveal these universal laws determining legal development and the consecutive stages of legal evolution.