Comparative Rights Jurisprudence: An Essay on Methodologies
Law and Method, Forthcoming
34 Pages Posted: 23 Oct 2017 Last revised: 21 Nov 2017
Date Written: October 20, 2017
This paper discusses three approaches that can be helpful in the area of comparative rights jurisprudence, oriented in reference to three different kinds of studies that are possible in that area. To a large extent the methods for a comparative legal research depend on the research question and the goal of the researcher. First, a comparative law study may focus on the sociocultural context that led to the elaboration of differences or similarities in the protection of rights. In this respect a study of comparative law is by definition an interdisciplinary study. Second, a comparative law approach can be a normative enterprise. It can focus on engaging in a philosophical analysis enlightened by the differences or similarities in the regulation of rights, in order to propose concrete solutions for the regulation of a right. Third, a comparative law approach can combine both elements of the two previously mentioned approaches. It can aim at studying the sociopolitical frame that led to the emergence of legal rules and challenge them in the cases where it seems that there is some flagrant injustice in the application of rules upon concrete cases of human rights. It may aim to reach a "reflective equilibrium" between and the is and the ought. This means that it can engage in a study that can be articulated as a back and forth movement from the differences in the operation of legal rules to how they should be operating.
The paper discusses further the challenges that the researcher faces in her attempt to use these methodologies and how these challenges can be overcome. These challenges arise in the selection of cases that are appropriate for comparison, in assuring comparability. What is at stake is the question of commensurability. If what motivates a comparative law study is the search for principles of justice the researcher needs to persuade that her methodological approach serves her aim. Second, challenges emerge for the comparatist concerning the research question that she uses, her theoretical framework and her criteria of evaluation. Furthermore, these challenges concern the validity of the interpretative schemata that she refers to or that she creates in order to interpret the legal phenomena she is studying. These interpretative schemata may be defined by conscious and unconscious bias. To some extent it is impossible to the researcher to transcend the subjectivity of her perspective. Nevertheless, there is a moral obligation for the researcher to make an effort to transcend this bias. Interdisciplinary collaboration as well as collaboration with scholars whose background was formed in the foreign legal system under study can help transcend these challenges. Another concern for the comparativist is the danger of being trapped in the relativity of her background which would prevent her from thinking critically on the object of her study. The solution to the problem comes from the reflection on the just character of the rules that is implicit in any attempt to compare legal rules. The inherent normative dimension of the law can help transcend the circumstances that define the subjectivity of the researcher. The law as a normative discipline has its own constraints of justifiability. The researcher is led to transcend her conditioning in a context that provides to her a frame of evaluation and to think in abstracto about principles of justice that can be accepted intersubjectively. The comparatist who studies legal rules inevitably transcends her horizon and is led to think about the justness of the legal rules she is studying.
Keywords: Comparative Law, Rights, Jurisprudence, Legal Theory, Understanding, Hermeneutics, Commensurability, Social Sciences, Justifiability, Reflective Equilibrium, Gadamer, Habermas, Rawls
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