Hastings International and Comparative Law Review


Richard Brooks


Modern comparative law is based upon the failed Enlightenment premise of comparative law as legal science. Awareness of the earlier writings of Hellenic historians, philosophers, rhetoricians, and dramatists suggest that comparative law should be conceived as a process of political deliberation. Herodotus, Thucydides, and Polybius suggest how history frames the choices which comparativists must make. Aristotle and Plato demonstrate how to deliberate about conflicting laws and legal regimes. The rhetorician, Isocrates, argues for rhetoric to be brought to bear on the debates about different legal regimes. The Greek dramatists portray the anguish and regret which necessarily follows the final choice among laws. This Hellenic vision of comparative law as deliberative choice is illustrated in the modern debates over a constitution for Iraq, the use of foreign laws in U.S. Supreme Court decisions, the U.S.-European debate over strict liability, and a comparative approach to the issue of abortion.