Comparative Law (LAW-619-001)
The first class will be on ZOOM (August 19, 2022).
The purpose of this course on comparative law is to explore the main methodological traditions as well as their practical implications in comparing different legal institutions in the United States, Europe, Latin America, Asia, Africa and the Middle East. The first part of this course addresses the methodological preferences present at the inception of the discipline of comparative law at the turn of the twentieth century. It addresses the classic distinction between civil law and common law and between continental Europe and Anglo-American legal systems.
The first part of the course enquires into the methodological debates among comparative lawyers and whether the function of comparative law is to create and maintain a framework for cultural difference and policy reform that has historically been in the interest of the West. In particular, it asks: What is the value of comparative law to the Rest with a post-colonial agenda in mind? How do we transform the methodological insights into practical applications? What is the agency of lawyers in creating new possibilities for economic development through legal reform? The course surveys different methodologies to understand what and why we compare different legal systems. Comparative lawyers used functionalism as an innovative method for comparing and understanding different legal systems achieving similar outcomes. More recently, the turn toward structuralism and cultural studies has put into question the functionalist method while obliging comparative lawyers to rethink critically their discipline. This course shows how critical comparisons are relevant to understand the globalization of legal thought by shifting our focus from the classic comparative law divide between civil law versus common law to questions of production and reception of legal thought, legal reasoning and ideology, borrowings and migrations or diffusions of legal ideas.
The second part of this course offers a number of case studies of comparative law with a particular focus on law and development. It explores several examples of legal reception and globalization of legal thought by analyzing particular reforms in the area of rule of law reform, criminal law reform and administrative, urban and private governance reform. This part offers also a number of law and development case studies on reproductive rights, comparative administrative and private law, including examples of land-use, property and anti-corruption reforms. The materials draw upon the law of the United States, as well as that of countries around the world such as Canada, Europe, South Africa, South American, Caribbean and India. The course concludes with general reflections on the purpose of comparing legal systems in the modern-day world when economic reform as well as equality and democracy are at stake.
Textbooks and Other Materials
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First Class Readings
1. What is Comparative Law and Development?
- Max Rheinstein, Comparative Law: Its Functions, Methods and Usages, 22 ARK. L. REV. 415 (1968)
- [EXCERPT] Mathias Reimann, Beyond National Systems: A Comparative Law for the International Age, in SCHLESINGER’S COMPARATIVE LAW (Ugo Mattei et al. eds., 7th ed. 2009)
Please read just one of these two articles
- John H. Merryman, Comparative Law & Social Change, AJCL (1977).
- [EXCERPT] Mathias Siems, Comparative Law and Development in Comparative Law Chapter 11, (2nd ed.2018)
Case Study on Judicial Styles (Discussion during the second part of SYNC class)
- Bernard Rudden, Courts and Codes in England, France and Soviet Russia, 10 LA. L. REV. 431 (1949)
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