The Same Only Different: Reflections on Robert Kagan’s Adversarial Legalism

Abstract

Robert A. Kagan’s influential book, first published at the beginning of the twenty-first century, is now brought up to date with a second edition. “Adversarial legalism,” in Kagan’s view, distinguishes law in the United States from the law of other developed countries in many ways, for example, heavy use of policymaking through litigation and punitive regulation, as opposed to bureaucratic and conciliatory techniques. He suggests that this situation is likely to continue. This essay, however, looks at the same phenomena from the standpoint of similarities rather than differences. It suggests that powerful economic and cultural forces, common to the modern world of developed countries, tend to push the legal systems of these countries in parallel directions. Convergence, rather than divergence, is therefore the trend in the legal systems of the Western world; and this trend is likely to continue in the future.