Comparative Law as Comparative Jurisprudence - the Comparability of Legal Systems

25 Pages Posted: 16 Apr 2003

See all articles by Catherine Valcke

Catherine Valcke

University of Toronto - Faculty of Law

Date Written: March 2003

Abstract

In response to the "malaise" which has afflicted comparative law over the last few decades, William Ewald has proposed that we recast comparative law as comparative jurisprudence, that is, as "the comparative study of the intellectual conceptions that underlie the principal institutions of one or more foreign legal systems." However, Ewald stops short of defining "legal systems." Nor does he explain how such legal systems might be amenable to the kind of comparisons he suggests. This paper takes up these issues. Specifically, it argues that law as jurisprudence, the conception of law which underlies Ewald's proposal, unlike naturalist and positivist conceptions of law, entails a conception of the legal system as inherently comparable.

The minimal conditions for comparability are simultaneous plurality and unity. A conception of the legal system as comparable hence is a conception that is sufficiently broad to accommodate a plurality of legal systems, but not so broad as to preclude minimal unity among them. A naturalist conception of the legal system is too narrow: it accounts for unity, but not for plurality. A positivist conception instead is too broad: it accounts for plurality, but not for unity. A conception of the legal system under law as jurisprudence in contrast is neither too narrow nor too broad: it accounts for legal systems as plural, yet somewhat unified. As law as jurisprudence, unlike naturalism and positivism, thus entails a conception of the legal system as comparable, comparative law as comparative jurisprudence - comparative law per se - hence appears possible.

Suggested Citation

Valcke, Catherine, Comparative Law as Comparative Jurisprudence - the Comparability of Legal Systems (March 2003). Available at SSRN: https://ssrn.com/abstract=385861 or http://dx.doi.org/10.2139/ssrn.385861

Catherine Valcke (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
514-343-6111 Ext. 4094 (Phone)

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