The domain of workplace law has expanded in the United States, from traditional labor and employment law to contracts, to consumer protection and even family law. Even so, American labor lawyers maintain that the statutes protecting workers are crumbling after almost a century without supportive reform. This Essay proposes that labor law practitioners and scholars embrace comparative methods to navigate the changing landscape of workplace law and culture. Because the terms and conditions of employment—like laws—are rarely solely comprised of written words, labor lawyers must become critical comparatists in order to effectively secure the rights of workers in a neoliberal economy.
I. Introduction
Former instructor of comparative law and United States Supreme Court Justice Antonin Scalia complained that “foreign legal materials can never be relevant to an interpretation of—to the meaning of—the U.S. Constitution.”1 Scalia’s argument against comparison has a heritage extending as far back into history as 1794, when critics of legislator and legal scholar James Kent, namesake of Chicago-Kent College of Law who came to be known as “America’s Blackstone,” argued that the jurist’s Commentaries on American Law should not include foreign law in a summary of the law of the newly-independent republic.2 Although United States jurisdictions today are generally hostile to arguments based on comparison to foreign authority,3 and United States lawyers are likewise generally ignorant of other legal cultures,4 the American legal education necessarily encompasses some measure of comparison through the various jurisdictions in the federalist system.5 Professor Ugo Mattei notes that knowledge of jurisdiction disputes and legal precedents, without explicit instruction in comparative law, then, may be a kind of tacit knowledge for United States lawyers, such that those comparatists are practically familiar but “methodologically unaware” of comparison.6
Still, there are many reasons to consult other nations’ laws. Aside from the scholarly satisfaction of weighing insights from the juxtaposition of black-letter law and comparative law, the latter can provide several benefits, each of which is heavily criticized by comparatists themselves.7 First, immersing oneself into a foreign legal culture enables a lawyer to better understand her own legal background.8 In his introductory book on comparative law, Professor Mathias Siems proposes immersion as one variant of a deep-level analysis in comparative law, encompassing the “ideas, values, and moral foundations” of a legal system.9 Second, study of diverse legal systems may enable the comparatist to glean commonalities in cultures between different places or potential universalisms underlying the practice of law (or positive law).10 Professor Jaakko Husa characterizes this approach as one facilitated by epistemic universalism.11 Thirdly, and most commonly today, scholars wield comparison as a tool to better understand the relation between law and society—how law and culture shape each other.12
This paper will explore what a lawyer can learn from comparative law and the risks involved with different approaches to comparison.13 Guided by these risks and the solutions proposed in the comparative law literature, it will draw lessons for lawyers interested in fields that involve a plurality of sources of law, specifically labor law.14 Labor law15 is a key area of legal study where both legal and non-legal institutions together comprise the field’s relevant rules: “Labor law and industrial relations are intertwined; international differences in collective labor law may be caused by differences in the industrial relations structure, and not vice versa.”16 This is because work arrangements are often influenced not only by laws but also by social customs and norms, industry and trade union practices, and popular mobilization around social security, privacy, and immigration.17 Labor law is so topically expansive in practice that attempts to expand the definition of work law in scholarship to encompass “all relationships which are characterized by inequality of bargaining power” or “as a tool to compensate the position of the weaker party everywhere,” have been criticized for threatening the legitimacy of the field.18 This paper argues that lessons from comparative law’s historiography can help US labor lawyers to “right the ship” and guide the field to safer epistemological waters.19
The problems in comparative law are closely related to the problems in studying labor law—that a legocentric view ignores many of the relevant rules regulating the workplace, which is governed by extra-legal and informal norms as much as by public law, tort, and contract.20 Existing taxonomies of work relations are increasingly unproductive in a globalizing economy and with regards to flexible work arrangements.21 This paper argues that, ultimately, the remedies for comparative legal studies will be especially beneficial in labor law because of labor’s embeddedness in its cultural context.22 The better a student of labor law can learn much from comparative law’s critics, the better the student can address contemporary crises in labor law.23
II. General history of Comparative Legal studies.
Comparative lawyers, including comparative law’s most ardent critics, who go so far as to label the original approach “simplistic,”24 still take Professors Konrad Zweigert and Hein Kötz’s Introduction to Comparative Law, written in 1977, as a methodological starting point.25 There, the authors explain the early 20th-century goals of comparative law—in essence, to discover a universal law through comparison26—and attempt to ordain a methodology that became known as functionalism.27 With functionalism, a lawyer begins with a hypothesis or problem that their domestic law attempts to solve.28 The lawyer then asks how another jurisdiction functionally goes about solving that same problem.29 By comparing the problem-solving apparatuses of different legal systems, the comparatist then can understand how the different legal approaches lead to the same solution.30 Once a comparatist has compared the approaches, they should develop a “syntax” or taxonomy to enable further exploration of similar—or similarly differing—legal institutions.31 These taxonomies might consider: “history, ideology, legal style, legal argumentation and thinking, codification level of law, judicial reasoning, structural system, . . . training of lawyers, law’s relation to religion and to politics, the economical basis of law, the background philosophy,” and sources of law and doctrine.32
The purpose of function as a basis of comparison is to extract a legal solution from its national or cultural context to better understand its efficacy as (positive) law.33 There are at least two abstractions involved in this mode of comparison: first, a comparatist’s explanation of the foreign law, which Jaako Husa calls “a novel reconstructed knowledge of the law;”34 and second, the comparatist’s choice of “concepts . . . that are functionally comparable.”35 Zweigert and Kötz posit that as long as a comparatist asks the right questions and frames each legal system’s function appropriately, they should find legal systems to have only “immaterial differences” because societies must solve the same problems, even if in different ways: the presumption of functional equivalence.36 Because different laws can be said to serve the same function, Zweigert and Kötz suggest that a comparatist should first find a common set of social problems and solutions before contrasting the different jurisdictions’ legal approaches to those problems.37 If the comparatist finds different results among multiple legal systems, then they “should go back and check whether [the] original question was ‘purely functional’ and whether the net of [the] research is cast wide enough.”38
The aims of comparative law are similar to those in other areas of legal scholarship39: to create legal knowledge through theories and concepts, which may help critique one’s own legal system or support legislation or policy solutions.40 Comparative law’s early theories included a trend toward taxonomizing nations’ legal systems according to their ideal “families.”41 Under the theory of legal families, legal systems could be grouped for convenient comparison within or between groups according to their history or structure.42 Zweigert and Kötz note that “[u]ltimately the category a comparatist uses [to group or compare systems] is the one that illustrates the aspects that interest him the most.”43 Common legal families include civil law, common law, socialist or Soviet law, and “other” law, which tends to group together many systems outside of Europe and North America.44 For several decades, comparative law scholarship tended to set “the West” against the rest of the world’s legal systems.45 In a historiography of comparative law, Professor Mattei suggested that the idea of the Western legal tradition was developed to combat and contrast Soviet influence.46 Other scholars have traced the history of the “Western legal tradition” and argued it is more aptly labeled an ideology than a canon.47
Seeking concepts to circumvent the variations across all of human law, 20th-century comparatists created taxonomies to better understand both the core similarities and differences between legal systems.48 Searching for similarities, Professor Rudolph Schlesinger conducted the most expansive search for a universal human law in the Common Core project at Cornell Law School in the 1960s.49 There, researchers set out to illustrate a “map of the law of Europe” by comparing jurists’ responses to a specific fact situation across multiple countries. Professor Schlesinger’s project assumed that there was a common core among the world’s legal systems, and that core could be understood through analysis and not simple juxtaposition of different laws.50 The researchers struggled to formulate questions that jurists would interpret in a way that separated the subject of inquiry from the individual jurist’s cultural context so as to generate comparable answers.51 Schlesinger hypothesized that his approach would enable the scholars to question the actual principles governing the fact scenario without relying on a judge’s statements or reason for arriving at a result.52 On the other hand, to explain differences, Rodolfo Sacco formulated the theory of “legal formants” to help expand the conception of a legal rule by identifying the explicit and implicit factors that lead judges to different results.53 He wrote that even the domestic lawyer “who proceeds from the axiom that there can be only one rule in force, recognizes implicitly that living law contains many different elements such as statutory rules, the formulations of scholars, and the decisions of judges—elements that he keeps separate in his own thinking.”54 Legal formants may bring “philosophy, politics, ideology, or religion” into a judge’s analysis, even though the judge may not explicitly state those assumptions in their decision.55
Similarly, to better assess the factors that disrupt the transfer of a foreign law to a new setting, scholars explored the notion of “legal transplants.”56 In this genre of comparative law, scholars examine the success or failure of a law that has been “transplanted” from another jurisdiction.57 An example of this is the duty of good faith that has infused English contract law, not as generally implied in common law but by the European Consumer Protection Directive 1994.58 The conversation around transplants, in particular, tested comparative law’s assumptions that legal systems in a globalizing world would converge and that diverse legal systems will use different structures to solve problems the same way.59
Through the theories of legal transplants, legal formants, and law’s common core, comparatists and policymakers developed the idea of “legal origins,” which enabled scholars and lawyers to shape the laws of different nations in order to enable international commerce.60 A nation’s legal family or tradition would allegedly influence its progression toward a legal, global norm.61 The intellectual impact of comparisons based on these taxonomies was a “depoliticization of law” and a stark conceptual distinction between the law and the culture that either facilitated it or gave way to it.62 These frameworks comprising the traditional analysis in comparative law revealed a few weaknesses between comparatists’ methods and their objective of understanding legal systems.63 In summary, the traditional method of comparison made assumptions about the sources, functions, and effects of law by abstracting the comparatist’s conclusions from social context and the comparatist’s own point of view.64 The abstraction was intentional, as part of comparatists’ attempt to learn universal facts about human law.65
III. Functionalist Criticisms and Critiques
By separating law from society and then connecting the two only by the thread of function, the comparative lawyer employing traditional functionalism acted as if “the consequences of some behavior or social arrangement are essential elements of the causes of that behavior.”66 Comparatists then hypothesized consequences that would bring about desired behaviors in new legal systems.67 Critics of traditional comparative law objected to the early comparative lawyers’ two primary goals, which amounted to a form of eschatology: harmonization of various laws to facilitate smoother international commerce and unification of laws for global governance.68 In addition, they argued that the method of discerning abstract facts about laws independent of their contexts ran contrary to the hermeneutical nature of legal science.69
This section will explore the faults that critics identify in the theories undergirding comparative law, specifically in the traditional comparative methods. It will then examine the contemporary response to the postmodern and critical critiques: contextualized comparative law or decolonial comparative law.
Zweigert and Kötz list unification and harmonization as primary objectives of international law comparison.70 By “inducing [nations] to adopt common principles of law,” comparatists would institute global standards for private law that supersede substantive national law, thereby helping entities do more business internationally.71 Other scholars explain that harmonization is part of a modernizing process to make the law more functional for private entities.72 “The comparativist, in this sense, works as an ideologist for the global system of government.”73
Postmodern critic and Professor Pierre Legrand emphasize the instant havoc this goal wreaks upon the comparatist’s attempt to understand and explain different systems.74 Whether the comparatist’s goal is to create a global legal system or simply to unify laws within set regional or cultural boundaries, “the point is not to explain legal diversity, but to explain it away, to contain it in the name of an authoritative ideal of knowledge and truth somehow deemed to be above diversity, to be intrinsically diversity-free.”75 A scholar who searches for similarity intrinsically ignores the elements that make legal systems different from each other.76 Legrand criticizes traditional comparative lawyers’ “collective purpose to proscribe what they regard as disorder and to invalidate what they apprehend as dissonance” because comparison is only possible between unidentical things.77 He argues that a unification project is contrary to the illustrative nature of legal comparison, a hermeneutical exercise “premised on a belief that, in the context of a transaction between self and other mediated by a third term that is the meeting-point in language, another law is capable of being re-presented.”78 In short, the traditional comparatists’ hunt for similarity undermines the function of comparison itself.79
The globalizing project, premised on a theory of convergence (ius commune) across all jurisdictions, has also been criticized for contradicting research elsewhere on globalization, “which indicates globalization doesn’t necessarily result in convergence or uniformization, but that new differences are produced by globalization itself.”80 In his essay against the theory of legal transplants, Professor Gunther Teubner argues that by inviting greater interaction among different nations and institutions, globalization multiplies the problems that legal systems face and challenges the existing blueprints of legal solutions.81 This requires legal systems to generate new rules and enforcement mechanisms in response to context-specific problems.82 But because the process of creating a legal rule is highly dependent on the degree and type of connection between law, which contains the rules, and society, which informs the rules and may even be influenced by law, the multiplying problems of globalization will be addressed with even more varied solutions at the local level.83
This leads to the problems with the very process of abstracting law.84 Because law is a hermeneutical activity, any knowledge gained from its study will be filtered through the interpreter’s own beliefs, intentions, and assumptions.85 Comparative law requires the same interpreter to understand another culture’s hermeneutical activities and then compare those activities to their own interpretive approach.86 The fundamental question for the comparatist who wishes their work to be in any way scientific is how to “produce ‘good,’ that is, non-ethnocentric abstractions?”87 This is less of a critique of functionalism itself than a caution to comparative lawyers about their relation to knowledge.88 Professor Gunter Frankenberg argues that without “methodological and theoretical guidance,” comparatists have a propensity to become unmoored from the scientific aspect of their work, leading to a “formalist ordering and labeling and the ethnocentric interpretation of information” instead of learning.89 In addition, he warns that removing a law from its context risks treating society as “a non-legal reality,”90 when context is, in fact, essential to the meaning of a law—and the meaning of a law is the law.91
Postmodernists and critical legal scholars argued that the comparatists’ goals tainted the comparatists’ theories from the outset and jeopardized the soundness of their methods.92 With no methodological replacement for functionalism, comparative legal scholars continue to explore the law across national boundaries but with greater attention to the impact of their intervention as strangers in a foreign legal system.93 Moreover, legal scholarship turned from dogma and positive law toward sociological jurisprudence and legal realism, with a greater awareness of the effect lawyers’ epistemological assumptions had on their scholarly conclusions.94 Specifically, comparatists who kept abreast of social science theory and research on globalization criticized the transplant and common core imagery for obscuring the co-interaction of law and society—from both the comparatist’s own background and within the foreign comparator.95 In other words, comparatists were not sufficiently “distancing” themselves with a candid understanding of their own viewpoint, nor were they “differencing” the foreign law they studied by understanding it in its own terms.96
The entanglement between law and not-law has led, in particular, to critique of the functionalist method.97 Critical comparative lawyers recognize that there is no method of extracting the relevant law and context that is “guaranteed to achieve reliable and interesting results.”98 No area of study wields such a tool.99 However, contemporary comparatists recognize that a highly contextualized analysis of foreign law and the researcher’s own assumptions can reduce the risk of infusing their work with ethnocentrism.100 The remedy—known as contextual comparative law or moderate functionalism—requires a reversal of the abstraction principle from traditional comparative law.101 Instead, the comparatist takes care “to pay attention to the doctrinal, legal-cultural, and even extra-legal environment, the context surrounding the rules or questions under examination.”102 This remedy invites additional information to enable the scholar to both explore the foreign law and assess its effectiveness—“draw[ing] on the argument that law often does not rationally solve problems,” and that, functionally, it often achieves results that neither legislators nor jurists intend.103 This is the accusation of legocentrism, as Professor Frankenberg explains, where the comparatist’s error is in supposing the law is the text and that it is rational, optimal, or useful for resolving conflict.104 Legal realism and sociological jurisprudence have thus contributed to comparative law by interrogating the social purpose and politics of laws, two non-legal elements discarded by the traditional comparative analysis, and placed greater emphasis on interdisciplinarity in comprehending the law’s supposed impact.105
In a case study of methods, comparatist Professors Adams and Griffiths explore the same legal change in different countries to understand which sources of law can explain the impact of a change in rules.106 They assessed several countries’ experiences in legalizing euthanasia (or other forms of voluntary death), as well as the laws and norms influencing doctors’ choices to practice it.107 Although legislators and policymakers made similar arguments in favor of and against the legal rules, the social and institutional context reshaped the law’s effect in action.108 Adams and Griffiths found that the laws legalizing euthanasia sometimes led to more of it and sometimes to less of it.109 In some cases, “[d]octors objected to legalization because up until then they practiced that activity without interference; legalization that was said to liberate actually imposed a legal regulatory regime on decision making.”110 Adams and Griffiths cautioned that instrumentalism—the assumption that rules cause the behavior they authorize—reflects only the viewpoint of the lawmaker.111 Given the diversity of linkages between legal rules and functional outcomes, they concluded that the fundamental methodological rule for any comparative law is “row with the oars you have.”112
The affirmative response to comparative law’s critics, beyond negative critique and moderate functionalism, is decolonial comparative law.113 Under that moniker, Professors Salaymeh and Michaels define new objectives for comparative law: “to expose the epistemic assumptions of the modernity/coloniality matrix.”114 The decolonial approach calls upon the scholar to preface their methodological choices by asking why they are making comparison at all, what they are comparing, and whether those are the right features to compare.115 The authors posited that this approach would enable comparatists to leave the old functionalist procedure behind and take up two new assignments: to “promote pluriversal law by emphasizing that there are multiple legal options that need not be unified” and to use comparison as “a tool for discovering new legal options.”116 Importantly, decolonial law contributes by situating legal reasoning not as the basis but as one of several modes of comparative analysis of state and non-state law.117 Ultimately, the decolonial remedy helps to assuage comparative law’s preoccupation with methodology because, in Adams’ and Griffiths’ phrasing, “[l]egal comparison is a way of answering questions, not a question in itself.”118
IV. Labor Law’s Comparable Crisis
Labor law in the United States faces a similar crisis in methodology to that of comparative law.119 The study of work arrangements, like the study of international relations, necessarily encompasses economics, history, sociology, anthropology, political science, and public policy.120 Comparative lawyers frequently reference the field’s “Cinderella Complex,” referring to the perception that they are underappreciated in the academy, even as they participate in an important discourse about the law’s most ideal form.121 Similarly, labor law research is at once obsolete and cutting-edge because it is regulated by an “ossifying” set of legal rules that regulate the employer-employee relationship, which is undergoing rapid political and technological change.122 Labor lawyers complain of the law’s bifurcation, where multiple executive and independent agencies enforce labor standards whose level of coordination is irregular and ambiguous.123 The law of collective bargaining has not been revised since 1959, and the law governing individual employment is generally considered to be underenforced.124 This section will illustrate how labor law has struggled as a field of scholarship and then explain how the remedies for comparative law’s intellectual crisis can assist labor law in the future.
The critical legal studies movement upset the field of labor law—as it did to many other areas of law—in the 1980s.125 Critical labor law demanded analysis of text in their contexts, encompassing “the constellation of assumptions, values and sensibilities about law, politics and justice these [legal] texts evince, to reveal their latent patterns and structures of thought about legal and industrial issues and about the possibilities of human expression in the workplace.”126 In his essay Labor Law as Ideology, Professor Karl Klare argues that the law of collective bargaining had “evolved an institutional architecture, a set of managerial and legal arrangements, that reinforces this hierarchy and domination [of management over workers].”127 He elaborates that the laws, which contain preambular assertions of workers’ rights to self-organization, collective action, and bargaining power, in fact, limit worker power by cabining collective action within tightly circumscribed boundaries.128 Critical labor law scholars have shown that collective bargaining law has developed to fulfill the function of containing conflicts within the grievance and election processes without granting workers any right to participate in the direction of the company.129 Traditional labor law, they argued, had transformed the political task of managing class conflict into a flowchart of administrative rights through grievance procedures—a management solution to the labor problem.130 Similarly, anti-discrimination law, designed to reduce sexual harassment, empowers women to sue for exceptional and disruptive instances of social objectification, even though harassment’s real harm “comes from its typicality: It is bound up in the inability of its victims fully to de-eroticize hierarchical domination or to ‘de-commodify’ their own sexuality.”131
Like comparative law, labor law tends to acquiesce to the depoliticization of the laws it examines.132 For instance, labor law continues to treat employment relationships and even collective bargaining agreements as “work contracts” despite that concept’s 20th-century historical specificity.133 Efficiency reasoning—of the law and economics movement—further reinforces this depoliticization by providing a framework for evaluating the transfer of rights to worker collective action and protest from the public sphere into the private spheres of internal procedure and grievances.134 Law and economics likewise offer a false distancing of the labor lawyer from their subject: efficiency reasoning “restructure[d] the role and legitimacy of the lawyer, weakened by the realist extreme ‘choice for candor.’”135 But instead of de-centering doctrinal interpretation of the law, law and economics instead ask labor law to understand its success in terms of the underlying ideologies of efficiency (cost savings).136 The consequence is that the unwary critical scholar refutes the efficiency arguments dominant in the neoliberal context without questioning the law’s ideology itself.137
Labor law’s crisis raises a question familiar to comparative lawyers: what should be studied if black-letter law no longer reigns supreme? The theory of industrial pluralism, “that collective bargaining is self-government by management and labor,”138 posits that the discourse over relations between workers and employers should be formulated like a democratic legislature, where both sides negotiate and then legislate the acceptable rules of the workplace.139 Good comparative law requires lawyers to assess both legal and non-legal rules, and good labor law will study both legal and non-legal terms of employment.140 Labor law has always been governed by custom and trade usage.141 Professor Harry Arthurs discusses the struggle to identify sources of law in his article on comparative labor law, writing that the achievement of “perspective” and “modesty” in scholarship aims “to bring into clearer focus the forces that shape labor law ‘in practice’ as well as labor law ‘on the books.’”142 He goes so far as to argue that the state is no longer able to regulate the labor market because it has allocated so much power to the juridical and economic spaces.143
Similarly, as in comparative law, scholars in labor law would benefit from distancing and differencing to gain a better understanding of their subject.144 The scholar with a vested interest in workers’ ability to strike may wish to defend the Wagner Act for its explicit guarantees of the right to strike.145 However, distancing oneself from the scholar’s own alignment with this stated goal would reveal to this scholar the law’s tendency to inhibit industrial action by formalizing the conditions for a legal strike.146 Differencing, in this case, may take the form of opening oneself to the discovery of unexpected facts, such as the fact that laws guaranteeing a certain right may restrict its exercise.147
These features of labor law, which are largely shared with comparative law, bring us back to the question of function as a tool of legal analysis. Critical legal studies endorse negativity as a crucial feature of a lawyer’s initial analysis to facilitate more nuanced critical interpretations of the law and its connections to society.148 From there, comparative lawyers and labor lawyers will continue in the same direction they always have; “[t]he academics and practitioners in [critical legal studies] are role-restricted actors.”149 Lawyer and anthropologist Dr Petra Mahy offers one approach to exploring functionalism in comparative labor law.150 Her 2016 study compares work arrangements for restaurant employees in Yogyakarta, Indonesia, and Melbourne, Australia.151 She identified a social problem: “the need to arrange work . . . so as to fulfill the requirements of the business owner . . . while at the same time ensuring a certain level of satisfaction and benefits to workers”—the labor problem.152 She proposes that the similarity in the objectives of the businesses (to produce food and sell it to customers) and the economic pressures they faced (to compensate employees while generating some profit) would constitute a similar function through which to compare the work agreements of employees across different countries.153 One important element of difference between the two legal systems, Dr. Mahy finds, is kekeluargaan or “family-ness” in Indonesian employment relationships, a norm associated with “reciprocity, patron-client or parent-child type relationships, flexibility in terms of rules, and leniency toward a worker’s family and social responsibilities.”154 At least within the measured confines of the workplace, a measured approach to functionalism enabled Dr. Mahy to uncover at least one non-legal source of rules governing the employment relationship, where state-made law was otherwise loosely enforced.155
V. Conclusion
Critical comparative law emphasizes practices that are particularly important to labor law—values and perspectives—because both labor and comparative law must account for varying sources of law outside of formal institutions and taxonomies of law, aside from legal definitions. Consequently, the comparative law’s innovations to methods of legal interpretation will be especially helpful to those studying labor law. Perhaps in American labor law, “‘rebellion has turned into Procedure,’ a consequence of juridification.”156 Perhaps temporary work, indefinite independent contracting, and web-platform-based work have not been as common forms of compensation for work until this century; however, this novelty is one reason for researchers to adopt a critical comparative approach to labor law that critically analyzes both the perspective and the object of interpretation.157
* JD, Chicago-Kent College of Law; BA, University of Chicago. This article was prepared by Grace Quigley in her personal capacity. The opinions expressed are the author’s own and do not reflect the views of the National Labor Relations Board or the United States government.
1. Lawrence v. Texas, 539 US 558, 598 (Scalia, J., dissenting).
2. Mariana Pargendler, The Rise and Decline of Legal Families, 60 Am. J. Compar. L. 1043, 1071 (2012); James Kent, Encyc. Britannica, https://www.britannica.com/biography/James-Kent [https://perma.cc/FG2Y-QZLV] (Dec. 8, 2024).
3. Id.; see Anthea Roberts, Comparative International Law? The Role of National Courts in Creating and Enforcing International Law, 60 Int’l & Comp. L. Qtly. 57, 86–87 (2011).
4. Ugo Mattei characterizes United States legal cosmopolitanism as embodying the “Wilsonian missionary spirit of teaching others the right way of doing things rather than engaging with unbiased understanding of legal otherness.” Ugo Mattei & Alessandra Quarta, The Cold War and Comparative Law: A Reflection on the Politics of Intellectual Discipline, 65 Am. J. Compar. L. 567, 569 (2017). Also, American law professors are often monolingual, which limits the scope of their interaction with foreign law. See Matthew W. Finkin, Comparative Labour Law, in Oxford Handbook of Comparative Law 1110-1136, 1128 (Mathias Reimann & Reinhard Zimmermann eds., 2d ed. 2019).
5. Ugo Mattei, An Opportunity Not to Be Missed: The Future of Comparative Law in the United States, 46 Am. J. Compar. L. 709, 717 (2017).
6. Id.
7. Jürgen Basedow, Comparative Law and Its Clients, 62 Am. J. Compar. L. 821, 837 (2014).
8. Id. at 838.
9. Mathias Siems, Comparative Law 143–44 (3d ed., 2022); Jaakko Husa, Introduction to Comparative Law 28 (2d ed. 2022) (discussing how a lawyer approaching a foreign system shows “scholarly courage”).
10. Siems, supra note 9, at 143–44.
11. Husa, supra note 9, at 23.
12. See Harry W. Arthurs, Compared to What? The UCLA Comparative Labor Law Project and the Future of Comparative Labor Law, 28 Compar. Lab. L. & Pol’y J. 591, 607 (2007).
13. See infra Part III.
14. See infra Part IV.
15. Although United States law schools tend to distinguish between “labor” and “employment” law, this paper will simply use “labor law” to refer to the many statutes dealing with employment, collective bargaining, and workplace discrimination.
16. See Christopher J. Whelan, Labor Law and Comparative Law, 63 Tex. L. Rev. 1425, 1147 (1985) (arguing that the comparative method is useful to labor scholars).
17. Id.
18. Manfred Weiss, Reinventing Labour Law?, in The Idea of Labour Law 49 (2011).
19. This paper implicitly builds upon Christopher Whelan’s article, but it specifically advocates for labor law to incorporate the critical methods that arose in comparative law after the critical legal studies movement, in which Whelan’s paper was situated, to more effectively address the most recent shortcomings in labor law scholarship.
20. Legocentricism is where “law is treated as a given and a necessity, as the natural path to ideal, rational or optimal conflict resolutions and ultimately to a social order guaranteeing peace and harmony.” Gunter Frankenberg, Critical Comparisons: Re-Thinking Comparative Law, 26 Harv. Int’l L.J. 411, 445 (1985).
21. Arthurs, supra note 12, at 600.
22. See infra Part IV.
23. Arthurs, supra note 12, at 600.
24. E.g., Pierre Legrand, The Same and Different, in Comparative Legal Studies: Traditions and Transitions 292 (Pierre Legrand & Roderick Munday eds., 2023).
25. See generally Konrad Zweigert & Hein Kötz, Introduction to Comparative Law (Tony Weir trans., 3d ed. 1983).
26. See Husa, supra note 9, at 28.
27. Id.
28. Zweigert & Kötz, supra note 25, at 34.
29. Id.
30. Id.
31. Id. at 44.
32. Siems, supra note 9, at 85.
33. Id. at 44.
34. Id.
35. Zweigert & Kötz, supra note 25, at 44.
36. Id. at 62; Siems, supra note 9, at 36.
37. Zweigert & Kötz, supra note 25, at 62.
38. Id. at 40.
39. Husa, supra note 9, at 30, 40 (comparing comparative law to legal history, which accounts for both legal theory and sociology); Zweigert & Kötz, supra note 25, at 8 (noting that both comparative lawyers and legal historians analyze laws and their context).
40. Husa, supra note 9, at 26; Siems, supra note 9, at 14.
41. Zweigert & Kötz, supra note 25, at 64.
42. Id.
43. Id. at 73.
44. See id. at 64–73; see also Mattei & Quarta, supra note 4, at 584 (critiquing the separation of the USSR and China into different families of legal systems, Sinology and Sovietology, despite the shared Marxist-Leninist theoretical basis).
45. Mattei & Quarta, supra note 4, at 596.
46. Ugo Mattei, Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems, 45 Am. J. of Comp. Law 5, 20 (1997); see also Mattei & Quarta, supra note 4, at 579.
47. P.G. Monateri, Black Gaius: A Quest for the Multicultural Origins of the ‘Western Legal Tradition’, 51 Hastings L.J. 479, 491, 516–531 (2000) (arguing that Western law is an ideology created through identifying Roman Law as an extraordinary precursor to German and French civil law, despite Roman Law’s doctrinal incompleteness and unoriginality [non-pejorative]).
48. Formation of Contracts: A Study of the Common Core of Legal Systems 2 (Rudolf B. Schlesinger gen ed., 1968).
49. Id.
50. Id.
51. See Bauro Bussani & Ugo Mattei, The Common Core Approach to European Private Law, 3 Colum. J. Eur. L. 339, 343 (1997).
52. Schlesinger, supra note 49, at 10.
53. See Bussani & Mattei, supra note 52, at 345.
54. Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II), 39 Am. J. Compar. L. 1, 22 (1991).
55. Id. at 32.
56. See Gunther Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences, 61 Mod. L.R. 11, 11 (1998) (summarizing Alan Watson’s work that praises legal transplants for aiding in the convergence of law).
57. Id.
58. See id. at 12, 15.
59. Id. at 13.
60. Mattei, supra note 5, at 709-15.
61. Id.
62. Mattei & Quarta, supra note 4, at 606.
63. Id.
64. Id.
65. Id.
66. Maurice Adams & John Griffiths, Against ‘Comparative Method’: Explaining Similarities and Differences, in Practice and Theory in Comparative Law 279, 284 (Maurice Adams & Jacco Bomhoff eds., 2012).
67. Id.
68. Id.
69. Id.
70. Zweigert & Kötz, supra note 25, at 24.
71. Id.
72. David Kennedy, New Approaches to Comparative Law: Comparitivism and International Governance, 1997 Utah L.R. 545, 594 (1997).
73. Id.
74. Legrand, supra note 24, at 248.
75. Id. (emphasis in original).
76. Id.
77. Id.
78. Id. at 251.
79. Id.
80. Teubner, supra note 56, at 13.
81. Id.
82. Id.
83. Id.at 18.
84. Frankenberg, supra note 20, at 415.
85. Id.
86. Id.
87. Id.
88. Id.
89. Id. at 421.
90. Id. at 423.
91. Pierre Legrand, The Impossibility of ‘Legal Transplants’, 4 Maastricht J. Eur. & Compar. L. 111, 114 (1997) (“The meaning of the rule . . . partakes in the ruleness of the rule. The meaning of a rule, however, is not entirely supplied by the rule itself; a rule is never completely self-explanatory.”).
92. See Ugo Mattei, The Rise and Fall of Law and Economics: An Essay for Judge Guido Calabresi, 64 Md. L. Rev. 220, 241-42 (2005) (arguing that the law and economics movement, for instance, responded to realist lawyers’ retreat from dogmatism by inserting efficiency reasoning to “letigimize[] as scientific the ideological assumptions of dominating neoliberalism” by self-proclaiming its approach as “positive” rather than “normative” and thereby “declin[ing] any political confrontation”).
93. Id.
94. Id.
95. Teubner, supra note 57, at 13.
96. Frankenberg, supra note 20, at 414; see also Husa, supra note 9, at 443.
97. Uwe Kischel, The Comparative Method, in Comparative Law 87, 88 (2019).
98. Id.
99. Id.
100. Id.
101. Id.
102. Id. at 90.
103. Id. at 90.
104. Frankenberg, supra note 20, at 443.
105. Id. at 450; see Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology 19 (1983); Finkin, supra note 4, at 1121 (legal work grounded in knowledge from other disciplines “transcends the descriptive or prescriptive: it is pure scholarship that enriches understanding”).
106. Adams & Griffiths, supra note 66, at 301.
107. Id.
108. Id.
109. Id.
110. Frankenberg, supra note 20, at 300.
111. Id. at 296.
112. Adams & Griffiths, supra note 67, at 301.
113. Lena Salaymeh & Ralf Michaels, Decolonial Comparative Law: A Conceptual Beginning, 86 Rabel J. Compar. & Int’l Priv. L. (RabelsZ) 166, 178 (2022).
114. Id.
115. Id.
116. Id. at 186.
117. Id. at 187.
118. Adams & Griffiths, supra note 67, at 280.
119. Frankenberg, supra note 20, at 419.
120. Id.
121. See Frankenberg, supra note 20, at 419; see also Mattei & Quarta, supra note 4, at 571 (2017).
122. Cynthia Estlund, The Ossification of American Labor Law, 102 Colum. L.R. 1527, 1530 (2002).
123. Craig Becker, Thoughts on the Unification of US Labor and Employment Law: Is the Whole Greater than the Sum of the Parts?, 35 Yale L. & Pol’y J. 161, 164 (2016).
124. Id. at 168, 170 n. 44.
125. Karl E. Klare, Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law, 4 Indus. Rels. L.J. 450, 450 (1981).
126. Id.
127. Id.
128. Id. at 452.
129. See id. at 455 n.16 (citing National Labor Relations Board v. American Nat’l Ins. Co., 343 US 395 (1952), (holding that employees had no right under the NLRA to co-participation in management; those rights are alienable through collective bargaining, and employers may secure unilateral authority in the same manner)); Whelan, supra note 16, 1444 (1985) (citing First National Maintenance Corp. v. NLRB, 452 US 666 (2981) (holding that employees have no duty to bargain over plant closure that was done for profitability, even when there was no evidence that the bargaining process would not reveal a profitable outcome)).
130. See Klare, supra note 126, at 450.
131. Mark Kelman, Trashing, 36 Stan. L.R. 293, 302 (1984).
132. See Mattei & Quarta, supra note 4, at 598.
133. See Finkin, supra note 4, at 1113.
134. See Klare, supra note 126, at 456 n. 19 (noting that by distinguishing between ‘public’ and ‘private’ aspects of employment relationships, American labor law disables the government’s ability to regulate “decisions of societal consequence”).
135. Mattei, supra note 93, at 243.
136. See, e.g., Richard Posner, The Efficiency and the Efficacy of Title VII, 136 U. Penn. L.R. 522 (1987);
137. Katherine van Wezel Stone, The Post-War Paradigm in American Labor Law, 90 Yale L.J. 1509, 1511 (1981).
138. Id.
139. Id.; see Craig Becker, Democracy in the Workplace: Union Representation Elections and Federal Labor Law, 77 Minn. L.R. 1057 (1993).
140. See Christopher Whalen, Labor Law and Comparative Law, 63 Tex. L.R. 1425, 1447 (1985).
141. Arthurs, supra note 12, at 605.
142. Id. at 606.
143. Harry Arthurs, Labour Law Without the State?, 46 U. Toronto L.J. 1, 5 (1996).
144. Joanne Conaghan, Critical Labor Law: The American Contribution, 14 J.L. & Soc’y 334, 340 (1987).
145. Id.
146. Id.
147. See id.; cf. Adams & Griffiths, supra note 67, at 301.
148. Legrand, supra note 24, at 242. See generally Kelman, supra note 132, at 293 (endorsing “trashing” as a de-stabilizing interpretive technique).
149. Kelman, supra note 132, at 297.
150. Petra Mahy, The Functional Approach in Comparative Socio-Legal Research: Reflections Based on a Study of Plural Work Regulation in Australia and Indonesia, 12 Int’l J.L. Context 420, 425 (2016).
151. Id.
152. Id.
153. Id.
154. Id. at 424.
155. Id.
156. Int’l Encyclopedia of Comp. L. Collective Bargaining and the Resolution of Collective Disputes 20 § III.F (Otto Kahn-Freund & Bob Hepple eds., 15th ed. 2014).
157. Finkin, supra note 4, at 1131.
The full text of this Article is available to download as a PDF.