Transsystemic Legal Education and the Comparative Method(s)

Abstract

A large part of the literature on “transsystemia” starts from the assumption that the transsystemic program of legal education should overcome the epistemological limitations of traditional comparative law. Transsystemism, in other words, has been conceived since its beginnings as onthologically different from “comparatism”. However, if comparative law is regarded as a “method” (or better as a theory), and not as a “discipline” (with its own history and constraints), what does “comparative law” really mean? And what are the differences between comparative and transsystemic approaches to the law? On the basis of my teaching experience in Europe (comparative law) and in Canada (transsystemic tort law), I will focus on the differences and similarities between comparative and transsystemic approaches to law and legal education. I will make three main points: 1) Comparative law – as a method – does not exist; we should rather speak of comparative approaches to the law; 2) Depending on the specific features of the single approach, comparative reasoning may reinforce or – on the contrary – disrupt the exclusionary epistemology implied in the positivist description of legal systems; 3) Conceived as a theory of law, comparativism largely overlaps with transsystemism, which is nothing but high-level comparative law in action; both approaches have to be conceived as liberating exercises and instruments aimed at a deep comprehension of the actual working of the law in a pluralist environment.