Foreword to the sections on Americanization, Europeanization and Globalization, by Jens DrolshammerForeword

1.     Basic information on the project

Beyond the General Introduction to the Anthology on Swiss Law and Legal Culture, the following information may be of help to the user and reader regarding the parts on the process of Americanization, Europeanization and Globalization.

The origin of the project of the Anthology of Swiss legal culture lies in the Legal Culture Club, an institutionalized venue of internationally minded law professors, which regularly meets and discusses legal matters of mutual interest at the home of Jens Drolshammer. The original members associated with the project were professors Daniel Thürer, Thomas Cottier, Wolfgang Ernst, Thomas Probst, Cyril Rigamonti and Hans Ueli Vogt. The general project is an open project attempting to include several other relevant topics and fields of law in order to convey a balanced and holistic view on Swiss law and legal culture. Jens Drolshammer was the spiritus rector and – nolens, volens – the driving force of the project.

The project begins as a joint venture between Thomas Cottier’s part on International Law and Jens Drolshammer’s parts on the processes of Europeanization, Americanization and Globalization of Swiss law and legal culture, which cover key areas and forces shaping Swiss law and legal culture. All three parts edited by Jens Drolshammer include contributions penned up until present day although all have different starting points. The part on Americanization covers the time period from the formation of the Union of the States of North America towards the end of the 18th century. The part on Europeanization covers the time before and after World War II while the part on Globalization concentrates on the period after World War II and in particular, the time following the end of  the Cold War.

The selection and the comments on the texts have to be considered against the background of the editor’s roughly 50 years of professional experience and work in academia and private practice in international matters. The editor has lived and worked in post-World War II and post-cold war times and had a strong transatlantic focus with a continuing exposure to American legal practice and academia. The majority of the texts that were written after World War II which were selected and commented on had been authored – this only became evident at the end of the work – by friends, colleagues and teachers of the editor. In that sense, the parts on Americanization, Europeanization and Globalization present a “walk” through the professional life of the editor.

The project of an Anthology leaves little room for the personal mindset and thinking of the editor as an international lawyer. In order to arrive at the final selection of more than one hundred texts, the editor had to peruse several hundred texts and read and comment on roughly two hundred. The number of pages of the texts or excerpts of texts included in the three parts is over two thousand, the number of texts worded and collected by the editor is about five hundred The selection and comments have yet to be subject to professional discussion amongst colleagues and interested readers or users, if ever there is or will be time for that. The three parts are – although related – standalone bodies. They are based upon a rigidly applied identical concept of selection and commenting. The texts are reprinted in a facsimile manner in the electronic and the print version as they have appeared in the cited originals. They contain footnotes and bibliographical references and have been reprinted in the original language, in which the authors wrote the texts.

The majority of the texts are short standalone texts; a minority are excerpts from longer works, such as books and monographs. The sociology of the authorship and the languages used show that the, mainly Swiss authors increasingly used the English language to write their texts and that hardly any texts have been formally translated. The comments, the biographical references and the biographies are completely worded in English, the lingua franca of present international discourse on the internationalization of law. Since the editor in private practice and in academia has mainly been involved and specialized in international matters and has lately specialised in the topic of Globalization and Americanization of law and legal profession he has frequently written on those subjects and therefore has included a few texts, which he penned himself. An important reason for that is, that the process orientation of the parts and the focus on the under researched phenomenon of “how law travels” and “how law impacts” are not a traditional and accepted category of academic endeavours of which the editor was never a full subscriber to.

The parts on Americanization, Europeanization and Globalization on Swiss law and legal culture will simultaneously appear as a print and as an electronic version. This is based upon a conscious decision to conceive the totality of texts as a structured aggregation of information to be subjected to state of the art methods of knowledge generation and knowledge management at the forefront of communicating about law internationally. The online platform (to be disclosed later) was created using the open source software WordPress. The structure of the Anthology is reflected in the sites’ navigation. Each contribution is a separate site having a fixed URL (permalink) and includes a link to the original text which can be downloaded in PDF format. The whole platform is freely accessible and optimized for indexing by search engines (Google, Bing, etc.).

The main purpose of the electronic version is to facilitate the accessibility and usability of the information by an unknown group of potential users and readers. The texts of the three parts are therefore conceived as “tools”, the merit of which will be brought to reality primarily with the actual uses. The style of the editor’s comments are therefore not literary or scholarly in a traditional sense. Because of the complexities of the topics covered, they rather are a structured and linked collage leading to and opening up a Denkraum (thinking space) (Abi Warburg). Some of the texts of the editor, the introductions for example, in that specific context are non-footnoted descriptions and many of the texts of the editor in the sub-parts background and summary retain or paraphrase at times elements found in the biographies and in the texts of the authors themselves. The texts are to convey and breath a cosmopolitan air and are consciously and unconsciously linked by a holistic and generalist view of legal education, scholarship and practice, which the editor believes to be essential for thinking and particularly acting as an international lawyer nowadays.

2.     Key concepts applied

Beyond the general introduction of Thomas Cottier and Jens Drolshammer the following remarks concerning some concepts used by the editor in the parts of Americanization, Europeanization and Globalization, may help the user and the reader to better understand the approach used in order to accommodate the fact, that legal research has not yet dealt with the phenomena of Americanization, Europeanization and Globalization in a comprehensive and settled manner.

The editor used specific tools such as guiding principles, which are identical and essential to the three parts. These guiding principles although not yet developed and distilled in dogmatically accepted terminologies and concepts have a function of “generators” in the design of the texts of the editors.

The Anthology of texts for instance uses a Leitmotiv for each topic area dealt with. The Leitmotiv of the Anthology of texts as a whole is “See it fresh – see it whole – see it how it works” by the American lawyer Karl Llewellyn. The part of the process of Americanization uses the Leitmotiv “America does not exist”, a title of a children story by the Swiss writer Peter Bichsel – as well as  “…and to define America and her athletic democracy”,  a statement of the American writer Walt Whitman in his work of poetry Leaves of Grass. The Leitmotiv of the part on the process of Europeanization is “Les Suisses se levent tot, mais se reveilent tard” (“The Swiss get up early but wake up late”) by the Swiss visionary on Europe Denis de Rougemont. The Leitmotiv of the part on the process of Globalization is a statement “The World – but – I see you” by the Swiss artist Remy Zaugg conceived for a mural in a building of the federal administration in Berne, which was never realized.

Besides those overarching Leitmotiv, the three parts sail under the flag of the metaphors “How law travels” and “How law impacts”, using an analogy to a seminal essay of the literary critic Edward Said “How ideas travel” and “How ideas travel reconsidered”. The content on this metaphor is open and methodologically not defined and settled.

The parts of the Anthology further use a modern concept of mindset and attempt to establish the notion of a “globalization adequate mindset”.

The key notion of arranging and grasping the evolution of the travels of law in the respective areas is the making use of a process orientation of the selection and the description of the texts. This process orientation in the description of the legal process of Americanization, Europeanization and Globalization brought about a necessity to elaborate a framework of reference of those processes in the individual introductions. The basic reason for that was that the results of the extensive search were patchy and inhomogeneous; moreover, the results showed that the processes as such have yet to be made part of a generalized, accepted and coherent analysis.

It is moreover key to the three parts Americanization, Europeanization and Globalization that they go beyond law to legal culture. Irrespective of the state of sophistication of cultural science and in particular legal culture, the texts of the editor use such a broader perspective. Although the parts of the Anthology are basically a text based Anthology, the texts therefore include wherever possible references to institutional environments and to individual lawyers as personal shapers of legal reality as essential parts of Swiss legal culture. Although any selection and any comments are unconsciously marked by subjectivity of the author and commentator, he attempted not to take a judgmental stand on some of the critical phenomena dealt with in the texts selected.

3.     A look into the future

The findings and comments of the editor are a mere quarry of building blocks, which are to be further analyzed, described and complemented in later studies. In that sense, the texts are a mere basis for the determining of an agenda for further possible research. This will be up to others.

We are speaking here of a thematic beginning and not an end. It is a first step to the more visible staging of Swiss law and legal culture – mise en scène – in the legal process of internationalization and globalization. We limit ourselves to make a playful reference to some passages of the valedictory lecture of the editor (see text 2.42 of the part on Americanization with the title The Global Groove of the Harvard Yard – Personal aspects of the person in the Globalisation and the Anglo-Americanisation of law and legal profession). The basis of the lecture was a collection of essays, which appeared in December 2008, in particular the long theoretical closing text “The path to a turn to the lawyers – American concepts and ideas for a blueprint to take it global”, which the editor mainly conceived and wrote during his stays at Harvard Law School between 1999 and 2008. Regardless of the fact, that the editor attempted at that time to conceptualize a personalistic approach of a New International Lawyer, primarily by using American academic experiences, the specific treatment of that issue in the valedictory lecture might serve as an adequate and analogous methodological path for further conceptualizing and further research based upon the findings in this Anthology of the concepts “how law travels” and “how law impacts”. It would be too easy a way out to just replace in the following statements and language sentences the key notion of personalized approach to a New International Lawyer by for instance Switzerland in the global legal process. Nevertheless the following statements and language sentences in the valedictory are in the opinion of the editor useful and relevant to the task of whoever wants to deal as a scholar with the results of the Anthology. We take the liberty to advocate a playful use and development of methodological tools to approach future work.

As regards to the statements we cite from the valedictory lecture:

These glimpses of the future requiring a targeted objective in the form of a vision are, in my opinion, another characteristic of American law and academic culture. This is not to advocate an old-fashioned romantic and nostalgic professionalism. Rather, it is about a forward-looking construction of a new and globalized virtual community of lawyers in international legal practice in the widest sense. Turning theory into reality means in this context developing a professional culture and a professional association that lives up to the name of a “Visible College of International Lawyers”. Originally confined to international law, the college would become globalized by incorporating all relevant roles of the profession of New International Lawyer. These eight statements are about specific characteristics of American law and academic cultures that attractively influence the conceptualization and subsequent operationalization and make possible an understanding and discussion of this issue. This treasure hunt guided by the melody of Play Me the Song of Pan ultimately lead to the following findings and fragments from American legal and academic culture:

- Legal thought and action which are motivated by exceptional curiosity and openness, which are bottom-up and facts-and issue-driven, and which focus on legally relevant realities and are persistent in their observation and investigation – “see it as it works”. (1)

- The equally valid incorporation of “behavior’ and “effect” alongside the “being” of legal actors – all embedded in a special connection between “knowledge” and “activity”. (2)

- A conscious positioning on a meta-level, a deliberate choice of a global perspective and, associated with this, an implicitly academic discussion of globalization. (3)

- An understanding of legal practice as soon as possible after the event as a legal process, and a striving to tackle and describe change in this legal process as early as possible. (4)

- A situational and issue-related use of theory as the foundation of a theoretical conceptualization of New International Lawyers from a global perspective – situation analysis in the form of a situationality and activity analysis as a platform for a conceptualization and operationalization of the New International Lawyer. (5)

- An unbiased relationship with an appropriate and contemporary interdisciplinarity between different areas of the humanities and social sciences in the concretization of person, situation, position and profession of the New International Lawyer – a dizzying “anything goes”. (6)

- An academic openness to raising the issue of change from “modern” to “postmodern” in the history of ideas, including the effects of globalization on law and the legal professions, and to including this within an overall perspective. (7)

- A imaginative and optimistic “mindset” concerning other key ideas and visions for the future roles of “international lawyers” in globalised international practice –
- from the “invisible college of international law” to the “visible college of international law” and the “visible college of international lawyers”. (8)“

In the staging of the investigation in the valedictory lecture in “language sentences” for further explanation of the reflection space we cite:

“Having provided an approach through a number of statements to the “exhibition of the reflection space”, there now follow nine guiding principles and nine key quotations as important signposts for a discursive approach to the exploration of a personalistic approach to the understanding within the “reflection space” of legal practice in the context of globalization With one interesting exception, I have deliberately chosen key quotations from Anglo-American writers, mainly from the United States. They are also masters of compression whose sentences are an art form in their own right, guiding us on our journey through the “exhibition space” and serving as “signposts” to the “reflection space”. They follow a descriptive and thematically inspired dramaturgy and adopt central approaches and perspectives to this personalistic approach.

1. Suspicion towards new ideas
Guiding principle: This approach to the personalistic conceptualization of the New International Lawyers and their networks as key actors in globalised legal practice is hindered by certain preconceptions about globalised legal practice:
Key quotation:
JOHN LOCKE (1632-1704), an Englishman, said:
“New opinions are always suspected, and usually opposed, without any other reason, but because they are not common.”

2. Perseverance and stagnation in law
Guiding principle:
This personalistic approach discusses the evolution of law through legal practice in the course of globalization from a global perspective.
ROSCOE POUND (1870-1967), who for a long time was Dean of Harvard Law School, wrote, sitting shaded from the sun at his bespoke round furniture:
Key quotation:
“The law must be stable, but it must not stand still.”

3. From principles to personalities to be motivated
Guiding principle:
This personalistic approach is about the “actions” of active individuals who, as legal actors, play a key role in globalised legal practice.
Key quotation:
OSCAR WILDE (1854-1900), an Irishman, wrote the following while staying on Lake Geneva:
“It is personalities, not principles, that move the age.”

4. The dishonesty of striving for systems
Guiding principle:
This personalistic approach is an American-style, issue-related and topical way of dealing with new realities that seeks to avoid systematization and dogmatization.
Key quotation:
FRIEDERICH NIETSCHE (1844-1900), who collaborated with JACOB BURCKHARDT in Basle at a time of anti-American sentiment, and is a German who is currently enjoying an unprecedented revival in the United States, wrote in Sils Maria in the Engadine:
“Distrust all systematizers and avoid them. The will to a system shows a lack of honesty

5. Common sense as the foundation of the scientific
Guiding principle:
This personalistic approach is also a matter of pragmatic, cosmopolitan philosophical common sense, and not simply dry, dogmatic hard science.
In the words of OLIVER WENDELL HOLMES SR. (1809-8094), professor of medicine at Harvard Medical School, father of Justice OLIVER WENDELL HOLMES JR, and a member of the Metaphysical Club together with WILLIAM JAMES and CHARLES S. PIERCE, who were the fathers of American philosophical pragmatism:
Key quotation:
“Science is a first-rate piece of furniture for a man’s upper chamber, if he has common sense on the ground floor.”

6. Finding the essential in what is small-scale and concrete.
Guiding principle:
This personalistic approach is about observations, investigations and descriptions that are outward-looking and seek to transform something “small” into something that may be “larger”. In the words of the Indian author and most of all film maker SATY AJIT RAy (1921-1992).
Key quotation:
“It is the presence of the essential thing in very small detail which one must catch in order to expose larger things.”

7. Recognition as looking from the outside to take an active part in the process of change.
This personalistic approach is about active participation in the form of observation, investigation, description and shaping of evolving legal life in the context of globalization.
Key quotation:
The American philosopher, educationalist, sociologist and legal expert JOHN DEWEY (1852-1952), who brought American philosophical pragmatism to its first flowering, wrote:
“From recognition as looking in from outside to recognition as taking an active part in the drama of an ever-changing world – that is the historical transition whose history we have followed.” (Use English original if available)
Guiding principle:

8. This personalistic approach is about incentives to the observation, investigation and description of globalised legal practice as something new and different. RICHARD RORTY (1931-2007), was a close friend of JORGEN HABERMAS. After the revival of pragmatism, he left his post as professor of philosophy at Princeton University in 1982, was professor of humanities at the University of Virginia from 1983 to 1998 until he became an emeritus, and then served as professor of comparative literature at Stanford from 1998 to 2004.
Key quotation:
“People should stop worrying about whether what they believe is well founded, and instead should worry about whether they have managed to summon up enough imagination to think of interesting alternatives to current beliefs.” (Use English original if available)

9. Imaginatively devising interesting alternatives to current beliefs.
Guiding principle:
Ultimately, the theme of the personalistic conceptualization of New International Lawyers and their networks as key actors in complex globalised legal practice is a rejection of hasty, non-analytical opinions and values to undertaking questioning with an inquisitorial mindset – a seemingly simple process which as jurists we often fail to adopt be it through complacency or ignorance.
Key quotation:
The American author GERTRUDE STEIN (1874-1946) wrote in Paris:
” What is the answer? .. In that case, what is the question?”

These nine guiding principles and nine key quotations are important signposts in investigating the conceptualization and operationalization of the New International Lawyer. They reflect various standpoints, from which the multidimensional “reflection space” can be measured and triangulated, and are strategic viewpoints in investigating the personalistic approach. The approach to this investigation strategy is to be found largely outside the realms of traditional continental European legal thought. This methodology results from taking account of the ruinous state of pluralization, digitalization, loss of autonomy and systemic collapse as a characteristic of the Brave New World of law in the age of globalization. It is inspired by relevant legal factors of a pluralist order, a more associative organization of material, a politicized understanding of law and of the order in concrete problems, and can be seen as a postmodern mode of thought. As with the investigative methodology itself, we believe this also applies to the description chosen here in the form of a staging of the investigation in the “reflection space” through art forms.”

Of course, the possible conceptualization of the legal process of the internationalization of Swiss law and legal culture would be – as the American say – “an elephant too big to chew”. There is however no way around facing those challenges. The editor suggests to go to Frank Lloyd Wright’s, Guggenheim Museum in New York City and “to walk up and down the curved ramps”. This is a metaphor used by the composer and conductor Pierre Boulez in a workshop on his work Répons during the Lucerne Festival for in a space and place, which allows the international lawyer to simultaneously look at every step into the future, the present and the past.

4.     Persons and institutions involved

The editor conducted the research and work alone as an individual researcher without the support of an infrastructure. However, the project being part of modern knowledge generation and knowledge management in legal matters meant that the editor never was alone. He depended on essential contributions from a variety of persons who, after a long walk, made it possible that an electronic and a printed version can be published.

The editor wishes to thank Werner Stocker, the managing co-owner and chief executive of DIKE Verlag AG in his function as publisher of the electronic and printed version. Werner Stocker from the outset in the Legal Culture Club and for about four years was the organizational and administrative master of the project of this Anthology. He has dealt patiently with the trials and tribulations of coping with representatives of academia. Despite the fact, that the project so far has lacked a commensurate project infrastructure and an adequate financing, he “pulled it through” and accompanied the editor in making sure that the publications become a reality. The editor further thanks the members of the Legal Culture Club originally part of the project, Professors Daniel Thürer, Cyril Rigamonti, Thomas Probst, Wolfgang Ernst and Hans Ueli Vogt for their initial thrust in getting the project going and for their critical comments as early birds on the electronic versions after the uploading on the website

Since it was the decision of the general editors and of the publisher to simultaneously publish the works on an online platform, the editor is thankful to Raphael Fisch of DIKE Verlag, who built the structure of the website. Raphael Fisch presently is a candidate for a PhD degree at the University of St. Gallen, working under professor Florent Thouvenin at the Forschungsstelle für Informationsrecht (Research Center for Information Law) (FIR HSG). The editor is thankful to Irene Bangerter of DIKE, who performed the tedious task to scan more than 100 texts in an up-loadable form.
The editor thanks his colleague and friend professor Thomas Cottier of the University of Bern, who believes in the novelty and charms of the project, for writing and collecting his part on International Law and assisting the editor as a single practitioner with his vast infrastructure of the World Trade Institute at the University of Berne. The editor is particularly grateful for his systematic analysis of the manuscripts as part of an agreed upon peer review. Jack Williams, a collaborator of Thomas Cottier – a junior research assistant and British gentleman of a special kind – has to be thanked for his valuable contribution as a language editor of the lingua franca English.

The editor is particularly thankful for his friend and colleague Urs Gasser, Executive Director of the Berkman Center for Internet & Society and Professor from Practice at Harvard Law School for his willingness to critically accompany the three parts and making accessible a new type of software developed at the Berkman Center as a state of the art educational and teaching tool. It gives the editor great joy and comfort that this work will be accessible to larger circles in the legal world by institutions, where he had the privilege to work several fall terms in the years of 1999 to 2008 as a visiting research professor at the European Law Research Center at Harvard Law School. Of professor Gasser’s team, the editor thanks the summer clerks at the Berkman Center Leigh Graham, Olivia Conetta, Alysa Batzios for having initially carefully edited the manuscripts of June 2013 from an English language perspective. Dana Walters has to be thanked for bringing about a state of the art sub-license, loading the texts up to the respective new program of the Berkman Center of Harvard University and helping with an adequate outreach program.

In the personal offices of Drolshammer Strategy & Law’s the project – a Tower of Bable in the myriads of modern IT – Technology – had to be worded, arranged, corrected and rearranged at several stages. The editor is particularly grateful to his part time student assistants, without which he would have lost faith in the do-ability and feasibility of the project. Benjamin Seitzinger was the early responsible student assistant, creating the electronic foundations of the project. The editor particularly thanks his student assistant Gianni Trezzini for his skills and perseverance. He has worked between June 2013 and the first half of 2014 on the manuscripts and put them into a printable version as well as uploaded all the documents on the electronic website.

In view of the fact, that the three parts lead up to the present day, particularly in view of the fact, that the majority of texts with the significant time delay date from the early years of the 21st century, the cut off day of July 2013 is important to take note.

The editor and author could not have done the work without the presence of his children Nils, Liv and Unna, the editor’s pride and the promise for a future who are the noblest and smartest teachers of their father.

The editor hopes that the initial publications of the parts of Thomas Cottier and Jens Drolshammer will led to an adequate project infrastructure and financing and to further contributions in other areas of law and legal culture in due course.

Law is a key phenomenon and asset of a culture and has to be studied, stated and communicated to the world of readers and users, who nowadays are spread all over the globalized world.
We may end with the Anglo-Saxon pessimism of Samuel Beckett, an Irishman in Paris: „Ever tried. Ever failed. No matter – try again, fail better” or the American optimism – the Leitmotiv of this Anthology of Swiss law and legal culture – of the great American jurist Karl Llewellyn “See it fresh – see it whole – see it as it works”.
“Das wär’s dänn gsi” –
“That’s all folks”