Meeting of the Minds: The Franco-American Origins of Modern Comparative Law, 1900-1940

Abstract

This dissertation traces the development of a modern approach to comparative law that arose out of the fin-de-siècle critique of nineteenth-century legal thought in France and the United States. This critique undermined a mode of legal reasoning that assumed the common law and the civil code were internally-coherent and gapless systems of rules from which judges could logically deduce legal outcomes. As rapid social and economic changes swept across the Atlantic World, jurists influenced by reform movements sought to make the law more responsive to changing conditions, while also addressing the problem of legal indeterminacy posed by the critique of deduction. One group of jurists—including Raymond Saleilles, Édouard Lambert, Roscoe Pound, and John Wigmore—responded to these challenges by turning to comparative law. Because they could no longer pretend to access static legal concepts, these jurists worked to achieve stability by formulating the best legal solution for a particular time and place—replacing timeless Truth with the historicized, spatial truths of comparative law. Before the First World War, however, French and American comparativists struggled to get beyond the differences between the common law and the civil law. Unlike the social theorists of the day, whose transatlantic exchanges constituted a veritable marketplace of ideas, the comparativists of the Progressive Era and the Belle Époque held each other at arm’s length. This changed, however, when the Great War led to a profound realignment of intellectual affinities. As a result of the collateral damage suffered by Germany’s scientific reputation, French and American jurists turned to different sources for legal exchange—each other. During the interwar period, Franco-American jurists sought to achieve a rapprochement that would unite their laws in a “common law for the League of Nations.” This alliance finally bore fruit during two International Congresses of Comparative Law in the 1930s, but the intervening exchanges did not constitute a marketplace of ideas. Rather, they are best understood as a protracted contract negotiation over the terms of comparative law. Though the French and the Americans ultimately achieved a “meeting of the minds,” this outcome was far from certain when the century began.