By Anna Bleichenbacher, PhD student, University of Basel[1]
I. Prologue
Compare how it felt to speak your first words in a foreign language with how it feels now after years of practice. Once we can do things as a matter of habit, they start to become automatic for us. Deliberately framing something in a different perspective – what the Russian literary theorist Shklovsky said about the role of art in his concept of ‘defamiliarization’ (‘ostranenie’)[2] – challenges that automatic response. Defamiliarization is also possible in legal research. It enables us to take a new look at our own jurisdiction and how we work within it.[3] Studying and researching only in our home jurisdiction makes everything we do there feel natural to us – even inevitable. All that changes once we see it from the outside.
Breaking through this habituation and seeing familiar things with new eyes can be facilitated by a research stay abroad. In 2024 the author of this blog entry undertook a six-month research stay at the University of Edinburgh. This entry deals with the differences in the research and teaching between Edinburgh and Basel, as well as the new perspectives the author gained from her time abroad. She experienced an ‘ostranenie’ that challenged her automatic assumptions of how the law had to be.
II. Defamiliarization as an artistic and literary technique and the experience of studying law
Writing of the function of art and literature, Shklovsky explained: ‘The device of art is the “ostranenie” of things and the complication of the form, which increases the duration and complexity of perception’.[4] He argued that the observer should be engaged with the artwork over a long period of time and should have trouble understanding it, but that this would ultimately be rewarded with a lasting memory.[5] Shklovsky’s concept shaped the art of the 20th century significantly, and its influences were felt in the dada, postmodernist and epic theatre movements, and even in science fiction. The concept of ‘ostranenie’ challenged the understanding of an ‘economical art’ prevailing in the early 1900s. Economical art stood for the view that the complexity of the world should be reduced in any pictures and texts made about it.[6]
This comparison between one of the most important artistic and literary theories of the 20th century and the author’s simple stay abroad may seem presumptuous. But I hope that the following arguments will justify the analogy.
First, Shklovsky’s own work gives hints of defamiliarization in his view of his own homeland. His work Zoo, or Letters Not about Love (1923), consists of an exchange of letters with a woman who failed to requite his love. He wrote the book while in exile in Berlin. Masked behind the guise of a romantic relationship, the book really seems to speak of Shklovsky’s own deep love for his lost home in Russia.[7]
Second, in Art as Device (1917), he proposes examples for a better understanding of the concept of defamiliarization. Among other things, he refers to Tolstoy’s Kholstomer (1886). In this story, Tolstoy uses a horse to explain the legal concept of property. He has the horse tell us:
‘Such are the words “my” and “mine”, which they use to talk about different things, creatures, topics, and even about land, about people, and about horses. They agree that only one person may say “mine” about any particular thing. And the one who says “mine” about the greatest number of things, in this game whose rules they’ve made up among themselves, is considered the happiest.’[8]
Shklovsky may be read as making the point that abstract legal concepts such as property call for a more detached view if we are to see them for what they are.
Third, legal scholarship is no stranger to the idea that looking to something foreign leads to a more precise understanding of the things that are one’s own. Part of the purpose of comparative law is to better understand one’s own system by seeing it from a distance. This different view brings new findings to light. It also allows us to scrutinize our understanding of what the law is or what it should be.[9]
III. Study of mixed law jurisdictions as a factor in knowledge gain
Scotland has a mixed legal system. It unites influences of the common as well as the civil law tradition. For someone coming from a civil law jurisdiction, studying a mixed law jurisdiction offers three key advantages.
First, access to the common law may be easier through a system which combines influences from both civil and common law.[10]
Second, in an increasingly globalized society, it is more and more important to take an interest in other jurisdictions, even if one does not practise comparative law in the ‘proper’ sense.[11] New insights are helpful to better understand differences and otherness in legal pluralism. Mixed law jurisdictions present a variety of legal traditions and are therefore laboratories of comparative law.[12]
Third, and this is partly related to the last point, the close study of a foreign legal system may be beneficial to improving one’s own law. In particular, small jurisdictions such as Switzerland can benefit from investigating other systems.[13] For instance, mixed legal systems can show a possible way of dealing with questions relating to common law in private international law. Consider the following illustrative question: Switzerland does not possess a domestic trust law of its own. However, it is still possible to choose Swiss law as the law governing atrust (cf. art. 149c para. 2 of the Federal Act on Private International Law).[14] In such a case, courts would be obliged to apply Swiss law to the trust.[15] When trying to find appropriate legal provisions (e.g. from property law, corporate law, or the law of contract), a better understanding of the functions of the trust is helpful. A mixed legal system, such as Scotland, which has already integrated the trust into its own civilian-influenced system of property, could give valuable insights.[16]
VI. Beware of oversimplification
When trying to understand a foreign jurisdiction, outsiders may find it easier to simplify unfamiliar terms and explain them in words they already know. The concept of ‘ostranenie’ sheds a light on the need for complexity and challenging oversimplification. When approaching a new jurisdiction wishing to conduct comparative legal research, scholars are required to broaden their scope.[17] At this stage of comparison, one needs to look at the whole picture by trying to understand foreign legal institutions in all their nuanced detail, without jumping to conclusions. This is a more challenging task than just assigning a familiar term to a foreign institution without grasping the complexity of it. Moreover, oversimplification can lead to a point where it becomes an error, such as explaining an English trust as an institution involving double ownership.
Once we understand the foreign legal concept, we are able to translate and explain it in terms that are familiar or at least understandable in our own legal system. This factor of added complexity is intellectually challenging at first. But if we pursue it seriously, it leaves us with more valuable insights and, thus, a more rewarding result.
V. Culture and moving beyond the transmission of doctrine
Law is culture, and culture is law. The law and the living law are inherent and specific to each culture, which is why they differ from culture to culture.[18]
One important influence on legal culture is the difference in legal education and research across legal systems. In Switzerland, legal education at university is mainly designed to fit the prerequisites of working as a lawyer. The universities usually endeavour to engage in quality assurance of the legal professions (e.g. bar exam preparation courses, training events for the practice, numerous publications aimed at practitioners, such as case law overviews).
In contrast, in the United Kingdom, there are certain tensions between universities and practice. Legal scholars at universities see themselves as working in the larger field of the humanities, while law firms would like to see ‘ready-to-use’ practitioners emerging as graduates from universities. The incentive to obtain a Masters and especially a Doctoral degree in the UK stems mainly from an academic interest,[19] whereas in Switzerland, a Masters degree is a prerequisite for admission to the bar, and many (prospective) practitioners also obtain a Doctorate.[20]
In my opinion, to enhance critical thinking and creative problem solving, students should be encouraged to think more freely, and, therefore, pure knowledge-transfer should take a back seat in legal education. In Scotland, with its separate legal system in a mixed tradition, legal scholars seem especially well-placed to think more creatively and freely about the kinds of legal rules their system might develop to suit its own special legal culture.
VI. Closing thoughts
In closing the circle, let us return to the analogy of someone gradually becoming habituated to speaking a new foreign language. We know that defamiliarization challenges habituated ways of thinking and speaking. But there is a special kind of defamiliarization that comes from saying those familiar foreign words aloud in the foreign country where they belong. They take on a different meaning.
So it is with a research stay abroad. Moving to a new location is a reason to become familiar with a new legal system, to get to know the prevailing academic approach there, and to change one’s own perspective. Shklovsky showed us how art defamiliarizes by adding dimension to the everyday and tearing the audience out of their routine. For legal researchers, it is the stay in a foreign legal system that enables their new view on the familiar and adds new dimensions to their research. Innovative work isn’t born behind closed doors.[21]
[1] A modified version of the text on hand was first published in the Swiss journal “recht” (Anna Bleichenbacher, ‘Erkenntnis durch Verfremdung’ (2025) recht 59 et seq., available at https://recht.recht.ch/de/artikel/01re0125im/erkenntnis-durch-verfremdung). I would like to thank Prof David Fox and Prof Alexandra Braun for their highly valued comments on an early version of the piece on hand, as well as Prof Braun for her support during the research stay as part of the academic sponsorship.
[2] Viktor Shklovsky, ‘Art as device’, in Alexandra Berlina (trans and ed), Viktor Shklovsky, A Reader (Bloomsbury 2016) 73, 79; Jennifer Wilson, ‘Selected Essays, Jennifer Wilson on Viktor Shklovsky’ (The Point Podcast, 9 April 2024), <https://thepointmag.buzzsprout.com/1791285/episodes/14857943-selected-essays-jennifer-wilson-on-viktor-shklovsky> accessed 28 May 2025, from 09:56 min.
[3] Inspired by Alexandra Braun, Presentation at Edinburgh Law School Research and Impact Celebration, 13 June 2024, where she reported on using “comparative law as a tool to defamiliarize, in order to familiarize one with one’s own jurisdiction”.
[4] Shklovsky (n 2) 80, cf. also 93.
[5] Alexandra Berlina, ‘Translator’s Introduction’, in Alexandra Berlina (ed), Viktor Shklovsky, A Reader (Bloomsbury 2016) 1, 23.
[6] Shklovsky (n 2) 80; Erlich, Russian Formalism: History doctrine (4th edn, De Gruyter, 1980) 176.
[7] Wilson (n 2) from 29:52 min; Wilson, ‘The Love Letters That Spoke of Everything but Love’ (2021) New York Times online 13 February 2021 <https://www.nytimes.com/2021/02/13/books/review/zoo-viktor-shklovsky-elsa-triolet-letters-not-about-love.html> accessed 28 May 2025.
[8] Shklovsky (n 2) 83.
[9] Pierre Lepaulle, ‘Function of Comparative Law’ (1922) 35 Harvard Law Review 838, 858.
[10] Cf. Kenneth G. C. Reid, ‘The Idea of Mixed Legal Systems’ (2003) 78 Tulane Law Review 7, 17.
[11] Reid (n 10) 18.
[12] Cf. Jacques Du Plessis, ‘Comparative Law and the Study of Mixed Legal Systems’ in Mathias Reimann and Reinhard Zimmermann (eds.) The Oxford Handbook of Comparative Law (2nd edn, OUP 2019) 474, 499 et seq.
[13] Reid (n 10) 18, 35.
[14] Although Switzerland is a contracting state of the Hague convention on the law applicable to trusts and on their recognition.
[15] Stefan Eberhard and Andreas von Planta, ‘Art. 150 IPRG’ in Pascal Grolimund et al. (eds), Basler Kommentar Internationales Privatrecht (4th edn, Helbing Lichtenhahn 2021) N 15; Nedim Peter Vogt and Delphine Pannatier Kessler, ‘Art. 149c IPRG’ in Pascal Grolimund et al. (eds), Basler Kommentar Internationales Privatrecht (4th edn, Helbing Lichtenhahn 2021) N 7 directly assume a corporate law question.
[16] See e.g. Kenneth G. C. Reid, ‘Patrimony Not Equity: the trust in Scotland’ (2000) 8 European Review of Private Law 427, 430 et seq. describes the development of contextualizing the trust in Scotland.
[17] Cf. Konrad Zweigert and Hein Kötz, Introduction to Comparative Law (3rd edn, Clarendon Press 2011) 36 et seq.
[18] Franz Werro, ‘From Books to Life’ (2017) Quid? Fribourg Law Review 39; Werner Menski, ‘Plural Worlds of Law and the Search for Living Law’, in Werner Gephart (ed) Rechtsanalyse als Kulturforschung I (Klostermann 2014) 71, 79.
[19] Melissa Hardee, ‘Continuing Legal Education in the UK’ in Andreas Kellerhals, Michael Mayer and Janick Elsener (eds.) Continuing Legal Education – Ambition and Reality (EIZ Publishing 2023) 29.
[20] Federal Act on the Free Movement of Lawyers 2000, art. 7 para 1 lit. a.
[21] Lepaulle (n 9) 852.
