concerning the mega-projects of 20th century comparative law. Hence, it might even be argued that today we do not actually expect to see a “perfect” classification because we have already adapted to the present situation, which allows for a certain amount of superficiality:“well this is just a theory” as it tends to go. But, what has gone wrong?The classifications and the reality of legal systems today do not appear to be corresponding. If one follows the scientia path in this, the problem is clear: too little truly scientific effort has been put into this matter; or, in other words, we have not been theoretically rigorous enough as of yet. Perhaps it is possible to claim that there are two basic epistemic flaws in the classification of legal systems of the world.43 Obviously one problem has been theWestern-View Orientation of classifications. Accordingly, they are patched up according to the epistemic frame of the common law or Romano-Germanic law, which positions the other groups in a somewhat shallow class where they appear to be no more than curious appendices.44 Basic justification of this critique is clear: criteria have not been neutral. Instead, they have somehow managed to favour Western legal thinking even when they were not meant to do that.45 And,even if we would not try to reach some scientia-type of jaakko hu sa 119 mies remain relatively crude and may have become outdated, our understanding of the deep historical and cultural aspects of legal traditions is still rudimentary, and empirically solid studies of the con- or divergences of legal systems are in short supply. Nonetheless, we have arrived at a much richer, especially more nuanced and dynamic view of the world map of law than we had in 1950” (at 679). 43 It appears to be quite reasonable to assume that the problems are much more profound than just concerning the number of classification criteria used, as Zweigert and Kötz (1998 p. 67) seem to think. 44 However, this argument can also be put under severe criticism. Peters and Schwenke are deploying theoretical tools taken fromKarl Popper’s philosophy of science and end up classifying this criticism as an ad personam– type of argument.Thus, “The western-bias argument can be used to refute whatever hypothesis. Its critical potential is, therefore, zero”. See Anne Peters and Hein Schwenke,“Comparative Law Beyond Post-Modernism”, 49 International and Comparative Law Quarterly (2000) 800-834, at 821.Nevertheless, the perils of the too readily assumedWesternLaw-Position have also been recognised and criticised even within mainstream theory, see e.g. Kamba (1974) pp. 507-508. But, according to the most radical strand of comparative law theory, these defences are simply wiped aside with a fundamental critique: “All of them try to suppress their subjectivity and hide their peculiar perspective behind the rhetoric of objectivity and neutrality, while camouflaging their politics by pragmatism” says Gunther Frankenberg, “Stranger than Paradise: Identity & Politics in Comparative Law”,1Utah Law Review(1997) 259-274, at 263. 45 This specific undertone of the orthodox theory has been the target of severe cri-
RkJQdWJsaXNoZXIy MjYyNDk=