part vii • legal history and legal science • lena foljanty The processes of the cultural translation of law and legal ideas can be found all over the world in all epochs. Legal orders never developed in isolation, as Lars Björne argues strongly in the present volume. He describes the emergence of a Nordic legal culture with specific characteristics and a certain unity as a prime example of such entangled development. Mats Kumlien, meanwhile, considers whether such an intercultural exchange of legal ideas necessarily leads to a convergence of legal orders: as with translation processes, where decisions have to be made at every step, there are variations at every fork in the road. In my own research, I am looking at the transmission of Western legal ideas to local judges in late nineteenth-century Japan. While the Meiji government embarked on major legal reforms, based on the model of Western law, the judges who had to put the new legal ideas into practice mostly had no opportunity to travel to Europe or the US to gain first-hand experience. Their perception of ‘Western law’ was influenced by the local context in which they operated, and thus the local context conditioned the new law. The metaphor of translation invites us to focus on the production of nuances. What is translated is never just different or just similar to the original. It has its own character. This character, with all its nuances, has to be made visible by the research that deals with entanglements in legal history. Here, the study of entanglements in legal history and comparative legal history are close to each other. Comparison is traditionally seen as the search for similarities and differences between entities and phenomena, measured against a tertium comparationis, conceived by Ernst Rabel and other pioneers of comparative law as a universal, neutral concept attained through comparison.7 Nowadays, it is recognized that such a tertiumcan never be fully neutral. However, the need to construct a com7 One need only consider Konrad Zweigert & Hein Kötz, Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts, 2 vols (Tübingen: Mohr Siebeck, 1969–1971); Ernst 360 Comparison as an act of translation
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