In an era of prolific globalization comparative law should be flying high. Instead, it has undergone a crisis of confidence, with prominent scholars calling into question some of its fundamental assumptions. A 2007 article, “The End of Comparative Law,” suggests that, among other problems, meaningful comparison of legal issues is impossible because it would require understanding the “historical, social, economic, political, cultural, religious, and psychological contexts of legal rules.”
Russell Miller views things differently. A professor at Washington and Lee Law School for the past four years, Miller rejects the notion that comparative law is at an end. Instead, he sees a transition from a solitary scholarly enterprise to a collaborative, sometimes chaotic, conversation among scholars deeply immersed in their own legal cultures. For Miller, this “lived” comparative law allows for greater richness and depth because it removes the requirement of near omniscience from any one scholar, and allows direct exchanges between a large, self-correcting community of scholars.
Ironically, despite his innovative approach, Miller has personified the classic paradigm of the comparativist as, “a scholar journeying in exotic lands”. He lived and worked in Germany for three years, first as a Bosch Foundation fellow working in both the German Constitutional Court and the European Court of Human Rights and then as a Research Fellow at the Max Planck Institute in Heidelberg. He also earned a L.L.M. from Johann Wolfgang Goethe University in Frankfurt. These unique experiences gave him a solid grounding in German law and legal culture – and set him on his comparative law path.
One of these opportunities came when Professor Miller met Peer Zumbansen, a fellow clerk at the German Constitutional Court. They shared a common passion for the law and recognized a need for greater understanding in English jurisdictions of the work being done in Germany. Together they founded the German Law Journal. “We would meet twice at month at my apartment in Frankfurt . . . and ask ourselves what legal issues are percolating, and then with smoke coming off of our fingers we would type case reports and comments in a manic fashion,” said Miller.
From its humble origins as a bi-monthly email newsletter, the German Law Journal has become the leading “online, peer-reviewed” law journal of any subject, and the leading law journal based in Germany, whether online or in print. The Journal, a forum for “developments in German, European and International Jurisprudence,” has come to embody the new comparative approach. By garnering submissions from scholars worldwide about German legal issues, as well as articles from German scholars on a range of topics, the Journal provides a constant, though sometimes only implicit, engagement with the Germanic legal approach.
Professor Miller’s approach will bear fruit this year in the form of two major Global Legal Traditions: Comparative Law for the 21st Century (forthcoming from Lexis-Nexis) is the first generalist casebook of comparative law in a generation. The Constitutional Jurisprudence of the Federal Republic of Germany (forthcoming from Duke University Press) is a weighty, deeply-contextual treatise on German constitutional law. In both projects Miller has sought to rigorously implement his unconventional theory and approach to comparative law.
There are more innovations to come from the former linebacker (Washington State 87-91). Studying the comparative theory and method of other disciplines will be his next project. Miller has begun to explore “how and why literature, history, religion, and other textual disciplines ‘do’ comparison.” Filled with enthusiasm, Miller concludes: “Comparative lawyers stand to learn a lot from our fellow travelers in other disciplines.”
M.M Siems, The End of Comparative Law, 2 Journal of Comparative Law 133 (2007 Russell A. Miller, The German Law Journal as “Lived” Comparative Law, 10 German Law Journal 1309-1318 (2009), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=1208 2011 Law Journals Rankings, Hall Law Library, Washington and Lee University at http://lawlib.wlu.edu/LJ/index.aspx. (Results: #1 – peer reviewed/online – all countries/allsubjects; #1 – all subjects/all formats – Germany; #1 – “European Law” – non-US/all formats; #2 – “European Law” – all countries/all format.)