Adversarial Comparativism: The Role of Emotion in United States–China Comparative Law Projects

In the closing decades of the twentieth century, the discipline of comparative law appeared to be on the wane, as it was largely subsumed under international law or transnational law, broadly conceived. As globalization took hold at the end of the Cold War and global or regional institutions such as the WTO, ICC, NAFTA, EU, AU, GCC, etc., proliferated, there was alarm at what was perceived as fragmentation of law. There was also an apparent scramble for the characterization or christening of the new or emerging system of norms or what Teubner described as “global bukowina.” It is suggested that what is really happening is the re-emergence or re-invention of comparative law. As the centers of power, capital, production, influence etc., diversify from their core Eurocentric conceptions and manifestations, so it is imperative that the legal traditions and interests of other parts of the world be factored into legal formations, discourses and practices. Comparative law therefore is no longer limited to the comparison of common law with civil law or the Code versus precedent. Even then, the conventional history or origin of the European systems is challenged. It is argued that common law, for example, has Islamic origins. Contemporary comparative law now takes cognizance of Islamic law, Confucianism, traditions of Africa and the Orient. Hence, the adaptation of the principles of Islamic finance in London, Dubai, Kuala Lumpur and elsewhere, the adoption of sustainability principles in property law, obligations and international law, the practice of restorative justice in criminal law and the role of victims in punishment and sentencing, the institutionalization of mediation, conciliation and negotiations in family law, business law as well as in the curricula of Western Law Schools. Contemporary comparative law also embraces international law in all its fragments. The relationship between international law and domestic law is no longer pristine or hierarchical. It is both horizontal and complementary. The strict application of monist and dualist theories has become quite obsolete or unrealistic. It is for these reasons that the College of Law of Qatar University, under the leadership of Dean Hassan Okour, conceived and organized a conference on comparative law in 2012. The theme was “The Comparative Law Triangle: The Influence of Islamic Law, Civil law and Common Law on Each Other.” It brought together scholars in comparative law from Canada, France, Egypt, Germany, United States, United Kingdom and other jurisdictions who joined colleagues from Qatar University in deliberating on the modern issues of comparative law. Papers were presented on constitutional law, business law, criminal law, obligations and others, reflecting on the points of convergence and divergence in the various legal traditions. There were papers that also discussed international law and its relationship to domestic law, the ethics of legal advice leading to the financial crisis of 2008, the place of human dignity in constitution making as well as the pedagogy on comparative law as a discipline. The articles presented in this special issue of International Review of Law (IRL) were a selection from the papers presented at the conference. As the convener of the conference, I can testify to the rigor of the papers presented and the animated discussions and debates that followed the papers. It is my privilege and honor to present a selection of the papers to the wider global audience of the journal. In making the selection, the referees and editors were minded by both the rigor of the papers, their relevance to the region and their reflection of the four key panels of the conference – constitutional law, criminal law, obligations and business law.

Comparatists love to wail about the state of their discipline. To read contemporary comparative legal literature is, therefore, to witness a pitiful series of testimonials about the alienation of the comparatist. The discipline of comparative law, it seems, is marginalized in any number of ways. Thus, ‘[w]e comparative lawyers often complain that our colleagues see our work as peripheral.’ Comparative law ‘has enjoyed so little prestige in the inner circles of the academy’. This ‘marginal status’ of the discipline results in, and is reflected by, the lack of ‘full-time comparative law scholar[s] on the faculty’ of a distressingly large number of prestigious US law schools. Even within the US law-school curriculum, the discipline is but ‘a subject on the margin’. In order to remedy this apparent marginalization, comparatists have argued repeatedly for the adoption and deployment of some form of ‘theory’. According to Ugo Mattei and Mathias Reimann, comparative law exhibits ‘a lack of methodological reflection and theoretical foundation’. In the dialogue between Pierre Legrand and John Merryman, the former decries ‘the poverty of legal theory in the comparative field’, while the latter simply notes: ‘I do not know of anyone who has done substantial theoretical work addressed to what comparative law really is about.’ This theoretical imperative has been promoted in many forms. If comparatists could only develop and deploy the proper methodology – whether functionalist, economic, philosophical, cultural or otherwise – comparative law would, it seems, find its rightful place as a discipline.

The present article is the Brazilian Report submited to the 2018 Fukuoka international congress on comparative law. This report works, in a first moment, with notions of comparative law, especially involving different cultural traditions. Then, from a bibliographical point of view, the Brazilian legal system is analyzed, as well as concrete cases related to different national experiences, which allows the dialogue between distinct legal orders. To this end, the paper starts from the “common language” of human rights, demonstrating, for example, the possibility of dialoguing between two national or international courts (horizontal approach) through borrowings (vertical approach). In that way, the main conclusion is that the importation of legal models helps to sediment the need for this dialogue to act as a two-way procedure and not just as a blind imposition of an exogenous model. In a second part, the current paradigm on legal education is outlined to examine how it may be able—or not—to deal with multicultural classes. As a result, it is found that in Brazil, since the discipline of comparative law is not traditionally seen as an object of reflection, it is imperative to rethink the role of legal education in order to create a multicultural environment, capable of reproducing the complexity of todayʼs world in classroom. To corroborate this position, the adoption of affirmative policies reserved for vulnerable groups by Brazilian public universities is addressed, which has helped to build a plural legal learning environment.

We are living in an era in which constitutional law has become a comparative science. A cogent, generally accepted methodology for constitutional comparison, however does not exist. There can, it is therefore submitted, be no such thing as a universal, monolithic science or discipline of comparative law, be it in the field of private or of public law. On the other hand, juridical comparison done unscientifically will not yield the fruits of useful knowledge. The law in general is replete with unspecific notions such as justice, reasonableness, public interest, boni mores, and many others. It should therefore not be disturbing to find that values are often foundational to the operation and application of constitutional law. The values underpinning different constitutional systems may be useful as a tertium comparationis in a comparative exercise. This however requires a penetrating consideration of the foundations of the systems being compared. In this contribution "a small comparative exercise" is undertaken by way of demonstration of the method. The South African constitutional provisions relating to equality and affirmative action are set against the background of the relevant norms and practices in the United States of America and Canada. This produces some useful insights: in the USA equality increasingly underpins a strict proscription of discrimination, thus shrinking the scope for justifiable affirmative action programmes; the South African law relating to discrimination and upliftment of the disadvantaged was clearly influenced by, and is therefore better understood against the background of, the equivalent arrangements in Canada, which was in its turn possibly conceived against the backdrop of early developments in this regard in the USA; the Canadian doctrine and law of the constitution deals with affirmative action as an exception to the prohibition of discrimination and does not favour private affirmative action programmes; the South African approach seeks on the one hand to promote equality as a near-absolute prohibition of discrimination, while on the other hand affirmative action is projected not as an exception to nondiscrimination, but as a means of achieving equality; whereas the identification of disadvantage in the USA and Canada tends to focus on discrete and insular minorities, the South African Constitution deals with an obvious reality of past disadvantage of a substantial majority, thus probably giving preferential programmes in South Africa a different character. It is concluded that "comparing with values" has, at the very least, the potential of revealing which foreign sources can justifiably be used locally as authoritative or pursuasive references, and which not.

Bermann George A. The discipline of comparative law in the United States. In: Revue internationale de droit comparé. Vol. 51 N°4, Octobre-décembre 1999. pp. 1041-1052.

Montesquieu frequently used analogies from antiquity, the English political system, or the Chinese legal system in his classic work 'De l'esprit des lois'. To conduct and convey legal research more effectively, it is not sufficient to analyze a single system. Through real-world experiences, exposure to the legal environment enables the development of a particular cultural and sociological philosophy of the rule of law. We believe that comparative law is a challenging discipline to situate. It takes a social science and a legal perspective. According to Édouard Lambert, comparative law has two conceptions: one in which it is viewed as a social science, and another in which it is viewed as a higher kind of legal art. To distinguish between these two ideas, he asserts that the first "social" approach places a premium on comparative history, whilst the second "legal" approach focuses on comparative legislation, specifically on the legal systems of distinct peoples.

Journal Article Comparative Law 100 Years After the First World Congress – Centennial World Congress on Comparative Law – New Orleans (United States of America), 2–4 November 2000. Congress organised by the International Association of Legal Science and the Eason Weinmann Center for Comparative Law, Tulane University, and co-sponsored by the American Society of Comparative Law and the International Academy of Comparative Law. Get access Uniform Law Review, Volume 5, Issue 2, April 2000, Pages 301–302, https://doi.org/10.1093/ulr/5.2.301 Published: 01 April 2000

Journal Article Comparative Conflicts Law and the Concept of Changing Law Get access Barna Horvath Barna Horvath 1Barna Horvath is former Professor of International Law and Philosophy of Law of the Universities of Kolozsvár, Szeged, and Budapest and former Member of the Hungarian Academy of Science. Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 15, Issue 1-2, Winter-Spring 1966, Pages 136–158, https://doi.org/10.2307/838864 Published: 01 February 1966

The beginning of the next calendar year marks sixty years since the Patrice Lumumba University of Peoples' Friendship (later was renamed to Peoples' Friendship University of Russia, RUDN) was founded. Within these sixty years the Faculty of Economics and Law, the Faculty of Law have been operated until the Law Institute, maintaining continuity, took the place. As one of the university graduates and a student of prominent Soviet scholars who stood at the origins of several schools of comparative law that currently exist, the author attempted to follow the dialectical process of formation, development and systematization of the scientific school of comparative constitutional and municipal law that is connected not only with the special nature and features of teaching foreign and domestic students, but also with significant achievements in the field of preparation of candidates in and doctors in this specialty. Contrary to other universities, comparative legal analysis was using as a basis for preparation of domestic law specialists for the states set free from colonial dependence and that explains the choice of regional and country-specific research model for forms of government, administrative organizational structures, political regimes of leading Asian, African and Latin American states with “socialistic” or “capitalistic” orientation. These mentioned states took the path of independent civilizational development, came through the periods of sovereignization and “decolonization” of wide range of political, economic and social relations. The formation of the “grounds” for African, Latin American, ArabMuslim, Indian comparative studies is connected with the Department of Theory and History of State and Law, within which the scientific foundation of the school of comparative constitutional and municipal law was laid, the “baton was picked up”, at first, by the Department of Constitutional, Administrative and Financial law, and then by the Department of Constitutional and Municipal law, Constitutional law and Constitutional justice and Municipal law that maintained and updated the best traditions related to the training of Russian and foreign students, postgraduate students and doctoral students. At the present stage, comparative law is experiencing a new stage, caused by interest in the processes taking place in the United States and the European Union.

Comparative law offers scholars a fascinating lens through which to discover new insights about the world, but only if we take on comparative law projects. Few legal scholars devote a substantial strand of their research to comparative study, and so their work fails to benefit from the active and prolonged debates in comparative law. This Article makes a singular, but hopefully substantial, contribution: it seeks to render more accessible the comparative law scholarship with the aim of facilitating easier access to comparative law insights for tax (and hopefully other) law scholars. Put another way, the Article seeks to engage taxcomparatists (or would-be comparatists) in a “co-operativeenterprise” where we are more likely to engage with each other with the “goal of improving understanding.” In short, it seeks to enhance the discipline of comparative tax law by enabling other tax scholars to write better comparative tax law scholarship.
 The Article develops a taxonomy of the purposes of comparative tax scholarship. Understanding comparative tax law scholarship according to its purposes assists scholars in their thinking about how to make and evaluate decisions about their comparative choices. The purpose of a scholarly project dictates some, if not all, of the decisions about what and how things should be compared. Articulating and refining the purpose of a project achieves two goals for authors. First, it provides the scholar with a benchmark against which to make decisions about the scope of the inquiry; which units (countries) should be chosen; how many countries are necessary for comparison to be robust; and how detailed a knowledge of each country’s tax laws, practices, and context is required for an effective study. These are the decisions that generate most of the debate among comparative law scholars. Second, and perhaps most importantly, it provides the scholar (and readers) with the ability to evaluate the quality of the work.

How should comparative law scholars engage with other disciplines? Which social sciences are relevant for the purpose of comparison? Such questions are important for the process of comparison, as disciplinary self-regulation (and interaction between disciplines) is not a neutral and objective process, and is always informed by embedded political, ideological, ethical preferences. Or, the act of selecting ways of reading, thinking and writing in the service of any task requires the explicit or implicit endorsement of epistemic and hermeneutic authority. In this essay, I review three recent volumes on comparative law – a companion volume, a book of practice-oriented reflections by scholars who engage in comparative legal scholarship, and a region-specific contribution on Comparative Constitutionalism in South Asia. The approaches adopted in the volumes – concentrating on the science of comparative law, finding a middle way between too much complexity and too little, concentrating on region-specific complexities – do not address the issue of negotiating epistemic and hermeneutic authority posed above. Such negotiation may be facilitated by concentrating on what I suggest is the organising principle of the discipline of comparative law: identifying the construction, perpetuation and functionality of the internal authority of law.

In 2002, Professor Randall Peerenboom published a major work on legal reforms in post-Mao China, entitled “China’s Long March Toward Rule of Law”. In 2011, Professor Carl Minzner published a major article on trends of legal development in China in the first decade of the 21st century, entitled “China’s Turn Against Law”. Has China really embarked upon a “long march toward Rule of Law” since Deng Xiaoping initiated the era of “reform and opening” in the late 1970s? If so, has there been a regression or retrenchment in Rule of Law developments in China in recent years? These questions cannot be properly addressed without first reflecting on what methodology or approach we should adopt in describing and assessing legal developments in contemporary China. This paper therefore consists of two main parts. Part I engages in methodological reflections on the study of contemporary Chinese law as an exercise in comparative law, by reviewing and commenting on some relevant writings of leading scholars in the field. Part II of the paper then proceeds to evaluate the legal reforms in post-Mao China and recent trends in the Chinese legal system.

In the United States today, comparative law does not play nearly as prominent a role in teaching, scholarship, and practice as one would expect in our allegedly cosmopolitan age. Perhaps the discipline is not in an outright crisis but it surely does not occupy a prominent place in the American legal universe either. It is quite common to blame the parochial attitude and lack of international sophistication of American lawyers for the marginal role of comparative law. But, as a matter of fact, interest in international legal subjects, ranging from human rights to foreign trade law and international litigation, is currently high and growing fast. Course offerings in these and other specialized areas have mushroomed,1 the number of international journals is staggering, and in January 1998 the AALS held yet another annual meeting trumpeting the globalization of law. Only classic comparative law, it seems, has somehow missed the boat. This indicates that we, the American comparatists, have simply not been able to sell our product well to our students, our academic colleagues, and certainly not to the practitioners. A major reason for this failure is that the product in its current form is not nearly as attractive as we would like to think. In large part, this is because the design of the product is badly flawed. It is essentially a copy of a foreign model which suffers from two fundamental ills: It is hopelessly out of date and it was never fashioned to fit either global or American needs. As a result, comparative law in the United States is both behind the times and far off the mark. In this essay, my main goal is a (partial) deconstruction of the traditional model of comparative law in the United States. I first briefly describe this model and its European lineage (I.). I then explain why its three major features neither reflect current global realities nor serve modern American needs (II.- IV.). I conclude that the

This chapter represents my contribution to a book provisionally entitled Comparative International Law, scheduled for publication by Oxford University Press in 2017. It describes the emerging field of foreign relations law and discusses critiques of this field as an assault on international law, especially international human rights. It explores the ways in which this new field resembles both comparative international law and concerns about fragmentation in international law. All three pursuits challenge the traditional conception of general international law as uniform and universal and shift the focus of legitimating international law away from moral persuasion to falsifiable empirical claims.The chapter argues that rather than threatening international law, foreign relations law and its intellectual siblings point to a strategy for bolstering the field. They serve as a means of identifying the functionally discrete dimensions of international law, as opposed to a unified and homogenous conception. Given the risks entailed in a universal, values-based international enterprises, as exhibited by past dystopias, an empirically grounded functionalism holds the most promise for protecting the field’s relevance and value.

In this paper I will argue that the fate of comparative law will be determined by its ability to function as a connecting field between law and other social sciences. I will further argue that there is no future for comparative law if its future is linked to the so-called globalization of the law. In recent years it has become fashionable to talk about the globalization of the law. A number of eminent law schools led by New York University have made clear their commitment to a global law program. In addition, a sizeable number of conferences focusing on international and comparative law have been organized, and a symposium issue of the Journal of Legal Education was devoted to the topic of globalization,l as was the 1998 AALS meeting in San Francisco. In view of this trend, the question arises: What is the future of comparative law in the global law school? The seemingly obvious answer is that comparative law will have a brilliant future in this new institutional environment. After all, comparative law scholars, since the birth of their discipline early in our century, have been claiming that the legal system does not end at the borders of the nation state. They have warned against parochialism, national positivism, state-centrism, and all the other sins that they detect in their provincial law school colleagues. Moreover, comparative law scholars are the only ones who have invested in preparing for the collapse of the nation state and the subsequent reversion to a period, much like the time of the ius commune in Europe, when the nationality of a lawyer does not matter and the law has its force not ratione imperii but, once again, imperio rationis. Rather than stemming from the State, the authority of law would flow from its intrinsic character regardless of which jurisdiction produced the law.