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Ralf Michaels - One of the best experts on this subject based on the ideXlab platform.
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Transnationalizing Comparative Law
2016Co-Authors: Ralf MichaelsAbstract:Comparative Law will not die in the 21st century, but nor can it remain unchanged. Comparative Law as we have it today still retains its roots in 1900: it is focused on states, on positive Law, and on a scientific approach. Comparative Law in the age of transnationalism will have to transnationalize: it must move beyond the state, it must move beyond positive Law, and it must endorse cultural approaches. We must retain our critique of legal nationalism, but we must add our critique of uncritical legal universalism.
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transnationalizing Comparative Law
2016Co-Authors: Ralf MichaelsAbstract:Some twenty years ago, one of the top Law schools in the United States decided to end all its courses in Comparative and foreign Law. This was done in the expectation that the then-fashionable end of history would also mean the end of diversity of legal systems and the global triumph of US Law. Students of the future would merely need to learn ‘Law’ (which meant US Law) and be able to practice anywhere in the world. Needless to say, the prediction turned out to be premature. The school is now, like every other US Law school, advertising its special competence in Comparative Law for its curriculum and for Lawyers today. We should remember that reports on the death of Comparative Law, as suggested by the editors of this journal, are always, to paraphrase Mark Twain, greatly exaggerated. 1 Comparative Law does not die so easily. Nor, however, does it remain unchanged. Rather, and unsurprisingly, Comparative Law is constantly evolving, in imperfect parallel with the development of Law, and society, at large. Lawrence Rosen once suggested “we may have to renounce Comparative Law as we have at times known it in order to save it.”2 But the truth is that Comparative Law will always exist whether we (who is that anyway?) renounce it or not. If Comparative Lawyers of old refuse to go along with changes, it merely means that others will do it for them—grandiose economist for whom Laws are mere data points for statistical analysis; ambitious young US scholars of constitutional Law with often scant exposure to foreign societies and modes of thought but a keen interest in promoting their causes; brilliant lovers of French poststructuralist thought and its propensity for theory and meta-theory without the need to engage with actual foreign Law. It is easy to ridicule these new developments from the standpoint of traditional Comparative Law. But what would be more helpful is to understand them as signs of
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Comparative Law by numbers legal origins thesis doing business reports and the silence of traditional Comparative Law
2009Co-Authors: Ralf MichaelsAbstract:The legal origins thesis—the thesis that legal origin impacts economic growth and the common Law is better for economic growth than the civil Law—has created hundreds of papers and citation numbers unheard of among Comparative Lawyers. The Doing Business reports—cross-country comparisons including rankings on the attractiveness of different legal systems for doing business—have the highest circulation numbers of all World Bank Publications; even critics admit that they have been successful at inciting legal reform in many countries in the world. Yet, traditional Comparative Lawyers have all but ignored these developments. This ignorance has at least three negative consequences. First, the economic debate will continue to ignore or misrepresent traditional Comparative Law knowledge if we do not bring our specific knowledge to the table. Second, Comparative Law as a discipline misses the opportunity to measure its own progress and shortcomings in view of a literature which, although on its face radically different, provides important challenges. This concerns especially the promises and shortcomings of interdisciplinarity. Third, and perhaps most importantly, our silence means that Comparative Law as a field remains (or increasingly becomes) irrelevant for political projects because its themes are discussed more and more by others. If we Comparative Lawyers want to retain (or regain) relevance, we need to bring our particular expertise to bear on projects as important as Law reform. The first purpose of this essay is to introduce the legal origins literature to traditional Comparative Law and to show important con-
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Comparative Law by numbers legal origins thesis doing business reports and the silence of traditional Comparative Law
2009Co-Authors: Ralf MichaelsAbstract:The legal origins thesis -- the thesis that legal origin impacts economic growth and the common Law is better for economic growth than the civil Law -- has created hundreds of papers and citation numbers unheard of among Comparative Lawyers. The Doing Business reports -- cross-country comparisons including rankings on the attractiveness of different legal systems for doing business -- have the highest circulation numbers of all World Bank Publications; even critics admit that they have been successful at inciting legal reform in many countries in the world. Yet, traditional Comparative Lawyers have all but ignored these developments. The first purpose of this essay is to introduce the legal origins literature to traditional Comparative Law and to show important connections to the traditional themes of our discipline. A second purpose is to examine both what particular critique of this literature emerges from the knowledge of traditional Comparative Law and where traditional Comparative Law itself can learn from this literature. A third purpose, finally, is to consider the continuing relevance of Comparative Law. Will it be replaced by economics and statistics? Or is there a value specific to Comparative Law that cannot be supplanted?
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the functional method of Comparative Law
2006Co-Authors: Ralf MichaelsAbstract:The functional method has become both the mantra and the bete noire of contemporary Comparative Law. The debate over the functional method is the focal point of almost all discussions about the field of Comparative Law as a whole, about centers and peripheries of scholarly projects and interests, about mainstream and avant-garde, about ethnocentrism and orientalism, about convergence and pluralism, about technocratic instrumentalism and cultural awareness, etc. Not surprisingly, this functional method is a chimera, both as theory and as practice of Comparative Law. In fact, "the functional method" is a trifold misnomer: There is not one ("the") functional method but many, not all methods so called are functional at all, and some projects claiming adherence to it do not even follow any recognizable method. This paper first places the functional method in a historical and interdisciplinary context, in order to see its connections with, and peculiarities opposed to, the debates about functionalism in other disciplines. Second, it tries to use the functionalist method on the method itself, in order to determine how functional it is. This makes it necessary to place functionalism within a larger framework - not within the development of Comparative Law, but instead within the rise and fall of functionalism in other disciplines, especially the social sciences. Thirdly, the comparison with functionalism in other disciplines enables us to see what is special about functionalism in Comparative Law, and why what would in other disciplines rightly be regarded as methodological shortcomings may in fact be fruitful for Comparative Law. This analysis leads to surprising results. Generally, one assumes that the strength of the functional method lies in its emphasis on similarities, its aspirations towards evaluation and unification of Law. Actually, the functional method emphasizes difference, it does not give us criteria for evaluation, and it provides powerful arguments against unification. Further, one generally assumes that the functional method does not account sufficiently for culture and is reductionist. However, the functional method not only requires us to look at culture, but also enables us, better than other methods, to formulate general Laws without having to abstract from the specificities. The problem is that the functional method, as generally described, combines a number of different concepts of function: an evolutionary concept, a structural concept, a concept focusing on equivalence. The relation between these different concepts within the method is unclear, its aspirations therefore unrealistic. If we reconstruct the method plainly on the basis of functional equivalence as the most robust of the three concepts of function and emphasize an interpretative as opposed to a scientific approach, we realize that the functional method can make fewer claims, but at the same time is less open to some of the critique voiced against it. In short, the functional method is strong as a tool for understanding, comparing, and critiquing different Laws, but a weak tool for evaluating and unifying Laws. It helps us in tolerating and critiqueing foreign Law, it helps us less in critiquing our own.
Armin Von Bogdandy - One of the best experts on this subject based on the ideXlab platform.
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european Law beyond ever closer union repositioning the concept its thrust and the ecj s Comparative methodology
2016Co-Authors: Armin Von BogdandyAbstract:The article investigates competing understandings of European Law. It supports, against the prevailing EU-centred understanding, an ecumenical concept that embraces EU Law, supplementing international instruments, the European Convention on Human Rights and, importantly, various domestic Laws enacting or responding to such transnational Law, as well as European Comparative Law. To keep the concept in sync with European politics, it posits a new idea that binds the parts together: to provide for a European legal space rather than further European integration (the ever closer union). This idea can also serve as European Law's functional equivalent to forming one legal order. European Law thus conceived grasps the puzzling complex of interdependent legal orders, sets a common frame for corresponding reconstructions (European composite constructions, legal pluralism, network theories, federalism or intergovernmentalism) and allows forces with diverging outlooks to meet in one legal field, on one more neutral disciplinary platform. Within this framework, European Comparative Law finds a new mission as well as a sound legal basis.
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the transformation of european Law the reformed concept and its quest for comparison
2016Co-Authors: Armin Von BogdandyAbstract:The article investigates competing understandings of European Law. It supports, against the prevailing EU-centered understanding, an ecumenical concept that embraces EU Law, supplementing international instruments, the European Convention on Human Rights, and, importantly, various domestic Laws enacting or responding to such transnational Law, as well as European Comparative Law. To keep the concept in sync with European politics, it posits a new idea that binds the parts together: to provide for a European legal space rather than further European integration (the ever closer union). This idea can also serve as European Law’s functional equivalent to forming one legal order. European Law thus conceived grasps the puzzling complex of interdependent legal orders, sets a common frame for corresponding reconstructions (European composite constructions, legal pluralism, network theories, federalism, or intergovernmentalism), and allows forces with diverging outlooks to meet in one legal field, on one more neutral disciplinary platform. Within this framework, European Comparative Law finds a new mission as well as a sound legal basis.
Katerina Linos - One of the best experts on this subject based on the ideXlab platform.
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how to select and develop international Law case studies lessons from Comparative Law and Comparative politics
2015Co-Authors: Katerina LinosAbstract:To develop international Law claims, it is often critical to study diverse states’ choices. For example, to assess whether a practice constitutes international custom, it is essential to understand whether the practice is widespread or rare. Similarly, to evaluate compliance with a treaty, it is helpful to know how different governments understand its key terms. Aware of the need for comparison, international courts, casebook and textbook authors and researchers often reference the practices of a number of different states. But these comparisons typically focus on a handful of countries that share strong linguistic, cultural, legal, socioeconomic, and political backgrounds, which is not always analytically ideal.Where should courts, casebook authors, and researchers start their comparisons? How can they know whether they are cherry-picking examples that favor their preferred conclusions? When is it best to develop examples from countries that are very different from one’s own, and when should one focus on similar ones? And which aspects of foreign systems are most relevant for particular inquiries? The fields of Comparative Law and Comparative politics have made tremendous progress on each of these questions. This essay synthesizes their key findings, and applies them to fundamental questions in international Law.
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how to select and develop international Law case studies lessons from Comparative Law and Comparative politics
2015Co-Authors: Katerina LinosAbstract:To develop international Law claims, it is often critical to compare different countries’ Laws. This essay explores how methods drawn from Comparative Law and Comparative politics research can help international Lawyers make Comparative inquiries more simply and straightforwardly. International Lawyers recognize three main sources of legal authority: treaties, custom, and general principles. Cross-national comparisons are deeply embedded in the very definitions of two of these three sources. To establish international custom, an international Lawyer must show that a broad range of states consistently engage in a certain practice out of a sense of legal obligation. To establish a general principle, an international Lawyer must show that it is “recognized by civilized nations”; in practice this requires that the principle be found in diverse legal families. Treaty interpretation does not necessitate cross-country comparison as a matter of definition: in theory, the text of the treaty itself could provide the requisite answers. However, in practice, international and domestic courts are typically faced with ambiguous treaty terms. To interpret them, they often turn to the jurisprudence of diverse states and to subsequent state practice, thus implicitly beginning a Comparative inquiry. in sum, Comparative international Law is useful for identifying and applying international Law, as this volume’s introduction explains.
Niels Petersen - One of the best experts on this subject based on the ideXlab platform.
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network analysis and legal scholarship
2017Co-Authors: Emanuel Vahid Towfigh, Niels PetersenAbstract:In their contribution to this issue Mattias Derlen and Johan Lindholm use social network analysis to show that the European Court of Justice is a precedent-driven constitutional court that is comparable to the US Supreme Court with regard to the citation of precedents. The article and its use of network analysis as a method provoked a lively debate on the editorial board of the German Law Journal about Comparative Law theory and methods generally and the place of empirical (including network) analyses in the Comparative Law discipline. For this reason, the editorial board commissioned this “special section” of contributions dedicated broadly to approaches to Comparative Law. In his essay in this section, for example, Jens Frankenreiter offers a detailed assessment of Derlen’s and Lindholm’s analysis. In this piece, we take a broader perspective and look at the utility and the limits of network analysis for legal scholarship generally.
Mathias M Siems - One of the best experts on this subject based on the ideXlab platform.
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traditional Comparative Law
2018Co-Authors: Mathias M SiemsAbstract:Comparative Law has a long history. Sometimes it is said to be as old as Law itself, but, in looking for a precise origin, views range, for instance, from Aristotle's comparison of constitutions in the third century BC, to comparisons between Roman, canonical and customary sources in the sixteenth century, to Montesquieu's comparison of political systems in the eighteenth century. More narrowly, the development of Comparative Law as an academic discipline is somehow clearer, with 1861, 1869 and 1900 offered as possible dates of birth. The background of this development was that the emergence of nation-states and the enactment of codes in nineteenth-century Europe led to the initial need for legislative Comparative Law and, subsequently, to the opportunity of comparisons between these new national Laws. Thus, what is often called ‘traditional Comparative Law’ started at the beginning of the twentieth century and has continued to be influential until now, as distinguished from postmodern and critical approaches. Using such a category does not mean that there are no differences within the group of traditional Comparative Lawyers. Every Comparative Lawyer is shaped by her background: by, for example, the legal systems she is trained in, or the domestic Law of her main field of expertise. Still, there are a number of core themes that are typically seen as belonging to the main substance of traditional Comparative Law. For example, Ralf Michaels speaks about a focus on positive state Law and a ‘legal scientific approach to Comparative Law’; Reza Banakar sees as its central ideas the concept of legal families, harmonisation of Laws, and the relationship between Law and the state; and Pierre Legrand identifies its ‘doxa’ with the functional approach by Zweigert and Kotz. This part critically discusses the main elements of traditional Comparative Law. It starts with Chapter 2 on the established method of Comparative Law. Chapter 3 deals with the distinction between civil and common Law countries, and Chapter 4 turns to the division of the world into legal families more generally. This structure follows a reasoning from ‘micro-’, to ‘meso-’, to ‘macro-comparison’. Research using the established method of Comparative Law is typically a ‘micro-comparison’ as it focuses on specific legal topics (e.g. strict liability in English and German tort Law).
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Comparative Law and finance past present and future research
2010Co-Authors: Mathias M Siems, Simon DeakinAbstract:Comparative Law and finance quantifies differences in the Laws governing the business enterprise in various countries. The resulting data can be used to test which legal institutions (if any) matter for financial development. Until recently only cross-sectional data were available. We report the results of a new approach to coding which has produced longitudinal data sets on shareholder, creditor, and worker protection.
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numerical Comparative Law do we need statistical evidence in Law in order to reduce complexity
2004Co-Authors: Mathias M SiemsAbstract:In recent times Comparative Law has been increasingly pursued in a numerical way (e.g., La Porta et al., 106 J. Polit. Economy 1113 (1998); West, 149 U. Pa. L. Rev. 528 (2001); Berkowitz et al., 51 Am. J. Comp. L. 163 (2003); Djankov et al., 118 Quart. J. Econ. 453 (2003)). Although attributing and comparing legal differences by numbers is contrary to the traditional way of doing Comparative Law, there is almost no general methodological discussion about the advantages and disadvantages of numerical Comparative Law. Thus, it is a topic in which new and interesting considerations can be raised. After the introduction (Part I.), I will, first, look at some examples that use a numerical method in Comparative company/corporate Law (Part II.). Following this, I will deal with three arguments both against and in favour of numerical Comparative Law (Parts III. and IV.). Finally, I will suggest that in using numerical Comparative Law, the guidelines of necessity, methodical awareness, transparency, comparability, functional equivalents, and reflections, have to be considered (Part V.).
