Podcast
Questions and Answers
What term describes the philosophical approach that aims to generalize and infer laws applicable to categories?
What term describes the philosophical approach that aims to generalize and infer laws applicable to categories?
Which group argues that legal systems are deeply linked to the linguistic and cultural features of a country?
Which group argues that legal systems are deeply linked to the linguistic and cultural features of a country?
What legal conflict arises between domestic norms and international standards?
What legal conflict arises between domestic norms and international standards?
What do Global Constitutionalists emphasize regarding the legitimacy of a State?
What do Global Constitutionalists emphasize regarding the legitimacy of a State?
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In the context of constitutional scholarship, which viewpoint prioritizes the unique and context-based nature of domestic traditions?
In the context of constitutional scholarship, which viewpoint prioritizes the unique and context-based nature of domestic traditions?
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What is typically included in the process of comparative law research?
What is typically included in the process of comparative law research?
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Which of the following best describes the term 'World Series Syndrome' in comparative law?
Which of the following best describes the term 'World Series Syndrome' in comparative law?
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In comparative law, what does the 'Large-N' analysis primarily focus on?
In comparative law, what does the 'Large-N' analysis primarily focus on?
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What existential tension in comparative law relates to legal change and circulation?
What existential tension in comparative law relates to legal change and circulation?
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What is one critique mentioned regarding comparative law scholarship?
What is one critique mentioned regarding comparative law scholarship?
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What is a primary critique of the standard practices in comparative constitutional law?
What is a primary critique of the standard practices in comparative constitutional law?
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Which term reflects the overemphasis on commonalities in legal scholarship?
Which term reflects the overemphasis on commonalities in legal scholarship?
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What does the term 'World Series Syndrome' critique?
What does the term 'World Series Syndrome' critique?
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Why is the Law and Development approach criticized?
Why is the Law and Development approach criticized?
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What does Upendra Baxi's distinction between 'modern' and 'contemporary' practices imply?
What does Upendra Baxi's distinction between 'modern' and 'contemporary' practices imply?
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Which aspect of governance does the Global South critique emphasize?
Which aspect of governance does the Global South critique emphasize?
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What does the critique regarding the marginalization of some legal systems suggest?
What does the critique regarding the marginalization of some legal systems suggest?
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Which of the following illustrates a flaw in generalizing from southern countries?
Which of the following illustrates a flaw in generalizing from southern countries?
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What challenge is posed by the concept of the 'blurry definition of South'?
What challenge is posed by the concept of the 'blurry definition of South'?
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What is one of the consequences of focusing primarily on liberal rights in legal systems?
What is one of the consequences of focusing primarily on liberal rights in legal systems?
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Study Notes
Defining Comparative Law
- Comparative law is a multifaceted field with various approaches
- Single-country studies can involve implicit comparisons.
- Genealogies and classifications of legal systems are another type.
- Surveys aim to identify the "best" regulations.
- Foreign law references can encourage self-reflection.
- Descriptions of different rules on similar constitutional phenomena build understanding from the ground up.
- Normative analyses explore abstract concepts like "constitutional identity."
- "Small-N" analyses prove causal arguments with broader applicability.
- "Large-N" analyses examine correlations among variables.
- The goal of "Small-N" and "Large-N" analyses is to understand legal change, evolution, dynamics, and model diffusion.
Existential Tensions in Comparative Law
- Is this a substantive discipline or a method? This question has evolved since the start of the 20th century.
- How to explain legal change and spread?
- How to explain convergence and persistent divergence?
- How can we overcome the largely descriptive scholarship of the 20th century? This tension fuels the debate between universalism and particularism in comparative constitutional law.
Universalism vs. Particularism
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These two approaches stem from different philosophical perspectives.
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Universalism (Nomothetic): The aim is generalization, deriving universal laws to explain categories.
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Particularism (Idiographic): The focus is on specificity, understanding unique and culturally-specific phenomena.
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The debate on legal transplants highlights this divide:
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Universalists argue that transplants occur independently of the specific features of legal systems.
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Particularists/Culturalists argue that each legal system's laws are inherently linked to the country's language and culture.
Constitutional Legal Scholarship
- This debate is reflected in constitutional legal scholarship:
- Constitutional Sovereigntists: National democracies are the ultimate authority. Domestic legal traditions are unique and context-specific. Global law lacks legitimacy and moral authority.
- Global Constitutionalists: Emphasize universal values and the importance of international and supranational standards. Focus on human rights-oriented studies.
- Constitutional Pluralists: Highlight the overlap of constitutional standards between different legal systems (domestic, EU, ECHR).
Case Law and the Universal vs. Particular Debate
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Cases involving clashes between domestic and international/foreign standards raise this debate:
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Arguments for Universality: The human condition and certain standards are universally applicable.
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Arguments for Particularity: Externally imposed norms may be incompatible with a country's national identity.
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Examples from the ECtHR:
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Sejdić and Finci v. Bosnia (2009): Universal principles of non-discrimination prevailed over particular concerns.
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Lautsi v. Italy (2011): Particularistic concerns outweighed universal values.
World Series Syndrome and the Global South Critique
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The "World Series Syndrome" involves focusing on a limited number of Western, stable democracies in comparative studies. This preference for a set of "Western" or "Northern" values leads to issues.
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The Global South Critique:
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This critique examines the division between the "First world" vs. "Third world" or "developed" vs. "developing" countries.
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The "North" is often seen as having higher standards of democracy and more stable economies.
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BRICS countries (Brazil, Russia, India, China, South Africa) challenge this traditional hierarchy due to their economic growth, industrialization, and large populations.
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Law and Development Approach:
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Assumption that Western legal standards can lead to economic improvements in Southern countries.
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This approach may favor foreign investors by prioritizing protection of property rights, which may not always benefit local populations.
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Comparative constitutional law similarly overemphasizes the role of Western countries in the Global South, prioritizing stability over responding to trends in the Global North.
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The "Human Rights" Divide:
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The concept of "human rights" may also reflect Western values, particularly regarding civil and political rights versus economic, social, and cultural rights, and individual versus collective rights.
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Upendra Baxi: Distinguishes between "Modern" and "Contemporary" visions of human rights.
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"Modern" rights are limited to a small segment of the population and are shaped by hegemonic practices.
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"Contemporary" rights are more universal and individual-based.
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State law vs. Religious Norms: The tension between state law and religious norms affects millions of individuals.
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Examples include countries like Israel, Sri Lanka, Thailand, and Tunisia.
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The inclusion of religious rules in constitutions creates complexity.
Challenges of the Global South Critique
- The critique challenges contemporary scholarship:
- Avoid generalizing universal truths from limited Western samples.
- Shift the focus from liberal rights to human development and distributive justice.
Difficulties in Responding to the Critique
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Over-inclusiveness: Including all 160 polities makes analysis difficult.
- Should a "non-northern" block be created? However, there are significant differences among Southern countries.
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Blurry Definition of "South":
- What defines 'non-canonical' and 'marginalized' countries?
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