Comparative Law as Comparative Jurisprudence - the Comparability of Legal Systems
25 Pages Posted: 16 Apr 2003
Date Written: March 2003
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.
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