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.

Dedek on The Tradition of Comparative Law: Comparison and its Colonial Legacies @CambridgeUP @LawMcGill

Helge Dedek, McGill University Faculty of Law, is publishing The Tradition of Comparative Law: Comparison and its Colonial Legacies in The Cambridge Handbook of Comparative Law (Mathias Siems and Po Jen Yap, eds., Cambridge University Press, 2023). Here is the abstract.

Disciplines traditionally designated as ‘comparative’ – Comparative Literature, History, etc – have radically called into question comparison as their apparent methodological foundation, even postulating its ‘obsolescence’. Such tendencies have also been informed and driven by the insight that the label ‘comparative’ is a legacy of the nineteenth century, when the ‘comparative method’ spread from biology and philology to other developing academic disciplines. This awareness of its roots in the peak period of colonialism and imperialism has opened ‘comparison’ itself to postcolonial critiques in these disciplines. ‘Comparison’ is no longer necessarily accepted as a timeless and ‘neutral’ methodological constant, but rather viewed as a contextual historical phenomenon. By contrast, ‘Comparative Law’ scholars have been more hesitant to challenge the role of comparison and the ‘innocence of method’ (Günter Frankenberg) so fundamentally. This chapter explores the role that a lack of disciplinary historical self-awareness plays in this hesitation. It interrogates, in particular, the traditional self-portrayal of Comparative Law as a ‘young’ discipline and the narrative of the famous 1900 Paris Congress as a mythical point of origin. The trope of such a ‘new beginning’ in or around 1900 insinuates a critical caesura that eclipses Comparative Law’s intellectual roots in the canon of nineteenth century comparative disciplines; and that absolves it from reflection on how these disciplines related to a colonial/imperialistic historical context. The chapter seeks to establish that the entanglement of our disciplinary history with that of the ‘comparative method’, that the coloniality of comparison itself is indeed an important subject in its own right. It suggests a context-sensitive recovery of the discipline’s institutional and discursive history, theoretically informed by scholarship specifically aimed at resisting ‘the mystifying amnesia of the colonial aftermath’ (Leela Gandhi).

Download the essay from SSRN at the link.

Dedek on The Tradition of Comparative Law: Comparison and Its Colonial Legacies @LawMcGill @CambridgeUP

Helge Dedek, McGill University Faculty of Law, is publishing The Tradition of Comparative Law: Comparison and its Colonial Legacies in The Cambridge Handbook of Comparative Law (Mathias Siems and Po Jen Yap, eds., (Cambridge University Press, 2023). Here is the abstract.

Disciplines traditionally designated as ‘comparative’ – Comparative Literature, History, etc – have radically called into question comparison as their apparent methodological foundation, even postulating its ‘obsolescence’. Such tendencies have also been informed and driven by the insight that the label ‘comparative’ is a legacy of the nineteenth century, when the ‘comparative method’ spread from biology and philology to other developing academic disciplines. This awareness of its roots in the peak period of colonialism and imperialism has opened ‘comparison’ itself to postcolonial critiques in these disciplines. ‘Comparison’ is no longer necessarily accepted as a timeless and ‘neutral’ methodological constant, but rather viewed as a contextual historical phenomenon. By contrast, ‘Comparative Law’ scholars have been more hesitant to challenge the role of comparison and the ‘innocence of method’ (Günter Frankenberg) so fundamentally. This chapter explores the role that a lack of disciplinary historical self-awareness plays in this hesitation. It interrogates, in particular, the traditional self-portrayal of Comparative Law as a ‘young’ discipline and the narrative of the famous 1900 Paris Congress as a mythical point of origin. The trope of such a ‘new beginning’ in or around 1900 insinuates a critical caesura that eclipses Comparative Law’s intellectual roots in the canon of nineteenth century comparative disciplines; and that absolves it from reflection on how these disciplines related to a colonial/imperialistic historical context. The chapter seeks to establish that the entanglement of our disciplinary history with that of the ‘comparative method’, that the coloniality of comparison itself is indeed an important subject in its own right. It suggests a context-sensitive recovery of the discipline’s institutional and discursive history, theoretically informed by scholarship specifically aimed at resisting ‘the mystifying amnesia of the colonial aftermath’ (Leela Gandhi).

Download the essay from SSRN at the link.

Poldnikov on Two Divergent Approaches to Comparative Legal Studies in Europe and Their Implications for Legal History dmitry

Dmitry Polknikov, National Research University Higher School of Economics, has published Two Divergent Approaches to Comparative Legal Studies in Europe and Their Implications for Legal History as Higher School of Economics Research Paper No. WP BRP 88/LAW/2019. Here is the abstract.

Comparative legal studies have established themselves as the reaction of legal scholarship towards the legal diversity of our shrinking world today and in the past. Despite their potential, such studies occupy a marginal place in legal curricula and practice across Europe. This unhappy situation has brought about debates within the community of comparatists about possible causes and eventual remedies. In this paper, I look at this debate as the incarnation of the century-long confrontation among 'erudite' and 'pragmatic' legal scholars; the former group identify with the agenda of Rodolfo Sacco and the latter are led by Basil Markesinis. My aim is to draw implications from this debate for comparative legal history. In order to do so, I begin by introducing the main tenants of the two 'schools'. Secondly, I investigate the main stumbling blocks of the debate between them: Eurocentrism, the selective scope of research, interdisciplinary and cultural studies. Thirdly, I contemplate the implications of the debate for legal history and a possible synthesis of the two approaches suggested by Uwe Kischel. My main point here is to encourage legal historians in two respects: (1) to engage in cooperation with comparatists in order to enhance our understanding of the context(s) and the paradigm(s) of European legal culture in the face of the ongoing internationalisation of law and legal studies and, (2) to pursue the task of revealing the hidden factors that slow down the transformation of positive law when the changing world calls for it, as is the case with acknowledging new kinds of legal subjects.

The full text is not available from SSRN.

Moustaira on Who Needs Comparative Law @emoustai

Elina Moustaira, National and Kapodistrian University of Athens, School of Law, is publishing Who Needs Comparative Law?! What a Question! in Comparazione e Diritto Civile (2017). Here is the abstract.

It is argued that in a world of steadily increasing contacts and mutual influences, we need to understand the other people, the other laws. It does not suffice to cite descriptions of law’s function or of various states’ attitudes towards the law. Thus, the comparative perspective is used in order to approach and comprehend a legal culture.

Download the article from SSRN at the link.

Annual Comparative Law Works-in-Progress Workshop, 23-24 February 2018, Princeton University: Extended Deadline: Announcement and CFP

From the mailbox:

Annual Comparative Law Work-in-Progress Workshop

23-24 February 2018

Princeton University

EXTENDED DEADLINE: Announcement and Call for Papers

Co-Organized and Co-Hosted by Kim Lane Scheppele (Princeton University), Jacqueline Ross (University of Illinois College of Law), and Jacques DeLisle (University of Pennsylvania Law School)

Co-sponsored by Princeton University, the University of Illinois College of Law, the University of Pennsylvania Law School, and the American Society of Comparative Law

We invite all interested comparative law scholars to consider submitting a paper to the next annual Comparative Law Work-in-Progress Workshop, which will be held February 23-24, 2018 at Princeton University. 

            Interested authors should submit papers to Kim Lane Scheppele at kimlane@princeton.edu.  We have extended the deadline and ask for papers to submitted by January 8, 2018.  We will inform authors of our decision by January 20.   Participants whose papers have been accepted should plan to arrive in Princeton by Thursday night on February 22 and to leave on Saturday afternoon or Sunday morning.   

The annual workshop continues to be an important forum in which comparative law work in progress can be explored among colleagues in a serious and thorough manner that will be truly helpful to the respective authors.   "Work in progress" means scholarship that has reached a stage at which it is substantial enough to merit serious discussion and critique but that has not yet appeared in print (and can still be revised after the workshop, if it has already been accepted for publication.)   It includes law review articles, book chapters or outlines, substantial book reviews, and other appropriate genres.

We ask for only one contribution per author and also ask authors to limit their papers to 50 pages in length, or, if the paper (or book chapter) is longer, to indicate which 50 pages they would like to have read and discussed. 

            Our objective is not only to provide an opportunity for the discussion of scholarly work but also to create the opportunity for comparative lawyers to get together for two days devoted to nothing but talking shop, both in the sessions and outside. We hope that this will create synergy that fosters more dialogue, cooperation, and an increased sense of coherence for the discipline.

The participants in the workshop will consist of the respective authors, commentators, and faculty members of the host institutions.  The overall group will be kept small enough to sit around a large table and to allow serious discussion.  The papers will not be presented at the workshop. They will be distributed well in advance and every participant must have read them before attending the meeting.  Each paper will be introduced and discussed first by two commentators before opening the discussion to the other workshop participants.  Each of the authors selected for the workshop is expected to have read and to be prepared to discuss each of the papers selected.  The author of each paper will be given an opportunity to respond and ask questions of his or her own.  There are no plans to publish the papers. Instead, it is up to the authors to seek publication if, and wherever, they wish.  The goal of the workshop is to improve the work before publication. 

            The Workshop will be funded by the host school and by the American Society of Comparative Law. Authors of papers and commentators will be reimbursed for their travel expenses and accommodation up to $600, by either by the American Society of Comparative Law or Princeton University, in accordance with the ASCL reimbursement policy (as posted on its webpage.)  We ask that authors inquire into funding opportunities at their home institutions before applying for reimbursement by the ASCL or by the Princeton University.

In this cycle of our annual workshop, we are excited to welcome our newest co-organizer, Professor Jacques DeLisle, Stephen A. Cozen Professor of Law and Professor of Political Science and Director of the Center for East Asian Studies at the University of Pennsylvania Law School and we bid a fond farewell to Professor Maximo Langer of the UCLA School of Law, with whom we have greatly enjoyed co-hosting many meetings of this annual workshop series.   

Tourkochoriti on Comparative Rights Jurisprudence: A Essay on Methodologies @IoannaTourkocho @HarvardLaw

Ioanna Tourkochoriti, Harvard Law School; National University of Ireland, Galway, School of Law, is publishing Comparative Rights Jurisprudence: An Essay on Methodologies in Law and Method. Here is the abstract.

This paper discusses three approaches that can be helpful in the area of comparative rights jurisprudence, oriented in reference to three different kinds of studies that are possible in that area. To a large extent the methods for a comparative legal research depend on the research question and the goal of the researcher. First, a comparative law study may focus on the sociocultural context that led to the elaboration of differences or similarities in the protection of rights. In this respect a study of comparative law is by definition an interdisciplinary study. Second, a comparative law approach can be a normative enterprise. It can focus on engaging in a philosophical analysis enlightened by the differences or similarities in the regulation of rights, in order to propose concrete solutions for the regulation of a right. Third, a comparative law approach can combine both elements of the two previously mentioned approaches. It can aim at studying the sociopolitical frame that led to the emergence of legal rules and challenge them in the cases where it seems that there is some flagrant injustice in the application of rules upon concrete cases of human rights. It may aim to reach a "reflective equilibrium" between and the is and the ought. This means that it can engage in a study that can be articulated as a back and forth movement from the differences in the operation of legal rules to how they should be operating. The paper discusses further the challenges that the researcher faces in her attempt to use these methodologies and how these challenges can be overcome. These challenges arise in the selection of cases that are appropriate for comparison, in assuring comparability. What is at stake is the question of commensurability. If what motivates a comparative law study is the search for principles of justice the researcher needs to persuade that her methodological approach serves her aim. Second, challenges emerge for the comparatist concerning the research question that she uses, her theoretical framework and her criteria of evaluation. Furthermore, these challenges concern the validity of the interpretative schemata that she refers to or that she creates in order to interpret the legal phenomena she is studying. These interpretative schemata may be defined by conscious and unconscious bias. To some extent it is impossible to the researcher to transcend the subjectivity of her perspective. Nevertheless, there is a moral obligation for the researcher to make an effort to transcend this bias. Interdisciplinary collaboration as well as collaboration with scholars whose background was formed in the foreign legal system under study can help transcend these challenges. Another concern for the comparativist is the danger of being trapped in the relativity of her background which would prevent her from thinking critically on the object of her study. The solution to the problem comes from the reflection on the just character of the rules that is implicit in any attempt to compare legal rules. The inherent normative dimension of the law can help transcend the circumstances that define the subjectivity of the researcher. The law as a normative discipline has its own constraints of justifiability. The researcher is led to transcend her conditioning in a context that provides to her a frame of evaluation and to think in abstracto about principles of justice that can be accepted intersubjectively. The comparatist who studies legal rules inevitably transcends her horizon and is led to think about the justness of the legal rules she is studying.

Download the essay from SSRN at the link. 

Curran on Comparative Law and Language Revisited @PittLaw @pittlawfaculty @OxUniPress

Vivian Grosswald Curran, University of Pittsburgh School of Law, is publishing Comparative Law and Language Revisited in the Oxford Handbook of Comparative Law, (Mathias Reimann & Reinhard Zimmermann, eds., forthcoming). Here is the abstract.

Comparative law shares with language the pitfalls of miscommunication and misunderstanding, as well as the potentials of learning to see, to communicate and to shed light in that elusive, inevitable, shifting and ever-reconfiguring space that, like language, it occupies between the same and the other. Today, the role of comparative law as translator for the international, the cross-border, the transnational, has emerged as so crucial so often and in so many places that one may say what comparative law has become today has changed as domestic courts’ confrontations with foreign law has made the need for comparative law understanding vital, if not dire.

Download the essay from SSRN at the link.

A New Book From Hart Publishing: Nahel Asfour: Wrongful Enrichment: A Study in Comparative Law and Culture @hartpublishing @nn_asfour

New from Hart Publishing:

Nahel Asfour, Wrongful Enrichment: A Study in Comparative Law and Culture (2017)(International Studies in the Theory of Private Law).  Here is a description of the book's contents.

This book analyses enrichment law and its development and underpinning in social culture within three geographical regions: the United States, western members of the European Union and the late Ottoman Empire. These regions correspond, though imperfectly, with three different legal traditions: the American, continental and Islamic traditions. 

The book argues that we should understand law as a mimetic artefact. In so doing, it explains how typical patterns and exemplary articulations of wrongful enrichment law capture and reiterate vocal cultural themes found in the respective regions. The book identifies remarkable affinities between poetic tendencies, structures and default dispositions of wrongful enrichment law and cultural world views. It offers bold accounts of each region's law and culture providing fertile grounds for external and comparative elucidations of the legal doctrine.

Tugendhat on Slavery and Comparative Law in Eighteenth Century England @LawLeicester

Michael Tugendhat, Leicester Law School, has published Slavery and Comparative Law in Eighteenth Century England as University of Leicester School of Law Research Paper No. 17-08. Here is the abstract.

This paper addresses the contemporary criticism to the European Court of Human Rights in the UK by underscoring how the English law on human rights has been positively influenced by the laws of other European countries, in the same fashion as English law has traditionally influenced such foreign laws. The means for this analysis is a case-study on the introduction of the French law on slavery and the subsequent implementation of such principles in England. Slavery had been abolished in France since the early 1300s. Moorish slaves brought to France were being freed from at least 1571, as was recorded by Jean Bodin in 1576. In England, slavery had practically disappeared at the sunset of the Middle Ages. It resurfaced in the French and American colonies in the New World in the 1600s. In the period 1730-1790 French courts, citing Bodin, freed over 200 slaves brought to France from the colonies. In Somerset v Stewart, 1772, English courts finally held that slavery was not recognised by English law, which led to the termination of slavery in England once and for all; and it was the influence of French courts’ decisions on the bestowal of freedom to foreign slaves that led to the reasoning of the English Court.

Download the article from SSRN at the link.

Some Films For the Comparative Law Folks @maksdelmar @KentLawSchool @BritAssCompLaw

Geoffrey Samuel, Professor of Law, Kent Law School, has posted ten choices for films "for the comparatist," here at BACL (British Association of Comparative Law). Among his selections: The Bitter Tea of General Yen, and The Warlord.  More here. 

Via @maksdelmar.

Roznai on Entrenching Secularism in Consitutions

Yaniv Roznai, Interdisciplinary Center (IDC) Herzliya, Radzyner School of Law; New York University, The Hauser Global Law School; University of Haifa, The Minerva Center for the Rule of Law under Extreme Conditions, has published Negotiating the Eternal: The Paradox of Entrenching Secularism in Constitutions at 2017 Mich. St. L. Rev. 253. Here is the abstract.

This article seeks to study the eternal protection of the principle of secularism in national constitutions. It examines actual existing constitutional arrangement which prima facie provide secularism an absolute protection from change in the constitution, in an attempt to identify and explain the character of these existing constitutional arrangements. Part I of this Article discusses Secularism as an Eternal Constitutional Principle. It reviews various constitutions which entrench secularism as an implicit or explicit principle. Part II explains why constitutional eternity should not be regarded as if the protected constitutional principles are non-negotiable. This is demonstrated through three case studies which focus on Turkey, Tajikistan, Mali. Against the backdrop of these case studies, I argue that eternal principles should be regarded as negotiable on three main grounds. First, as long as eternity clauses are not self-entrenched, they can be formal amended. Second, what is protected by the eternity clauses is a constitutional principle – secularism rather than a rule. In light of it elastic meaning, the principle of secularism can therefore be reshaped and reinterpreted with time. Third, when the values protected by constitutional unamendability conflict with the community spirit or the Volksgeist, even the mechanism of constitutional eternity would not be able to hinder the true forces in society which demand change. Part III addresses what I term “the Circle of Eternity”. It demonstrates the central place of eternity in religious laws and natural law, an element which distinguishes them from secular law. It then describes the secular developments in the age of rationalization, in order to finally reveal the paradox of modern constitutional eternity; on the one hand, the basic fundamentals of modern constitutionalism are secular, from the standing point of popular sovereignty and people’s rational ability to decide their faith, destiny and consequently, to design their constitutional order. Yet, at the same time, this very presupposition rests as an unalterable pillar – an absolute truth which the constitutional eternity.

Download the article from SSRN at the link.

Cooper on Culpability for Curses in Jewish Law and Mystical Lore

Levi Cooper, Ben Gurion University of the Negev, has published Culpability for Curses in Jewish Law and Mystical Lore, in Wizards vs. Muggles: Essays on Identity and the Harry Potter Universe 168(Christopher E. Bell, ed., Jefferson, NC: McFarland, 2016).

Would a court judging according to Jewish Law find Voldemort guilty for the murders of James and Lily Potter? Voldemort had the intention to kill, yet the legal question is: Would Jewish Law consider the Killing Curse to be an act of murder? This study explores legal aspects of three magical phenomena – incantations that kill, automatic writing like Tom Riddle’s Diary, and food with different possible tastes like Bertie Bott’s Every Flavor Beans – as they are discussed in Jewish Law. In Jewish esoteric lore, magical phenomena have conventionally been the province of the mystically adept. Though laypeople may not have been proficient in magic, the mystical tradition dictated conduct. A by-product of this situation was that jurists considered legal implications of magic. Legal opinions on magical phenomena can therefore be found in Jewish legal literature, making this corpus fertile ground for analysis. Drawing on the fields of Comparative Law, Law and Literature, and Legal History, this article analyzes three phenomena and concludes with four contentions: First, the analysis speaks to the possibility of cross-fertilization in Comparative Law. Second, the study provides a unique window into the world of Jewish Law jurists, and thus is of interest to legal historians and judicial biographers. Third, the material presented here contributes to our understanding of the reaches of the Jewish legal system. Fourth, the present discussion may be significant for the contemporary challenge of charting a course in legal education.

Download the essay from SSRN at the link.

Hesselink on Private Law and the European Constitutionalization of Values

Martijn W. Hesselink, University of Amsterdam, Centre for the Study of European Contract Law (CSECL), has published Private Law and the European Constitutionalisation of Values as Amsterdam Law School Research Paper No. 2016-26 and Centre for the Study of European Contract Law Working Paper Series No,. 2016-07. Here is the abstract.

According to the CFREU, the EU is founded on the general values such as values of human dignity, freedom, equality and solidarity. In addition, the TEU refers to a more political set of foundational values, ie respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. These references could be understood as purely ornamental, or as irrelevant in any case for private law. Indeed, it is true that the Court of Justice so far has never made any references to these values in private law cases. Still, the Court already has shown boldness before in the context of the interpretation and review of secondary EU law in private law cases, when it discovered general principles of EU law and general principles of civil law. Therefore, it should not be excluded that the Court may be tempted one day to follow the example of the German constitutional court that famously understands its national constitution as expressing an objective system of constitutional values. This paper explores what such an understanding of private law as an instrument for furthering common European values would entail and examines whether such an ethical reading of European private law would be desirable. It argues that the promotion by the EU of a set of official values through its laws is not compatible we the respect we owe each other in a society characterised by reasonable pluralism. In addition, it points to further difficulties, both of a moral and a practical nature, of the idea of advancing ethical values through private law. It concludes that although it is very well thinkable that the values to which the TEU and the Charter refer will one day be interpreted as an objective value system with (indirect) horizontal effects, the Court of Justice nevertheless should refrain from going down that road.

Download the article from SSRN at the link.

Zimmermann on the Comparative Law of Successions and Cultural Differences

Reinhard Zimmermann, Max Planck Institute for Comparative and International Private Law, has published Kulturelle Prägung des Erbrechts? (Does the Law of Succession Reflect Cultural Differences?) at 71 JuristenZeitung (JZ) 321 (April 2016). Here is the abstract.

Deutsche Zusammenfassung: Nach weit verbreiteter Auffassung ist das Erbrecht eine in besonderem Maße kulturell verwurzelte Materie. Damit verbunden ist die Einschätzung, dass dem Erbrecht eine „Tendenz zur Bewahrung“ eigentümlich sei, und dass kritisch wertende Rechtsvergleichung oder gar Rechtsvereinheitlichung kaum Erfolg versprechen. Der vorliegende Beitrag stellt diese Ansichten infrage. Aufgezeigt werden unter anderem rechtsordnungsübergreifende Konstanten und Entwicklungstendenzen, Möglichkeiten kritischer Reflexion und historische Beispiele von Rechtsrezeption, Rechtsvereinheitlichung und Rechtsänderung. Inhaltlich befasst sich der Beitrag nur mit zwei, allerdings zentralen Problemkomplexen: Testamentsformen und gesetzliche Erbfolgeordnung. English Abstract: It is widely thought that the law of succession reflects deeply-rooted cultural differences. Related to this is the idea that the law of succession is a subject marked by resistance to change; and also the perception that critical comparative studies or attempts at legal unification are unpromising endeavours. The present essay challenges these views. It points out transsystematic reference points and trends of legal development, possibilities for critical reflection, historical examples of legal transplants, legal unification, and legal change, as well as other phenomena which are incompatible with the prevailing view. All examples are taken from only two, though central, fields: testamentary formalities and the rules on intestate succession. Note: This article is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, Mohr Siebeck. All full-text JuristenZeitung articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet. Downloadable document is in German.

Download the article from SSRN at the link.

Basedow on One Hundred Years of Comparative Law/Hundert Jahre Rechtsvergleichung

Juergen Basedow, Max Planck Institute for Comparative and International Private Law, is publishing Hundert Jahre Rechtsvergleichung – Von wissenschaftlicher Erkenntnisquelle zur obligatorischen Methode der Rechtsanwendung – (One Hundred Years of Comparative Law – From a Scholarly Source of Knowledge to an Obligatory Method in the Application of Law) in volume 71 of JuristenZeitung (JZ) (2016). Here is the abstract.

Deutsche Zusammenfassung: Als das römische Recht vor einem Jahrhundert in die Rechtsgeschichte relegiert wurde, wuchs in der Wissenschaft in ganz Europa das Bedürfnis für einen neuen Referenzrahmen; ihn versprach man sich vom Vergleich der nationalen Rechte. Im Hintergrund stand hier zunächst das wissenschaftliche Bedürfnis nach der Ausdehnung des geistigen Horizonts und der Erweiterung des Reservoirs an praktischen Lösungen. Doch lässt sich eine allmähliche Transformation der Rechtsvergleichung in eine obligatorische Rechtsanwendungsmethode beobachten. Der Aufsatz zeichnet diese Entwicklung für das allgemeine Völkerrecht, die Menschenrechte, die Konventionen des Einheitsrechts, verschiedene Aspekte des Europarechts und das Internationale Privatrecht nach.

English Abstract: As Roman law was relegated to the field of legal history a century ago, academia across Europe detected a growing need for a new frame of reference; the comparative analysis of national laws was seen as being capable of filling this void. Initially, the development was driven by the need to expand intellectual horizons and to deepen the reservoir of practical solutions. But one could observe comparative analysis gradually transforming into an obligatory method in the application and interpretation of law. The present article traces this development in respect of general public international law, human rights law, and uniform law conventions as well as for various aspects of European law and private international law. Note: This pre-print is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, Mohr Siebeck. All full-text JuristenZeitung articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet. Downloadable document is in German.

Download the article from SSRN at the link.

Hallevy on Criminalization of Oppresion Against Women in the Name of Culture

Gabriel Hallevy, Ono Academic College, Faculty of Law, has published Culture Offenses Instead of Cultural Defense – Criminalization of Oppression Against Women in the Name of Culture. Here is the abstract.

About five thousand women are murdered by their families each year in the name of family honor. These crimes are committed in both advanced western countries and countries of origin. Honor killings are not the only offenses committed against women in the name of culture. When the perpetrators are charged in court, they frequently claim the “ignorance of law” defense, since they have been behaving that way for generations, and why would the legal situation be different in their new homeland. In most cases, this claim is rejected, but it is used to mitigate punishments down to ridiculous sentences. Most western countries share this problem. This chapter argues that the mistake of law defense is irrelevant in relation to culture-based crimes against women.

Download the article from SSRN at the link.

Discussing Culture and Comparative Law

Xiangyang Qian, University of Edinburgh, has published Understanding Culture for Comparative Law. Here is the abstract.

Misunderstandings of the concept of culture are responsible for many difficulties in comparative law. A general talk of a culture can only be distorting or empty, any meaningful talk must be based on specific elements of the culture. Cultural elements are different in their relevance to the problem of life and law, and the enquires into cultural influences upon law must therefore be based upon the relevancy of a particular element to a particular law. The insider’s view as the appropriate way to understand a culture is a fallacy; the outsider’s view is the only way possible to understand a culture. It is another common wrong to take culture as purely subjective construction, the objectivity of cultural elements is essential for the proper understanding of a culture and the methodological improvement of comparative law.

Download the article from SSRN at the link.

Re-Interpreting Blackstone

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, is publishing Adelaide's Blackstone in the Adelaide Law Review. Here is the abstract.

This essay is an extended commentary on the recently-published (2014) essay collection entitled Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts, edited by Wilfrid Prest. The collection is an important element in an ongoing multi-year project of engagement with Blackstone based at the University of Adelaide. It has staked out an ambitious interpretive terrain. In matters of interpretation, essayists move beyond legal analysis and legal history to literary criticism and art history. In assessing the Commentaries’ dissemination and impact, they pursue Blackstone beyond the usual concentration on the British Atlantic world into new, less familiar climes – the French Atlantic (Louisiana and Quebec) and Australasia. In charting the Commentaries’ influence, finally, they move beyond the history of common law adjudication to the distinctly contemporary subject of American constitutional originalism and its genealogy. The essay finds that *Re-Interpreting Blackstone’s Commentaries* is both enjoyable and instructive. Given the challenge of circumstance – an exceptionally familiar work written by a ‘conventionally dull’ man – this is no small achievement. The essay concludes with commentary on the place of Blackstone in the history of Australian settler-colonialism, with particular reference to the leading "native title" (indigenous land rights) cases of the past half century. It reflects on the place of history in native title litigation, and also on the meaning of resort to Blackstone by indigenous activists and their allies.

Download the essay from SSRN at the link.

Comparing Chinese and Western Approaches To Valuing Love and Law

Xiangyang Qian, University of Edinburgh, has published Love Beyond Law: A Chinese/Western Contrast on Law and Emotion. Here is the abstract.

It has been a tradition in China to value emotion over law until today as shown by a recent case in 2014. Such an attitude makes a sharp contrast to the Western one in terms of the law/emotion relation. The differences are rooted in the understanding of the fundamental concepts of reason, emotion and law. China holds a concept of intuitive reason, concrete and broad concept of emotion, and positive and narrow concept of law while the West has the rational reason, analytic and narrow concept of emotion, and abstract and broad concept of law. The Western conceptualization seems to prevail over the Chinese one, epistemolgocially and technically.

Download the article from SSRN at the link.