Comparative Methodology and Pluralism in Legal Comparison in a Global Age (original) (raw)

Global Legal Pluralism: A New Way of Legal Thinking

SSRN Electronic Journal, 2000

The subject matter of this article is the terminology which is used in contemporary law and sociological jurisprudence to denote changes in legal regulation. Among the most fashionable terms are those of globalization and pluralism. In the author's opinion, these two terms indicate diverse phenomena and have different tasks. Pluralism is a concept allowing the description and explication of various legal facts, institutions, relations which are not generally recognized in state-centered theory of law. Globalization is a common name for the distinctive characteristics which distinguish the present-day Western civilization from other civilizations. The amalgamation of these two different aspects into one set of methods and ideas inspired by the need to explain modernity does not lead to the formation of a new methodology or of a scientific conception. Rather globalization talks about plurality in contemporary law having another functionto describe the changing mentality, new ways of legal thinking which are growing in the Western world. These changes have repercussions in many fields of science, i.e. in a new understanding of such traditional concepts as sovereignty. JEL Classification: K1.

Normative and Legal Pluralism: A Global Perspective

The Oxford Handbook of Transnational Law

This chapter sets out to demystify the topic of legal pluralism by examining the relationship between legal pluralism, normative pluralism, and general normative theory from a global perspective. The central theme is that treating legal pluralism as a species of normative pluralism decenters the state, links legal pluralism to a rich body of literature, and helps to show that some of the central puzzlements surrounding the topic can usefully be viewed as much broader issues in the general theory of norms and legal theory. A second theme is that so-called “global legal pluralism” is in several respects qualitatively different from the older anthropological and sociolegal accounts of legal pluralism and is largely based on a different set of concerns. Following the introduction in section I, section II considers normative pluralism. It explores the ambiguity of “pluralism” and some themes in general normative theory. Section III introduces the heritage of literature on legal pluralism...

Comparative Law in a Global Context: Introduction

2006

This was given to LSAA students 2004/5 Since well before the 21 st century, 'globalisation' has been a prominent issue in many academic subjects. A literature search shows that globalisation, linked to postmodernism, is a fairly new concept which has given rise to a large body of writing. 1 While postmodernism appeared in the 1980s, globalisation emerged as a prominent concept in the 1990s. Unlike postmodernism, which remains heavily contested as a concept and methodology, globalisation as a widely observable fact is not widely challenged as a phenomenon, but scholars argue about its consequences. The present study explores how these concepts feed from, and in turn impact on, our understanding of law in a global context, with specific reference to the legal systems of Asia and Africa. Global migration patterns, old and new, and multiple exchanges between different states, economies, societies and legal systems on a variety of scales and through different methods have over time created transnational, inherently plural, multi-ethnic and multicultural environments, which are becoming ever more prominent in reality today. Yet, mainstream legal science continues to behave as though globalisation simply means and creates uniformisation, resisting evidence, from everywhere in the world, that global harmony and understanding will only be achieved by greater tolerance of diversity, not by enforced uniformity. Glenn (2000), Twining (2000) and others have provided refreshingly positive and convincing arguments for the recognition of all legal traditions in the world and for a systematic rethinking of legal theory. The present study seeks to expand such encouraging suggestions, 2 applying and extending them specifically to the necessarily complex study of the legal systems of Asia and Africa in a global context. It is evident that globalisation and legal theory are today hugely important subjects (Twining, 2000: 88) and that a plurality-focused international legal science is possible (Zweigert and Kötz: 1998: 45). However, while some traditional assumptions and prevailing orthodoxies are beginning to fade and much rethinking is taking place (Harding and Örücü, 2002: vii), it has proved difficult to reorient traditional legal concepts of theory and analysis. 3 Twining (2000: 232) notes: Lawyers and law students encounter normative pluralism every day of their lives, in legal and non-legal contexts. Yet legal pluralism is generally marginalised and 1 Robertson (1986; 2000; 2003) is a major contributor to the debates. From an Indian sociological perspective, Doshi (2003: 363-366) contains a useful overview on the history of globalisation. Twining (2000) mainly surveys writing concerned with legal theory, while Harding and Örücü (2002: 305-11) produce a helpful short bibliography of comparative law.

Addressing Methodological Challenges in Comparative Law Research

The Hiroshima law journal, 2021

Comparative law is a field of study whose object is the comparison of legal systems with a view to obtaining knowledge that may be used for a variety of theoretical and practical purposes. It embraces: the comparing of legal systems with the purpose of ascertaining their differences and similarities; the systematic analysis and evaluation of the solutions which two or more systems offer for a particular legal problem; and the treatment of methodological problems that arise in connection with the comparative process and the study of foreign law. One type of interest pertaining to knowledge and explanation in comparative law is associated with the traditional comparison de lege lata and/or de lege ferenda. Pursuant to this comparison are searches for models for the formulation of new legislative policies at a domestic, regional or international level. Comparative law can also be a valuable tool when courts and other authorities interpret and apply legal rules or are faced with the task of filling gaps in legislation or case law. However, when carrying out their tasks, comparative law researchers are often faced with vexing methodological problems.

METHODOLOGY OF COMPARATIVE LAW TODAY: FROM PARADOXES TO FLEXIBILITY

L'article présente une critique envers les positions normatives, rigides et paradoxales dans le débat méthodologique de droit comparé aujourd'hui. L'auteur étudie les différentes possibilités d'une nouvelle approche pour concevoir une méthodologie. Il fait une analyse des méthodologies de tendance générale ainsi que des méthodologies en dehors de celle-ci. Les contradictions entre les deux sont considérées comme artificielles par rapport à leur caractère fondamental. Ce que l'auteur propose est un procédé plus ouvert pour la création de méthodologie ; celui-ci serait capable d'échapper à une partie des problèmes se trouvant aux deux extrémités du débat méthodologique. Cela évoque l'idée d'une échelle méthodologique et, en outre, défend le travail d'équipe multidisciplinaire dans le domaine de droit comparatif. Il est proposé que la nature tout ou rien du débat méthodologique soit évitée à cause de son caractère irréaliste et parce qu'elle reflète la mauvaise image de soi de l'étude comparative du droit.

Methodology of comparative legal research

Researchers get easily lost when embarking on comparative legal research. The main reason being that there is no agreement on the kind of methodology to be followed, or even methodologies that could be followed. 1 Moreover, almost everything that was more or less established in the area of comparative law over the last century has been increasingly criticised during the last few decades: the concept of 'legal family', the possibility of comparison itself, the object of comparison, etc. On the other hand, comparing domestic law with the way the same area has been regulated in one or more countries has become almost compulsory in doctrinal legal research. How should a comparative researcher cope with this apparent paradox ?

The Philosophies of Comparative Law:Introduction

2021

This introductory essay outlines the Special Issue's aims and contents. After having offered a general overview of the development and state of comparative law as a discipline, it introduces the reader to the issue's articles. The issue features articles by leading scholars and emerging researchers that make significant contributions to the academic debate on the current status and future directions of comparative legal analysis and methodologies of research. More particularly, combining theoretically-oriented essays with empirical accounts of socio-cultural, pluralist dynamics of ordering from the Global South (i.e., Latin America) and Asia (i.e., Japan), it takes a further step towards molding a body of interdisciplinary, pluralist, critical, and contextual comparative legal scholarship by (a) critically exploring what "philosophies" have been informing and shaping its development over the past few decades, and (b) suggesting possible new directions of thought for an age, such as ours, characterized by increasing regulatory density and complexity, and geopolitical instability. It is by meaningfully embracing this critical, interdisciplinary, and pluralist spirit that this Special Issue moves away from reductionist understandings of the comparative enterprise and speaks of "philosophies" of comparative law.

Power, culture and method in comparative law

International Journal of Law in Context, 2009

This review essay draws on a recently edited handbook by Esin Örücü and David Nelken to reflect on the methodological concerns and challenges of comparative law and socio-legal research. It argues that the contextualisation of laws should be regarded as the indispensable methodological characteristic of all comparative studies of law that aspire to transcend the understanding of law as a body of rules and doctrine. It further argues that although the cultural perspective facilitates contextualisation of the law, a cultural understanding is neither a precondition for undertaking comparative legal research nor necessarily the correct approach under all circumstances; for certain aspects of law and legal behaviour need not be conceptualised in cultural terms. The essay concludes by proposing that the combination of top-down and bottom-up approaches could provide a metamethodological framework within which specific comparative techniques can be employed. Such a framework will enable comparatists and socio-legal researchers to account for how law interacts with, and simultaneously manifests itself at, the macro, micro and the intermediary meso levels of society over time.