this, during the 20th century comparative law transformed incrementally more into a theoretically oriented academic practice, while it slowly gained a foothold within legal academia, and turned into comparative legal science instead of mere Auslandsrechtskunde i.e. pointedly a technical skill (τέχνη in Aristotelian sense).19 We may also note that this transformation fromprudentia to scientia started in the first half of the 19th century in Germany where classical philosophy pressed its influence on legal academia in general.20 It would appear that this influence has never fully disappeared. What is argued above should, however, not be misunderstood. It is not argued that one should adapt naïve epistemological optimismand think that the comparative study of law does not entail specific epistemological problems. Clearly, comparative law is not mere Auslandsrechtskunde because it always contains elements which are, as to their basic nature, very much philosophical and concern questions of legal theory even when comparatists themselves do not always grasp this.21 Neither it is argued that one should opt for strong epistemological pessimism and deny any rational possibility for the comparative study of law.22 Instead, what is argued is simply this: the manner in which academic comparative law scholars construct epistemology is in most cases based on dichotomous thinking in which there is mutually exclusive separation between theoretical and practical, good and bad, scientific and non-scientific. In other words, scholars struggle to forward their own theoretical propositions by mocking something that they assume to exist: the un-theoretical, idiot-comparatist whose imagined mistakes and blunders are criticised and ridiculed. However, the problem with this sort of dichotomous epistemological paradigm is that it constructs an epistemic worldview (Anschauungen) which is difficult to reconcile with the pluralistic reality of today’s comparative law practice. Simply, it is too crude of a distinction jaakko hu sa 111 19 Cf. Hessel E.Yntema, “Comparative Law and Humanism”, 6 American Journal of Comparative Law(1958) 493-499, especially p. 498. 20 Cf. Hug (1932) pp. 1053-1054 (referring specifically toAlselm von Feuerbach). For a more general discussion, see Jürgen Habermas,“Hermeneutik als theoretische und praktische Aufgabe” (originally published in 1978), in Gesammelte Werke Band 2 (J.C.B. Mohr,Tübingen1986) pp. 301-318 (defends prudentia and also criticises the transformation of iurisprudentia into Rechtswissenschaft instead of the earlier Rechtsgelehrsamkeit). 21 See for a more detailed discussion Jaakko Husa,“Überlegungen zu einer Theorie der Rechtsvergleichung als Rechtsphilosophie“, 40 Rechtstheorie (2009) 473 - 422.
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