Tourkochoriti on Comparative Law and Philosophy of History: The Case of Free Speech in American and French Legal Thought @IoannaTourkocho @UniofGalwayLaw @CambridgeUP

Ioanna Tourkochoriti, Harvard Law School; National University of Ireland, Galway (NUIG) - School of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law, is publishing Comparative Law and Philosophy of History: The Case of Free Speech in American and French Legal Thought in Comparative legal history, the Values, Purposes and Methods of Historical Comparison (Cambridge University Press, forthcoming 2023). Here is the abstract.

This chapter proposes to approach comparative rights jurisprudence from the perspective of philosophy of history. Focusing on the difference in the protection of speech in France and the US, it suggests that comparative history helps make sense of the formation of philosophical conceptions on the appropriate limits to free speech. Some philosophical ideas formed in response to historical facts led to the emergence of legal traditions. These traditions can help us understand the divergence in the protection of freedom of speech between France and the US. The central argument is that the balancing of freedom of speech and other values in France and the United States can be understood by reference to the role of the government and the understanding of liberty. The chapter aims to approach critically two different conceptions of republicanism and their significance for rights. The methodology that it follows is Gadamer’s hermeneutics. Gadamer describes human understanding as formed on the basis of prejudices. By that the means preliminary judgments. The chapter identifies some ideas which form the ex ante understanding of the jurists in a legal system concerning the necessity to protect one liberty over another. The difference in approach between France and the US indicates a profound difference which concerns the “imaginary institution” of society and the state on the two sides of the Atlantic.

Download the essay from SSRN at the link.