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The Boundaries of Comparative Law

Published online by Cambridge University Press:  15 February 2017

Mark Tushnet
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Abstract

Boundaries: between public and private law – Political dimensions of private and public law – Boundaries between domestic law and transnational and international law – Boundaries between law and other disciplines, including economics, comparative politics, normative political theory, and hermeneutic disciplines – National styles of comparative law scholarship – Analytic and pragmatic traditions in comparative law scholarship

Type
Articles
Information
European Constitutional Law Review , Volume 13 , Issue 1 , March 2017 , pp. 13 - 22
Copyright
© 2017 The Authors 

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References

1 I take the metaphor of ‘boundaries’ from one of the themes of the conference at which a version of this essay was the keynote address, but I do not mean to suggest that the metaphor in itself has conceptual importance.

2 I also note with some embarrassment that I have much less facility in languages other than English than do most scholars in comparative law.

3 It seems to me that the field of comparative constitutional law mostly avoided that controversy, in part because that discussion began and ended during a period when the field of comparative constitutional law was largely fallow. I discuss below other reasons for the absence of a discussion of ‘families’ in comparative constitutional law.

4 I think it would be inconsistent with the spirit of this essay to provide detailed supporting citations, or even exemplary ones, for many of my generalisations. I hope that the statements will evoke in readers recollection of scholarship that conforms to the generalisation even when they see the statements as overgeneralisations.

5 Combined with the interest in defending the comparative enterprise, these pressures may have provided some support for the effort to identify legal ‘families.’

6 See, e.g., Hill, C. and King, C., ‘How Do German Contracts Do As Much With Fewer Words?’, 79 Chicago-Kent Law Review (2004) p. 889 Google Scholar.

7 In the U.S. scholarly tradition, an influential early article is Bachrach, P. and Baratz, M.S., ‘Two Faces of Power’, 56 American Political Science Review (1962) p. 947 CrossRefGoogle Scholar.

8 Perhaps the most interesting questions in connection with the constitutional bloc revolve around the domestic legal effect on domestic law of decisions by non-domestic bodies charged with interpreting the international agreements in the bloc.

9 My favourite example is the Hague Convention on the Civil Aspects of International Child Abduction, because it deals with family law, regarded in the United States as the quintessentially local legal field.

10 As with much of Kennedy’s work, this has circulated widely in various versions. One published version is Kennedy, D., ‘Three Globalizations of Law and Legal Thought: 1850–2000’, in D.M. Trubek and A. Santos (eds.), The New Law and Economic Development (Cambridge University Press 2006) p. 19 CrossRefGoogle Scholar.

11 This quotation and the next come from Kennedy, supra n. 10, p. 21, which is a table summarising the three globalisations.

12 Of course economic analysts can be inspired by the specifics of markets in some times and places to identify general characteristics that they can then build into their models, but that is different from saying that the economics of ‘French markets in the seventeenth century’ were intrinsically different from the economics of contemporary markets. Rather, the seventeenth-century markets had different generic characteristics from those of contemporary markets, and were those generic characteristics to be reproduced today, the economic analysis would be the same.

13 Hirschl, R., Comparative Matters: The Renaissance of Comparative Constitutional Law (Cambridge University Press 2014)Google Scholar.

14 The mechanism is reasonably obvious: a dominant party can more easily control the appointment of judges, both in connection with individual judges and in designing the system of judicial selection, than can parties in competitive systems, where power generally, but also power over the judiciary, rotates among the parties.

15 A similar problem of political opportunism may attend the current Chinese discussion of constitutionalism as a Western value, but perhaps something of intellectual value will ultimately emerge from that discussion.

16 Annelise Riles has written some extremely interesting works on comparative law from an anthropological perspective, and Bruno Latour’s study of the French Conseil d’Etat is in the hermeneutic tradition. I simply report my sense that this scholarship has not had much of an influence on the field, at least in the United States.

17 My formulation is designed to capture the thought that, while one might find every specific way of thinking about comparative law in any nation, one might also find a larger proportion of scholars using a single approach in one nation than one finds in another.

18 As one indication, the first edition of what has become the widely-used coursebook on comparative constitutional law that Vicki Jackson and I co-authored did not contain a discussion of the idea of constituent power. A brief discussion has since been added. I speculate that European scholars are more interested in constitutional foundations in this sense than U.S. scholars because, with constitutions that are either unwritten or relatively new, those foundations are more proximate to them.

19 For example, the political scientist Walter Murphy wrote comparative public law scholarship about constitutional foundations as Europeans would understand the term, and his students, including Gary Jacobsohn, have continued to do so.

20 These differences are reflected, I believe, in the receptivity in non-U.S. based scholarship to the proposition that constitutions should incorporate socio-economic rights, and that courts should enforce them in some appropriate way. U.S.-based scholarship is substantially more skeptical, even putting to one side the domination of that scholarship by a jurisprudence from the U.S. Supreme Court that rejects the view that the U.S. Constitution enacts socio-economic rights.

21 I have far less familiarity with scholarship in comparative private law, but I suspect, without much supporting evidence, that there are similar ‘training’ effects with respect to the use of law-and-economics approaches: private law scholars who receive post-graduate training in the United States seem to me more likely to use those approaches than private law scholars trained in European universities.

22 An instructive recent example is Bhatia, G., Offend, Shock, or Disturb: Free Speech Under the Indian Constitution (Oxford University Press 2016)CrossRefGoogle Scholar, written by a scholar who received his post-graduate training in the United States and which uses U.S. free speech doctrine as the primary comparator rather than British or European doctrine.

23 The causes of this possible dissolution, such as the diversification of the national and regional traditions in which scholars of comparative law are educated, may themselves be features of globalisation as well.