How Universal Is Comparative Law? 22.10.2024 PDF

HOW UNIVERSAL IS COMPARATIVE LAW? 22.10.2024 - What is “comparative”? - Existential tensions - Universalism and Particularism (divides in scholarship and case law) - World Series Syndrome - Global South Critique Reading: R. Hirschl, Comparative Matters: The Renaissance of Comparative Constitutio...

HOW UNIVERSAL IS COMPARATIVE LAW? 22.10.2024 - What is “comparative”? - Existential tensions - Universalism and Particularism (divides in scholarship and case law) - World Series Syndrome - Global South Critique Reading: R. Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law, 2014 (Chapter 5 “How Universal is Comparative Constitutional Law?”, pp. 192-223) Definition of COMPARATIVE 8 different types of scholaship may be considered: 1) single-country study (implicit comparison?) 2) Genealogies and taxonomic labeling of legal systems 3) Surveys to find the «best» regulation 4) References to foreign law or judgments to foster self-reflection 5) Description of different rules on the same constitutional phenomenon to elaborate concepts bottom-up 6) Normative/philosophical analysis of abstract concepts like «constitutional identity» 7) «Small-N» analysis to prove causal arguments that can be applied beyond the cases 8) «Large-N» analysis to check correlations among variables 7 and 8 aim to explain changes, evolution, dynamics, diffusion of models among different systems EXISTENTIAL TENSIONS 1) Substantive discipline or method? How much has changed since 1900? 2) How to explain legal change and circulation? 3) How to explain convergence and persistent divergence? 4) How to overcome the formalistic and mainly descriptive scholarship similar to the one of the 20th century? The matrix of these tensions in comparative constitutional law is the TENSION BETWEEN UNIVERSALISM AND PARTICULARISM Universalism and Particularism They reflect different philosophical approaches: 1) “Nomothetic” – the aim to generalize, to infer general laws able to explain categories UNIVERSALISTS 2) “Idiographic” – the aim to specify (social sciences and humanities), to grasp unique and peculiar, cultural phenomena PARTICULARISTS/CULTURALISTS The debate on LEGAL TRANSPLANTS proves it: Universalists claim there have been transplants independently of the concrete features of the legal systems (Watson) Culturalists/Particularists/Relativists claim that the law of each system is too connected to linguistic and cultural features of that country (Legrand) → This divide is also reflected by the following divide (in constitutional legal scholarship): 1) Constitutional Sovereigntists – national demos is the ultimate sovereign; domestic traditions are unique and context-based; therefore, global law lacks legitimacy and moral authority 2) Global Constitutionalists – focus on universal values, relevance of international and supranational standards (human-rights oriented studies). Kumm claims that the legitimacy of a State depends on its international embedment as well + 3)Constitutional Pluralists (European framework) – overlap of constitutional standards between different legal systems: domestic, EU, ECHR In CASE LAW, conflict between domestic norms and international/foreign standards In favor: universality of human condition and standards Against: incompatibility of external norms with respect to the domestic identity Examples ECtHR: -case Sejdić and Finci v. Bosnia on restriction for political offices and non discrimination (2009) universal over particular -case Lautsi v. Italy (2011) particular over universal See Joseph Weiler’s intervention on the lack of common standards: https://www.youtube.com/watch?v=ioyIyxM- gnM&ab_channel=mkobplease The conclusion of the reasoning… UNIVERSALISTS overemphasize commonalities PARTICULARISTS/CULTURALISTS overemphasize differences Current situation: - Mutual influences and transnational legal and constitutional context (Vicki Jackson) - Comparison still requires unity and plurality (Valcke) - A balance between difference and sameness is needed “World Series Syndrome” and the Global South critique - Often “comparative” conclusions rely on few western, stable democracies - Baseball – the world series involves 30 teams (29 US, 1 CA) - This choice reflects the PREFERENCE FOR A SET OF (WESTERN OR NORTHERN) VALUES “the Global South critique” (first vs. third world; developed vs. developing…) - Rough understanding of the divide: North America, Europe, Oceania`+ Japan vs. Africa, Latin America, Asia and Middle East - The North would have higher standards of democracy, more stable economies… - Problem of BRICS (Brazil, Russia, India, China, South Africa): fast-growing, more industrialized, very populated → LAW AND DEVELOPMENT APPROACH: based on the idea that Western legal standards can be exported and implemented in southern countries and will improve also economic standards -Western rules are more favorable towards foreign investors (for instance, protection of property) In COMPARATIVE CONSTITUTIONAL LAW, similar approach overemphasizing the role of few western countries: - Focus on increasing stability in the Global South more than responding to recent trends in the global north - “human rights” reflect the western divide (civil and political; economic, social and cultural rights; collective) - Upendra Baxi: MODERN (hegemonic practices endorsed by international law; small section of the population entitled with rights) and CONTEMPORARY (more universal and individual-based) - The divide state law-religious norms obviates millions of people (Israel-Sri Lanka, preferential status; Thailand, religion as identity; Islam rules are included in the constitution – Tunisia, Egypt…) ASIA from Indian secularism to Iran’s constitutional theocracy - Further critiques: avoid extrapolating values only from liberal democracies of the West (Schwöbel); avoid the approach of “the sacred duty to civilize” (Tully); understand that southern countries may provide significant contributions (Menski) - Sujit Choudry: more frequent set of cases (US, Germany, UK - + France -, South Africa, Israel, Canada,New Zealand and less India) - Cheryl Saunders explains MARGINALIZATION of some systems which are a) overlooked; b) presumed to be similar to the standards; c) reserved for anthropological or sociological studies - Daniel Bonilla Maldonado (Indian, South African and Colombian apex courts) – countries of the south are presumed as derivative of European systems; less effective Challenges of the Global South critique to contemporary scholarship: 1) Stop generalizing from little consistent samples as universal truth 2) Stop focusing on liberal rights, limitations of powers, instead of human development or distributive justice FLAWS/DIFFICULTIES OF RESPONDING: 1) over-inclusiveness (160 polities…) 1.1 A new block “non northern”? 1.2 Two many differences among southern countries 2) Blurry definition of South Non-canonical, peripheral, marginalized? But also some European countries… 3) It is based on non under-represented cases Therefore… - References to southern countries can be useful in terms of “black swan effect” to avoid uniformization - Large-N studies may be more comprehensive, ALTHOUGH they underestimate contextual elements (paradox) [Issues on the selection of the cases remain]