concluding remarks: looking back to the future of legal history mon denominator that is as neutral and transparent as possible, linking the two units to be compared on a metalevel, remains a key issue in comparative legal scholarship.8 It is doubtful whether such an approach accurately describes the intellectual process that takes place when we engage in comparison. As we are all bound to our own perspectives, constructing a neutral, universal tertium comparationis is a mere fiction. Our ability to set aside our own understandings, acquired in a specific cultural context, is limited. We cannot escape our own perspectives, even if we ask not for essences but for functions, as the mainstream of comparative legal scholarship does: inevitably, we develop our concept of functionality based on our understanding of the law, evolved in a specific legal environment.9 What are we doing, when we compare two objects or phenomena? My hypothesis is, that we are translating. Instead of creating a neutral tertium, we interpret what we are observing, just like translators working with a foreign text. We explain to ourselves what we have observed using a language familiar to us, just like the translator who uses adequate formulations to express the foreign text in their own language. The better the translator’s understanding is, the more nuanced the formulation. Yet even the best translator can never completely step outside the realm of their language and imagination – and even the best expert on foreign law will make sense of it by linking it to the legal understanding of her audience. Traditionally, translation too was thought to operate on the basis of a universal tertiumthat mediated between two languages. This notion has lost currency. Translation rarely relies on a universal concept, but rather is done by connecting the foreign reality to one’s own. The translator, as DipeshChakrabarty points out, makes sense of the foreign by explaining Rabel, Gesammelte Aufsätze, iii: Arbeiten zur Rechtsvergleichung und zur Rechtsvereinheitlichung (Tübingen: Mohr, 1967), iii. 376 ff. 8 Nils Jansen, ‘Comparative Law and Comparative Knowledge’, in Mathias Reimann & Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law (Oxford: OUP, 2006), 305 ff. 9 For the functional method see Mathias Reimann, ‘The Functional Method of Comparative Law’, in Reimann & Zimmermann 2006, 339 ff. 361
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