Law and Political Economy in China: The Role of Law in Corporate Governance and Market Growth
The conventional premise for embracing law in the context of economic reform calls for a modern legal system as a prerequisite for economic development. The premise suggests that economic exchange between unfamiliar parties requires reliable and uniformly applicable norms and institutions, to protect the rights of economic participants and provide credible commitments for growth (secure contracts and property rights, specifically). Absent such a legal system, it is argued, investments will be discouraged and market development will dwindle.
Yet, important critiques of the premise show, China did not follow the same paradigm and challenges many of its underlying assumptions (Clarke, 2003; Ohnesorge, 2007; Upham, 2018, Yu ed., 2013). China achieved substantial growth and developed markets while preserving market control, state ownership, and relatively weak legal institutions.
This, of course, does not mean that China’s legal system is underdeveloped. The Party-state spent massive human resources and political capital (and real capital) to establish a voluminous number of sophisticated laws, regulations, and institutions. Yet, even today, it continues to govern markets by informal means and functional substitutes, while legal rights remain weakly secured. Not only have substitutions persisted even while the market grew strong, in fact they have been further reinforced in recent years.
Four decades of economic development in China are surrounded by this great puzzle. Consequently, skepticism about the importance of law in China is widespread. Popular opinion, practitioners, and academic studies by legal comparativists and China scholars across disciplines assess the role of law in China’s economic rise as a mere political instrument, a marginal governing tool, or simply window dressing.
“Law and Political Economy in China: the Role of Law in Corporate Governance and Market Growth” by Tamar Groswald Ozery (Cambridge University Press, 2023) calls to reevaluate this approach and proposes that the role of law in China’s economic development has been undervalued. Indeed, when one looks only to the rights-securing functions of law, a disregard for the role of law in supporting China’s growth becomes almost inevitable. Rather, the author argues, a renewed thinking is needed, one that takes a fuller account of the various functions of law and particularly its political functions.
Such rethinking is needed especially considering China’s intensifying push to “rule the country according to law”. This includes greater presence of law and legal institutions in governing markets, to better bend economic and political market participants to the law and increase their accountability. Such legal advancement is quite intriguing given that individual legal rights, even economic ones, are not fully secured. If economic law and institutions do not perform their rights-securing economic functions, how can we explain their massive rise? Even more intriguing is the parallel move in recent years to institutionalize and legalize substitutional mechanisms of political governance. Why would an authoritarian single-party regime turn to a “law-based governance” (yifa zhiguo) given that it can simply subvert its own laws (as the Chinese Communist Party is de-facto above the law) and easily revert to its path-dependent governance mechanisms? Do legal constructs contribute to China’s growth story in ways that are not contemplated by the traditional development and corporate governance thinking?
The book offers law & political economy as an alternative analytical framework through which to address China’s development puzzle and reassess the role of law in supporting growth.
This alternative framework analyzes the relationship between formal law and market development from the vantage point of political power dynamics. It reveals how law serves as an internal party-state instrument for allocating and directing political-economic powers, which then produce growth-supporting implications for market participants. The book’s primary methodology relies on textual legal analysis of a vast body of Chinese Communist Pary (CCP) policies, internal speeches, market laws and regulations (secondary and tertiary), and their legislative histories to reconstruct the role of law in China’s market development from 1978 to 2021.
The analysis highlights two intertwined functions of law – economic and political. Through this dual functionality of law, the law translates and secures political–economic shifts in an iterative process that shapes the incentives of political actors to support market economic activity. The law in China, therefore, supports market development on multiple levels, notwithstanding its slow-to-evolve, and at times limited, rights-oriented functions.
The suggested law & political economy framework is especially befitting China, where the legal system is, in fact, a “political-legal system” (zhengfa xitong) as is widely acknowledged by scholars in the field. And yet, the relations between law and politics receive little attention in writings about the Chinese market and the private (economic) law literature. Perhaps surprisingly, studies concerning Chinese economic law largely take the neutrality presumption that spread under liberal capitalism and is so commonly invoked in the economic analysis of law and the Law and Finance approach. Following such presumption, laws around the world are directed as politically detached, technocratic tools for increasing efficiencies and maximizing gain (Milhaupt and Pistor, 2008). Thus, while the Chinese public law sphere is traditionally more prone to “antagonistic contradictions” (the Maoist notion of duikangxing maodun), where the potential for social and political frictions brings direct political intervention to the fore and therefore produces rich scholarship that takes law & politics relations into account, private legal spheres, however, particularly market-related laws, are assumed to imbue more deference to neutral economic results.
As the political–economic fabric in China evolves and opens up for frictions, the neutrality presumption about economic laws requires closer scrutiny. The Party’s direct return to the market over the past decade, constructed through and by the law, should leave no doubt that politics, law, and economic development are deeply intertwined under the CCP’s rule. The challenge is to understand exactly how, and through that to open a door for a continuous reevaluation of the functions and various contributions of law to China’s growth story. This book aims to open that door.
The book employs two layers of analysis: a market development macro layer, and a corporate governance and capital market micro layer as a case study.
Part I delineates the conceptual and analytical frameworks underpinning the book. Chapter 1 explains the traditional framework that commonly guides thinking about the role of law in development and in financial markets specifically. Chapter 2 presents the difficulties with the traditional approach in the Chinese context and offers law & political economy as an alternative analytical framework.
Part II establishes the new framework by tracking the evolving role of law in China’s market reforms and identifying how the two functions of law – economic and political – have developed side by side, each supporting the other. Chapter by chapter, the legal configurations of political-power dynamics are examined. A three-stage shift in the allocation of market governance authorities within the Party-state’s system through the law, is unfolded:
Chapter 3 looks at the role of law during the Early Reform Era (Dec. 1978–1991), when the Party-state vested economic decision-making authorities with its local governments, giving them a relatively free rein to experiment with and administer economic activity by limiting law-making by central level authorities. Chapter 4 moves on to examine the subsequent Legal Modernization Era (ca. 1992–2009) – a golden age for legal reformers in China. During this era, market governance authorities were reconfigured and recentralized with the central state through a massive project of national-level institutional and legal reforms. This reconfiguration of powers via the legal system also set the foundation for what is known today as “China’s state capitalism”. Chapter 5 examines the current era, which I label the Legalized Politicization Era (2010–present). During this era, the consequences of state capitalism brought a new reconfiguration through law in two directions, intensifying the presence of the regulatory state in the market on the one hand, while shifting substantial market governance powers directly to the CCP itself, on the other.
Relying on these findings, Part III then applies the analytical framework of law & political economy at the micro level by delving deep into China’s corporate and capital market development puzzle as a case study.
Throughout Chapters 6-9, the book merges questions about the role of law in development with inquiries on the evolution of financial markets and corporate governance specifically. This Part of the book considers how law and political economic determinants entwine in shaping the business environment in which public firms operate. It demonstrates how the explanatory power of law & political economy can bring more clarity to China’s evolving corporate governance approach. Special attention is given to the politicization of corporate governance in the current era (Groswald Ozery, 2022), showing how the CCP advances its corporate governance capacities and its roles in governing markets more broadly, through the use of law.
The analysis illuminates how political-power shifts at each era of development resulted in the reconfiguration of the legal framework that governs firms, and how such reconfiguration, in turn, helped secure a new political economic equilibrium. These iterative dynamics also mobilized market participants (both economic and political) to develop and deploy various growth-promoting mechanisms in firms and in the market at large. Such mechanisms at times supported, at times impeded, and at times substituted for conventional corporate governance institutions.
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Taking an interdisciplinary analytical approach that weaves together law and development theories, political economy analysis, and expertise in corporate governance, the book offers new insights about the relationship between law, economic development, and politics in contemporary China. The book sheds a new comparative light on a long-standing debate about the role of law in economic development and about the possible varieties of growth-supporting governance mechanisms.
From Ancilla Legislatoris to Ancilla Juris: A Policy Brief on the Role of Comparative Law
It is beyond doubt that comparative law has a major significance for legal academia and practice. But what role does, and should, it play in detail? Legal academics as well as legal practitioners often understand comparative law as an “ancilla legislatoris,” that is, a subordinate “servant of the legislator” (Grundmann/Thiessen 2015): First, they claim that comparative research must serve legislation by producing findings useful for the process of amending old and creating new regulations de lege ferenda [I.]. Second, they subjugate comparative studies to the existing legislation regulating science and research de lege lata [II.]. My blog post, in contrast, will recommend both legislators and researchers to treat comparative law as an “ancilla juris,” that is, a “servant of the law” itself [III.].
I. One Objective: Ancilla Juris Instead of Ancilla Legislatoris
At first sight, it seems highly desirable for legislators to have comparative lawyers doing their legwork or even spadework. By researching the legal solutions in other countries and, ideally, their real-world implications, comparativists shall provide inspiration and insights to legislators. Indeed, comparative law can offer “useful lessons of how to [or not to] circumscribe claims to particular times and places, and how to study institutions that may interact with one another or serve as substitutes” (Linos 2018). In domestic legislation, such comparative advice merely offers an option of what to consider when drafting new or reforming old laws. In inter-, supra-, and multinational lawmaking and treatymaking, in contrast, it appears necessary and even natural to engage in legal comparisons—. Harmonizing national laws or drafting conventions that bind different nations requires mutually acceptable solutions and thus common ground between the countries involved. Therefore, for example, the EU resorts to legal comparisons—mostly between the laws of its 27 Member States—when creating supranational secondary legislation such as regulations and directives. Similarly, one single country’s—say, the United States’—legal and judicial cooperation with other countries should listen to comparative law, e.g., when drafting bi- or multilateral treaties. “[R]elevance to policymakers and practitioners” thus constitutes a “key goal for much of [comparative] legal research” (Linos 2018).
Consequently, so-called legislative comparative law (Zweigert/Kötz 1996), which focuses on the lex ferenda, traditionally has accounted for a fair share of legal comparisons (Donald 2008). In European academia, this phenomenon has often been interpreted as rendering comparative legal studies a mere “ancilla legislatoris” (Grundmann/Thiessen 2015). Such a conceptualization of comparative law as the “servant of the legislator” goes even further in other countries—e.g., in China, whose official ideology of Sinomarxism promotes the active transfer of foreign experiences (von Senger 1994). Sinomarxist theory demands Chinese law (as a research object, i.e., obiectum materiale) as well as legal studies (as a research discipline and method, i.e., obiectum formale) (see, Jestaedt 2007) to “adopt the others’ strengths to compensate their own [supposed] weaknesses” (“取长补短”). In this understanding, making foreign law and legal doctrine fruitful (or, some might say, exploitable) for the further development of China’s legal system becomes the ultimate purpose of comparing the law.
However, legislative comparative law concerned with the lex ferenda constitutes only one possible avenue for comparison. The much more common and important field in academia is so-called scientific-theoretical comparative law (Zweigert/Kötz 1996), which analyses the lex lata. Moreover, in legislative or in scientific-theoretical comparisons, comparative law should serve not the legislator but rather the law as such. In other words, comparative legal studies should always be understood as an “ancilla juris.”
This role as a “servant of the law” emanates from two considerations: First, serving the law means that (even legislative) comparative law yields relevance for much more areas, tasks, and institutions than legislation. Comparative insights are relevant not only when enacting and amending the law but also when interpreting or applying it. Put differently, they might be used not only by the legislative branch but also by the judicial branch, the executive branch, the legal profession, the parties to a lawsuit, and many more actors. Second, serving the law does not consign comparative legal academia to “servitude” under legal practice, i.e., under the abovementioned community of legal practitioners. Rather, serving merely signifies that comparative law provides them with “services.” Such services mostly consist in acts of knowledge production: Legal comparisons shall serve to better understand the law. For this cognitive and analytical purpose, comparative legal studies can and should also resort to knowledge that is not strictly legal in nature: on the one hand, to extrinsic aspects going beyond the horizon of positive legal stipulations; on the other hand, to theoretical considerations going above the imminent concerns of supposed practical necessities.
II. Two Obstacles: Under- and Overstating the Power of Comparative Law
When acting as an “ancilla juris,” there are many issues at stake for comparative legal studies (as a discipline and profession) as well as for comparative lawyers (as individual researchers). Two tendencies in legal academia and practice complicate the mission of serving the law and should thus be avoided:
1. Understating Comparative Law’s Potential
First, some comparative lawyers understate their own position and academic freedom. As supposed “servants” of the law, they argue that their comparative investigation process is bound to national law, particularly to the national regulations of scientific research. This argument would result in legislators dictating to comparative lawyers how to compare the law they enacted. However, its proponents overlook the difference between research in/within and research of/about a specific jurisdiction:
Obviously, legal researchers geographically located in a specific country are bound to respect that country’s laws and regulations—in a normative dimension. (Needless to say, this does not necessarily coincide with the factual dimension, i.e., does not mean that all academic jurists in fact do respect the relevant domestic legal rules. If one tried to conclude the latter factual statement from the former normative command, one would derive “is” from “ought” and thus commit a normative fallacy.) That the law demands obedience from the legal academy studying it can be observed in many different jurisdictions: For example, legal studies under German jurisdiction are required to adhere to the Basic Law (“Grundgesetz”), i.e., the German constitution (e.g., Böckenförde 1974; von Arnauld 2009), or at least to its basic principles of democracy, the rule of law, and human rights (e.g., Becker 2017). On Chinese soil, then, legal academics are actively and passively “reminded” to observe the censorship system (审查制度). Censors also request observance of domestic so-called “harmonization” rules from foreign science and scientists operating inside of China (see, Loubere/Ivan Franceschini 2018).
In contrast, the potential (!) justifications for these normative claims vanish as soon as the claims extend to mere non-domestic research about the respective country. Staying with the Sino-Western example: Chinese authorities increasingly try to apply their censorship rules also toward scientists that perform research about China but are located in other countries, such as France (e.g., Marsone 2020). Such extraterritorial claims must be rejected—at least in the realm of comparative studies. Otherwise, they would put researchers in an insolvable dilemma: Per definition, comparative law compares at least two legal orders. If we accepted the extraterritoriality of national regulations related to science, comparative lawyers would thus have to comply with the detailed rules of at least two jurisdictions. In many constellations, the details (though not necessarily the basics) of such domestic science-management stipulations vary heavily and even appear incompatible. For instance, if we subjugated comparative investigations between China and a German-speaking country to both national legal systems, these investigations would have to comply with expressly constitutionalist and liberal European regulations and explicitly anti-constitutionalist and illiberal Sinomarxism (e.g., Wang 2016; Gao 2012) at the same time—which is nothing less than impossible. The only solution to such a dilemma is rejecting the claims to extraterritoriality (extending to all details of our analysis) and instead seeking a compromise (limited to the basics of our research). Such a basic “least common denominator” between Chinese and German-speaking legal studies indeed remains possible because even between Sinomarxism and Euroliberalism, certain juristic methods and substantive concepts coincide and overlap, albeit merely formally or terminologically (see, Smith 2019).
2. Overstating Comparative Law’s Potential
Second, and in contrast, other comparative lawyers regularly overstate their own power—understood as politico-legal power and not as scientific knowledge-power (Foucault 1977). These jurists interpret the national law differently than the prevailing opinion and traditional doctrine—which is per se not a problem at all but rather a welcome sign of academic vitality and diversity. However, these comparativists draw their new interpretation of domestic law not from the domestic regulations as such (which follow their own rationale) but rather from foreign stipulations (which they compare the national regulation with). Yet, if we take the function of “ancilla juris” seriously, our comparative investigations, whether legislative or scientific-theoretical, should not try and change the law by themselves but rather support the institutions legally competent to do so. Indeed, there are various reasons for such a (supposed) self-limitation: From a legal theoretical perspective, law as well as legal studies are distinct from politics, including legal politics (Kelsen 2008). And from a rule of law (and potentially democratic) standpoint, legal academics must leave the task of changing the lex lata and enacting a new lex ferenda to the entities that the constitution has normatively designated (and, ideally, the constituency has democratically elected) for this task.
Under those premises, a common phenomenon in legal academia that prima vista seems uncontroversial or even beneficial can turn out to be problematic: hidden comparisons. This phenomenon occurs when legal investigations tacitly blur the boundaries between truly comparative research (typically between one’s own and a foreign legal system) and purely domestic analyses (either of one’s own or of a foreign legal system). In China, for example, it has been observed that “most legal scholarship in the post-Mao [era] is substantively comparative in some way, but very few scholars would consider themselves ‘comparative law scholars’ […], even as a secondary field. Much of this is simply due to neglect: few Chinese scholars would consider the use of foreign law as a reference point to be something that automatically falls under the methodological umbrella of ‘comparative law’—instead, it is how legal research is generally done” (Zhang 2019). Such hidden comparisons are common not only in Chinese legal studies but in many juristic traditions. But they become problematic in at least two constellations: First, as just mentioned, they can lead to interpreting national legal norms—in our example, Chinese regulations—in a certain manner that does not reflect domestic legal doctrine and thus the norms’ actual, positive legal content. Second, hidden comparisons might be used to smuggle doctrinal ideas and concepts or legal institutions and principles into national—in casu, Chinese—law that the latter does not recognize.
At first sight, we might feel tempted to welcome this integration of comparative considerations in domestic legal research, because it seems to increase the importance and relevance of our discipline. Some might even argue that, from a substantive perspective, this integration precisely constitutes our legal academic contribution to the evolution or “enlightenment” of national law (especially if we are discontent with that law’s current state). Nevertheless, and from a formal point of view, as scientists, we are obliged to disclose what we are doing—i.e., that we are comparing and thus transcending the national dimension—in order to guarantee the scientificity of our research. Otherwise, our project might do more harm than good to legal science, and possibly also to the law it shall serve: At least in the two constellations outlined above, comparative lawyers try to circumvent the legislators or even aim at silently replacing them. Consequently, instead of serving the law, they serve themselves. And instead of serving the law, they ignore it or even tacitly try to bend and alter it.
III. Three Recommendations: Valuing the Importance of Comparative Law
To sum up: Comparative law should strive for one objective—serving the law [cf. I.]—but may encounter two obstacles—understating or overstating its own power and freedom [cf. II.]. I recommend “law-makers” as well as “law-comparers” to manage these three dimensions by employing the following three policies:
First, comparative law must (be allowed to) serve the law and its better and deeper understanding. For this purpose, comparative studies need sufficient attention. Legal practitioners (legislators, courts, advocates, etc.) shall thus listen to legal academics (in casu, comparative legal researchers)—and vice versa. This dialogue will enable both types of actors to refute the all-too-common claims of “insurmountable rifts,” be it between different legal systems or between legal academia and practice. Regarding the former differences between legal orders and legal cultures, comparative law provides researchers as well as practitioners with arguments to refute the essentialist, ethnocentric, and (self-)Orientalist claim of peculiar “Chinese characteristics” of the P.R.C.’s legal system. Concerning the latter division between legal science and legal practice, comparative law scholars should strive to develop and employ so-called “practice theories.” Such theories combine scientific aspirations and practical needs because, in a dialectical process, practice can become the foundation of theory—and vice versa.
As a second recommendation, comparative law must not be subjugated (nor subjugate itself) to competing or contrarian legal requirements. Therefore, comparative studies need sufficient freedom. Research institutions and individual researchers should hence be allowed to perform research without burdening them with too many previously and centrally set aims. Although (or, some might say, precisely because) scientists analyze and compare the law without such concrete predetermined aims and thus in an open-ended manner, they do so with an overall purpose (see, Eser 1998). Their research is purposeful and meaningful as it produces and enhances knowledge about both other legal orders and their own legal system (see, Strathern 1988).
Third, comparative law must not (be forced to) disguise itself as purely domestic legal research. Not seldom, this problem is rooted in comparative jurist’s perception that they need to disguise what they are actually doing and love doing. One basic solution is simple: Political decisionmakers and science-managers should allocate sufficient funding explicitly for comparative research. Such funding needs not be limited to universities, because comparative research can also be performed in other institutions. Prime examples are independent centers like the ten law-related Max Planck Institutes in Germany and—soon not anymore (Zehnthöfer 2022)—Luxembourg or national state agencies such as the Swiss Institute of Comparative Law.
Taken together, these three recommendation can contribute to according comparative legal studies the position and status it deserves. They both demonstrate and ensure that for comparative law, serving the law as an “ancilla juris” is not a (self-)limitation but rather a (self-)liberation and empowerment.
References
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Grundmann, Stefan and Thiessen, Jan (2015), Recht und Sozialtheorie im Rechtsvergleich. Interdisziplinäres Denken in Rechtswissenschaft und -praxis, in Grundmann/Thiessen (eds.), Law in the Context of Disciplines: Interdisciplinary Approaches in Legal Academia and Practice, Tübingen: Mohr Siebeck, p. 1.
Jestaedt, Matthias (2007), „Öffentliches Recht“ als wissenschaftliche Disziplin, in Engel/Schön (eds.), Das Proprium der Rechtswissenschaft, Tübingen: Mohr Siebeck, p. 241.
Kelsen, Hans (2008), Reine Rechtslehre: Einleitung in die rechtswissenschaftliche Problematik, Studienausgabe der 1. Aufl. 1934 (Jestaedt ed.), Tübingen: Mohr Siebeck.
Linos, Katerina (2018), Methodological Guidance: How to Select and Develop Comparative International Law Case Studies, in: Roberts et al. (eds.), Comparative International Law, New York: Oxford University Press, p. 35.
Loubere, Nicholas and Franceschini, Ivan (2018), How the Chinese Censors Highlight Fundamental Flaws in Academic Publishing, 3 Made in China Journal 22.
von Senger, Harro (1994), Einführung in das chinesische Recht, München: C.H.Beck.
Smith, Ewan (2019), Socialist Law in Socialist East Asia (Book Review), 14 Asian Journal of Comparative Law 373.
Strathern, Marilyn (1988), The Gender of the Gift: Problems With Women and Problems With Society in Melanesia, Berkeley: University of California Press.
Wang, Tingyou (汪亭友) (2016), Western “Constitutionalism,” What Is Wrong [with You]? Analysis of the “Nuit debout” and the “Democracy Spring” Movements (西方“宪政民主”怎么了？——对“黑夜站立”“民主之春”运动的分析), Qiushi (求是) no. 13.
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Mindful of the World: “A Cosmopolitan Jurisprudence”
[Editor’s note: this is the final of four blog posts featuring the volume “A Cosmopolitan Jurisprudence: Essays in Memory of Patrick Glenn”, edited by Helge Dedek, Cambridge University Press, ASCL Studies in Comparative Law, 2022]
It has been a long journey from the first tentative ideas to the publication of this collection in memory of an esteemed colleague and beloved friend. The first working title for the collection, alluding to Patrick Glenn’s indefatigable idealism, was “Sustainable Diversity in Law” – borrowed from the original subtitle of his book Legal Traditions of the World that Glenn himself dropped in later editions. However, along the way one specific theme gained prevalence, namely that Glenn’s ideas went beyond targeting the traditional comparatists’ fixation with state law but ultimately sought a novel way of thinking about law writ large: the bold ambition to conceptualize law entirely through the experience of plurality and diversity.
For Glenn, “Comparative Law” was the inevitable disciplinary home to develop such a pluralistic vantage point, a mode of thought accessible to those who defy being intellectually circumscribed by only one national tradition, one methodological framework, one value system. Embracing the relativity of perspective would open the possibility of recognizing oneself in the Other and would pave the way to an understanding of “comparison” beyond traditional “comparative” analysis. The aim was thus eventually, as Glenn put it, a “cosmopolitan legal theory” that would hold up a mirror to conventional legal thought, and “play the role of a ‘critical theory’ in presenting alternatives to current forms of normativity, whatever their forms” [H.P. Glenn, Differential Cosmopolitanism, 7 Transn’l. L. Theory57, 69 (2016)].
This fundamental challenge to methodological nationalism might just be the most thought-provoking aspect of Glenn’s work, and potentially the most relevant to the many ongoing similar discourses across various disciplines. This ambition and audacity to think about law differently, in a genuinely “cosmopolitan” way, inspired the collection’s eventual title: “A Cosmopolitan Jurisprudence.”
In this context, (cosmopolitan) “jurisprudence” seemed the more fitting label than that of a “theory.” While we associate, in casual usage, “jurisprudence” with any kind of scholarly treatment of law, the semantics of prudence and prudentia are historically connected to a scholarship that is characterized by learnedness and judiciousness – the reigning paradigm of legal scholarship until it began to be replaced by scientia, science, as the paradigm for all university disciplines. In addition, prudentia, used to translate the Greek “phronesis,” has traditionally been tied in Western philosophy to forms of intuitive, practical wisdom, gained from experience [see e.g. D. Randall, The Prudential Public Sphere 44 Philosophy & Rhetoric 205 (2011)]. Glenn’s intellectual trajectory was that of someone trained in the law who felt compelled to step outside traditional disciplinary boundaries by the actual experience of diversity and otherness, experience gained as a comparatist and traveller of the world. Intellectually, he was an avid traveller as well: uniting shards and pieces from various works and disciplines into an original pluralist mosaic that made sense of this experience. It comes to mind that, as Ulf Hannerz [Cosmopolitans and Locals in World Culture, 7 Theory, Culture & Society237, 239 (1990)] once observed, “cosmopolitans should ideally be foxes rather than hedgehogs.”
The visceral appeal of such “phronetic wisdom” is probably one of the reasons why the metaphoric reference to art, especially the piece “Black Whole Conference” by Montreal artist Michel Le Broin, eventually took on such a prominent role in my own introductory chapter. Of course, as we all know, another aspect of this unconventional nature of Glenn’s work was that it was open to criticism on many fronts, and that critics at times were harsh in their judgment. It seems to me, however, that it is particularly this quality of triggering the urge to voice disagreement, this “irritating” quality that will keep fuelling important conversations and inspiring other unconventional ideas. Accordingly, the collection was never intended as a hagiography but as a respectful yet critical engagement with Glenn’s ideas – in other words, as the continuation of the kind of intellectually honest conversation that Glenn himself enjoyed so much in his lifetime [cf. A. Halpin, The Application of Bivalent Logic, and the Misapplication of Multivalent Logic to Law, in H.P. Glenn & L. Smitheds, Law and the New Logics 208 (2017)].
I believe, for example, that Glenn’s focus on the concept of “tradition” is an extremely valuable stimulus to further explore and take more seriously the discursive characteristics of “law”, shifting the perspective onto the historicity of the methodological nationalism in law itself – a move that allowed Glenn to speak, counter-intuitively perhaps, of the state itself as a tradition.
However, I find unconvincing that, in their anti-statist and anti-positivist thrust, Glenn’s ideas mostly tune out the dimension of law as power, as force, as violence. In Glenn, this is not just a matter of analysing “law” from a particular perspective that sheds light on its discursive nature in a way that positivistic or sanction-oriented theories of law will not. Rather, Glenn derives an odd normative twist from the analytical finding that each tradition is, essentially, communication: “communicative action” as such can navigate and overcome conflict. For Glenn, introducing the tradition-concept itself thus creates an epistemological framework for the (re-)conciliation of, and between, traditions. Traditions are, due to their communicative structure and nature, by definition “commensurable” and thus open to dialogue [on another aspect of this normative bend, cf. M. Krygier’s blog entry Thinking too well of traditions].
Yet in a global order characterized by a post-colonial hegemonic hierarchy, the challenge of (re-)conciliation presents itself specifically against the backdrop of a history of injustice and violence, and in the context of conditions of inequality in which recognition of the non-hegemonic tradition is never fully realized. The bias against acknowledging the role and presence of violence in all of legal discourse ultimately manifests itself in a lack of sensitivity towards the epistemic violence inevitably implied in the assumption of “commensurability.” That is at least the case as long as it is not acknowledged that the “common measures” upon which “commensurability” is predicated, (that is, the ‘universal’ language and the concepts that determine the framework of commensurability) typically are those imposed by the hegemonic tradition [see e.g. J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity 39 (1995)].
Going forward, a “cosmopolitan jurisprudence” (or even “cosmopolitan critical theory”) will have to acknowledge that certain non-Western, especially Indigenous traditions, completely elude Western imagination and verbalization. As Canadian Indigenous scholar Aaron Mills has suggested, an assumption not of universalizing commensurability but rather of radical incommensurability might be therefore the truest form of recognition [see A.J. Mills, Miinigowiziwin: All that Has Been Given for Living Well Together: One Vision of Anishinaabe Constitutionalism, 45 (2019)].
However, despite its flaws, Glenn’s “cosmopolitan jurisprudence” was based on the uncontestably right intuition: to necessity to challenge the methodological nationalism in law that is such a strange anachronism in our global age. Phronesis/prudentia, suggested another unconventional thinker concerned with breaking down boundaries between traditions [Thomas McEvilley, The Shape of Ancient Thought 609 (2002)], could also be translated as “mindfulness”:if Glenn’s jurisprudence has contributed, even just a little bit, to making us more mindful of this necessity, to making us jurists more mindful of the world, we are all better for it.
Thinking Too Well of Traditions
[Editor’s note: this is the third of four blog posts featuring the volume “A Cosmopolitan Jurisprudence: Essays in Memory of Patrick Glenn”, edited by Helge Dedek, Cambridge University Press, ASCL Studies in Comparative Law, 2022]
Often the words we use are at the same time commonplace and weightless; we are comfortable using them and they loosely, often usefully, direct the flow of verbal traffic one way or another along paths we and others can understand. But they commit us to little. ‘Tradition’ is commonly mentioned in that way: something to do with things handed down from the past, but not much more.
Sometimes, however, when taken up by a stringent thinker, the same words get content and depth; at their deepest they come both to embody a theory, or at least a considered view, and contribute in specific, even unsubstitutable, ways to larger theorising. Think Marx on class, or Weber on bureaucracy. In Patrick Glenn’s prolific and wide-ranging contributions to comparative law, ‘tradition’ becomes such a concept.
Glenn was dissatisfied with the standard taxonomic characterisations of law into systems, cultures, families, nation-states, etc. He emphasises the indispensable, ineradicable, normative presence of the past in law, and thus rejects temporally and otherwise parochial ‘time-slice’ characterisations of ‘legal systems’ or ‘cultures’ and such, which suggest that they all might have started yesterday or that it wouldn’t matter if they hadn’t. He is hostile also to post-Western-Enlightenment slightings of the traditional sources of form and content in societies and legal orders, modern as much as those relegated to benighted, custom-dominated, ‘pre-legal’, ‘traditional’, pasts, or presents in ‘less developed,’ usually southern, climes.
For Glenn, the traditionality of law is key, and he is surely right. In almost every legal ‘system,’ the maintenance of a normatively present past is attended to with a diligence matched only in institutionalised religions. This is no accident. In law, traditional inheritances are the unreflected-upon context and medium of reflection, imagination and action. What these present-pasts are made up of – statutes, interpretations, court judgments, the opinions of scholars – differs greatly among legal orders. Overarchingly, particular forms of what Clifford Geertz calls ‘legal sensibility’ also endure within traditions and differ, sometimes dramatically, between them. The pervasiveness of such pasts, both real and imagined, their architectonic significance in the present of law, can scarcely be exaggerated.
Analytically (and legally and sociologically), then, Glenn’s is a profound and enriching insight, and he is profoundly attached to it. But as often happens with iconoclastic enthusiasts, at times his fondness for his subject overreaches. For he attributes virtues to traditions, ontologically as it were, that are not always there or theirs.
Glenn sets a lot of store by a quite specific narrowing of what counts as legal tradition: it is past informationand nothing more. That is important because information is available to anyone, does not exclude others as ‘systems’ and ‘cultures’ do, is open for appropriation all over time and place. As Glenn writes, information ‘does not control legal practice. It is tolerant of argument … while allowing peaceful resolution of disputes,’ ‘tradition conceived as information has no borders’ ‘the flow of information is ultimately uncontrollable; closure is never complete.’ He introduced the attractive metaphor for legal tradition of a ‘bran-tub’; reach in and choose your prize.
But tradition is always more than mere information. Members of traditions never simply choose between the bits of information that come down to them. In a real sense, as Gadamer has written, we ‘belong to elements of tradition that reach us.’ For, beyond the information they transmit, traditions, particularly institutionalised ones like law, are managed by traditionally authorized guardians concerned that some things be in, some out; some normative, others just simple information; some information, others just noise. And if I am a judge in a legal tradition, or a citizen in search of a result, I hope the law is not random information. I want to be able to know it when I need to. Where things work as they should, many legal practices are designed to make that possible. Of course it’s not a simple matter, and there is always room for interpretation, but if it’s a lucky dip we’re in bad shape legally. And when the law is not as I believe it should be (for reasons traditions say a lot about), I or someone is likely to be involved in trying to ‘massage’ (Glenn’s term) the material to have it interpreted one way or another, implemented one way or another, taken more or less seriously as a normative element in their life-world. If all this sort of work is not happening to the ‘information’ in a tradition, you don’t have a tradition; just information. For imposed ways of handling (including ‘massaging’) traditional information are not just unavoidable ‘corruptions’ of traditions, which Glenn acknowledges. They are constitutive parts of their nature.
Tradition, then, is never ‘simple’ information. Being normative it is always ‘information plus’ and the ‘plus’ does a lot of work. That being the case Glenn’s beguiling images of free-flowing rivers or randomly assembled and chosen bits of information in a bran tub, which might make plausible Glenn’s contrasts between inherently borderless traditions and hermetically sealed systems and cultures, is overdone and does not support the congenial characterization he draws from them.
Nothing in the nature of traditions tells you how they will behave; it is as little contrary to their nature to be hostile to other traditions, or to sects and heretics within the great traditions as it is to be tolerant of them. As Glenn himself notes, ‘Tolerance is not easy, which may be why there is a tradition of intolerance.’ (Glenn, Legal Traditions of the World, n.5, 53). Indeed there is; indeed there are. Many, and their lives have been long. I doubt that even the most skilled massaging of the concept of tradition is likely to end that any time soon.
None of this undercuts the significance of Glenn’s contribution. We should acknowledge that law is typically founded on and in traditions, simply because that is a fact, and an important one. We can also learn much from his learned, bold, wide-ranging and bold application of the concept and exploration of the phenomena. I fear, however that to acknowledge these virtues will do little to advance the accommodations among traditions that Glenn admirably favours. Nor does it necessarily block them. They still have to be promoted on independent grounds, not because to act conflictually or exclusively or arrogantly in relation to other legal traditions is in some way to betray (or corrupt), or for that matter to honour, the very nature of legal tradition itself.
Nothing in the nature of traditions tells you how they will behave; it is as little contrary to their nature to be hostile to other traditions, or to sects and heretics within the great traditions as it is to be tolerant of them. As Glenn himself notes, ‘Tolerance is not easy, which may be why there is a tradition of intolerance.’ Indeed there is; indeed there are many, and their lives have been long. I doubt that even the most skilled massaging of the concept of tradition is likely to end that any time soon.
Thinking well of traditions
[Editor’s note: this is the second of four blog posts featuring the volume “A Cosmopolitan Jurisprudence: Essays in Memory of Patrick Glenn, edited by Helge Dedek, Cambridge University Press, ASCL Studies in Comparative Law, 2022]
The most controversial theoretical contribution to comparative law by the polymathic Patrick Glenn in his LegalTraditionsof theWorldwas his effort to get us to think well of tradition(s). For him, the key to tradition is the idea of information, that which is brought from the past to the present, in a particular social context. It can include stories, concepts, beliefs, facts, symbols, values, political theories, heuristics and, if not actual institutions, at least ideas about institutional objectives, design and significance. The variety of information captured will increase as the tradition increases in size, each generation capturing its own understanding of the tradition. The pool of information captured by the adherents of a particular tradition cannot be entirely controlled, but a tradition stays alive through massaging i.e.- by being called on selectively (the massage is the message?) Above all, however, for Glenn, legal traditions do, can and should respect each other. Elaborating this argument was part of a project of building what he called ‘sustainable diversity in law’, a necessity for the peaceful coexistence of different ideas and peoples.
Realising such an aspiration is increasingly urgent as so many groups are currently reacting to globalisation by (re) emphasising connections with the past and appealing to supposedly long-standing distinctive religious and national bonds and identities. But it begs a series of questions. How far can tradition help to facilitate necessary changes rather than stand in their way? What happens to those who challenge tradition? When do traditions in fact respect each other, when do they instead seek to predominate?
Glenn tells us that major traditions achieve complexity because of their proven ability to hold together mutually inconsistent sub-traditions. Butif it is intuitively plausible to think that the complexity of tradition makes necessary a tolerance of potentially conflicting ideas, at least some of the time, it is less obvious that the same applies to the relation between traditions. Glenn admits that a tradition can take specific measures to protect its underlying or basic elements, using means that range from a simple ethical obligation to remember, to instruments variously known as heresy, treason, or sedition. But he asserts nonetheless that the authority of tradition is persuasive only. It allows for dialogue and normative engagement, as opposed to hierarchical dominance.
Some of Glenn’s claims may depend more on definitional stops than on empirical findings. But if we are to make progress in assessing them (and further his admirable goals) we require more case studies of how in practice different traditions manage continuity and change, and the ways in which they deal with (other) internal and external challenges. One example of reconciling continuity and change under changing social circumstances is offered by the way the Jewish law tradition (one of those examined in detail by Glenn) revoked and/or reinterpreted the strict biblical rules about the cancellation of loans every seven years. The rabbis, following the suggestion of Hillel, crafted a loophole by introducing a document -the Pruzbul- that would accompany interest-free loans, stating that such loans were to be transferred to the courts. As the law of remission does not apply to loans within the public domain this ground-breaking institution benefited both borrowers and lenders. It meant that borrowers would still be able to access loans because lenders knew their money would be safe despite the arrival of Sabbatical year.
The issue- much fought over by different streams within Jewish tradition- is by what right Hillel sought to circumvent what appeared to be a clear Biblical prescription (one accompanied by a warning that people should not refrain from lending even if they knew they would not be repaid). The more conservative answer explains that, because of changes in where Jews were living at the time of Hillel’s ruling, the Biblical requirement to cancel debts was no longer binding. It was now only supported by Rabbinical authority and hence could be amended by that same authority. More, the change was intended to privilege the higher level-Biblical – necessity to ensure that loans continued to be forthcoming. More radical commentators tend instead to take Hillel’s action as an example of bold willingness to update tradition in the light of changing social needs. They treat his innovation as a purported precedent for similar bold interventions on other fronts which in their view are now crying out for reform. As for traditions being mutually respectful, for outside observers, the exact basis of Hillel’s action is less significant than for insiders. Depending on the starting points of rival traditions, they can be less than generous to this innovation – for example preferring to highlight the persistence of different rules about lending on interest to insiders as compared to outsiders. For some, Hillel’s creative skill in renewing the past in the present is characterised as Rabbinical casuistry in the service of proto capitalism.
Legal Monotheism and Its Discontents
[Editor’s note: this is the first of four blog posts featuring the volume “A Cosmopolitan Jurisprudence: Essays in Memory of Patrick Glenn, edited by Helge Dedek, Cambridge University Press, ASCL Studies in Comparative Law, 2022]
Patrick Glenn’s scholarship does not introduce a ‘concept of law’ or explicitly criticize the concepts of others. Yet, he trusts the findings of a long line of legal anthropologists (and a shorter one of comparative law scholars) showing that in non-Western traditions, there is no distinct line between legal and non-legal forms of normativity (Legal Traditions of the World: Sustainable Diversity in the Law, 5th edn, OUP 2014, 60–94, 98–129, 180–215, 287–315, 319–56). Yet, the method and tools Glenn relies on can be used to look into the Western legal traditions too.
In the West, political and legal theories have long been taking for granted the idea that law is the province of government and government recognized authorities, including the judiciary. They have concentrated on the processes and principles, by which the form and substance of official (State) law are determined, implemented, and enforced. By contrast, many non-official sites of legal production have always existed and still exist (outside and) inside the West. These sites produce rules that may flourish indifferent or in opposition to official law and take the settlement of disputes arising out of the application of those rules outside the ordinary circuits of adjudication. Even though the discussions about the relation between the latter rules (especially those developed by merchants) and official law is one of the most ancient debates of the law, in the last two hundred years the Western positivist attitude has been able to obscure and fence off the multifaceted dimensions of the legal experience from the spotlight of critical investigation, from law schools and from legal textbooks.
The low visibility of these unofficial legal sets in the mainstream debate, however, should not obscure thesignificant effects they can have on social order—and on the efficiency of the concerned markets and dispute-solving mechanisms. Indeed, there are many field studies conducted in different sectors of social life and business activities, showing how in those sectors unofficial law reveals itself as the controlling factor of public and private behaviors. Examples may be drawn from fields as disparate as family, religion, religion-related food, rural communities, the enforcement of commercial contracts surveyed in the local, national and global dimension, concerning e.g. the markets of cotton, diamonds, grain and feed, the online environment, the financial law (M. Bussani, Strangers in the Law: Lawyers’ Law and the Other Legal Dimensions, 40 Cardozo Law Review 3127, 3146 (2019)).
Thanks also to these field studies, in the last decades the unofficial dimension of the law has gained new scholarly traction. Law and society scholars inquire into the social structures that induce compliance, law and economics scholars examine non-State law rules and institutions that allow for efficient and desirable social results, law and psychology scholars scrutinize the motivations that ground loyalty to non-State and State laws, and all (should) profit from the long trodden path of legal anthropologists and from their findings on the cross-cultural features of social ordering, as well as from legal historians’ studies on how private and commercial law has been thriving for ages in the absence of constitutions, almighty legislatures, and State courts orderings.
The overall lesson we should learn from the above scholarship and field studies is that overlooking the sets of unofficial laws we leave behind us a piece of the real legal world that survived to our ignorance in the past and will outlive our current disregard. Unofficial law asks lawyers to ‘stop, look, and listen’ as they approach the boundary of the official legal system. What is enmeshed in unofficial laws are in fact the multi-faceted fabrics of our society, the different existing views of looking at ourselves and the others, the manifold ways of unfolding our loyalties, our identities, and our professional, social, and cultural selves. If we keep looking down on the legal offspring of all this, we miss a cognitive dimension of the law, whose loss, among other things, should urge one to define herself not as lawyer, judge, or legal scholar, but as State-law lawyer, State-law judge, State-law scholar, and nothing more. This is one of the fallouts the battle of definitions about “what is law” carries with itself – a battle Glenn wisely avoided. Searching, debating, and setting borders functional to institutional arrangements that need to keep clearly separated State law from the rest, has proved successful in the last two/three centuries and is a culturally legitimate attitude. The latter’s matrix should be disclosed, though. It is grounded on a series of (neither transcendental, nor immutable, but) historically construed notions, and the refusal to acknowledge it, acting as the ministers of a legal monotheism, reveals nothing but a path-dependent, all-Western-centric, and certainly profitable (also in view of preserving an intellectual and professional status quo) way of looking at the “law.”
Taking stock of the foregoing also explains why a pluralistic, interdisciplinary perspective on law is much needed in order to seize the ways the laws both reflect and structure human relations. Among many other things, Patrick Glenn taught us this. Such a perspective would call into question common views of official and unofficial law, connecting mainstream visions about law within the broader social contexts where laws and justice live, and unveiling the different kinds of loyalties that underlie and support the choices of official and unofficial law mechanisms and actors. To delve beyond conventional wisdom and to better understand the legal dimension through the cultural, social, and professional frameworks in which the laws operate and are embedded, would be both this perspective’s promise and challenge.
Rethinking Comparative Criminal Justice
Comparative law is no stranger to debates on globalization. Indeed, the complexity, diversity and often pluralistic nature of law in a globalized world is frequently raised in debates about the appropriate lens for legal comparisons, such as legal families, legal cultures or — the explicitly borderless — legal traditions (see Glenn, 2010). Writing recently in this blog Monateri (2022) identifies three main challenges for comparative law: ‘an increasingly blurred line between private and public law, the emergence of new global regulatory processes, and a shift from Eurocentrism’. For him, this requires both new methods ‘for comparing legal landscapes … shaped by new global sources of normativity outside the standard framework of national laws or of legal families’ and ‘a self-critical approach to comparative law’. Taking up these debates in the field of comparative criminal justice, a new Research Handbook of Comparative Criminal Justice published by Edward Elgar and edited by David Nelken and Claire Hamilton (available here), seeks to reexamine the theories, assumptions, values and methods of comparative criminal justice in light of the challenges and opportunities posed by globalisation.
Part I of the Handbook therefore takes a fresh look at the traditional objects of comparative inquiry, such as families of law and the systems of trial, through the lens of globalisation. The first three substantive chapters, for example, provide an interrogation of the inquisitorial/adversarial dichotomy and its relevance in a globalised world. Trends such as an increased emphasis on efficiency, cost-saving and the growth of ‘administratisation’ or trial avoidance mechanisms, raise important questions about global convergence and the demise of adversarialism. While, as Hodgson argues in Chapter 2, these pressures may play out differently in different procedural contexts, closer inspection reveals a similar response to the demands of managerial efficiency: ‘a facsimile of justice in which the safeguards of prosecutorial review and judicial oversight are increasingly absent’. Linked with this are the implications of a new global language of criminal justice, namely, ‘algorithmic justice’, also discussed in Chapter 22: are we witnessing the replacement of old ideas about crime and criminality with new, epistemically different, sources of knowledge?
Speaking to Monateri’s theme of enhanced global regulation, Part II of the Handbook turns the spotlight on the unwanted or unexpected consequences of global ‘flows’ of people and goods, what may be termed the ‘dark side’ of globalisation. What is striking is that so many of these crimes or social problems – cybercrime, genocide, ‘bordering’ practices and so on – push the boundaries of comparative criminal justice as an academic subject. Another challenge is that laws and standards are often transmitted across diffuse and complex transnational legal and regulatory spaces.A good example is counter-terrorism law (discussed in Chapter 10) where laws and standards span UNSC resolutions, European counter-terrorism laws, bilateral agreements, national counter-terrorism laws, and the recommendations of the Financial Action Task Force (FATF). Scholars of comparative counter-terrorism must therefore navigate these different sites of governance, both public and private, and their complex interrelationships, while also recognising the enduring influence of the nation state as a source of ordering (Nelken, 2011). As with law more broadly, if comparative criminal justice is to play a role in exploring these more transgressive fields of study and how these play out in different contexts it will inevitably have to assume a broader, more interdisciplinary and more flexible character.
Finally, as Monateri rightly acknowledges, the shift in subject matter should be accompanied by a more self-critical, reflexive approach, probing the values of the comparative project. As he points out, too often so-called ‘objective’ classifications and typologies display ‘a high degree of subjectivity under a veil of alleged objectivism’. This view is echoed by David Nelken in Part III of the book: ‘academics … also have agendas – and the highlighting of similarities or differences is often instrumental to these.’ This part provides insights into the universal, or supposedly universal, remedies for the problems posed by globalisation such as human rights, global standards and social indicators such as the United Nation’s Sustainability Development Goals. As well as discussing the nexus with policy, the chapters demonstrate how the values built into such projects, particularly those viewed as spreading ‘best practices’ or imposing common standards, may need more scrutiny than they often get. Nelken’s chapter in particular raises questions about the comparative exercise itself and how it is implicated in the ‘policing’ and ‘self-policing’ effects produced by various indicators. Perhaps an even greater challenge discussed by Cunneen in Chapter 20 is the effort to decolonize comparative criminal justice, with calls to reconsider the fixity of the nation state, to reassess units of time and measurement, and to rethink established methodologies. Linked to this have been calls for ‘epistemic justice’ and the decolonisation of knowledge and university curricula, including law and comparative law. While these represent formidable challenges, they are more likely to intensify than diminish. Indeed, they may well form part of the ‘profound rethinking’ of comparative law called for by Monateri to make sense of the new world order.
References
Glenn, P. (2010) Legal Traditions of the World: Sustainable Diversity in Law. Oxford: Oxford University Press. 4th ed.
Legal Cases for Kids: An Introduction to Law for young curious minds
The present book constitutes, to our knowledge, the first attempt to introduce young minds to legal concepts and reasoning in three different languages (English, French and Greek) through the narration of civil law and common law court decisions or incidents/stories viewed from a legal perspective and written in simplified words. In particular, this book introduces mainly older elementary school students, teenagers and young adults to the study of law by narrating for the most part, in simplified words, the facts and conclusions of selected Canadian, United Kingdom and United States court decisions as well as important maritime incidents viewed from a legal standpoint. Different areas of law are touched upon by this book such as tort law (civil law, common law), maritime law and aboriginal law.
The book starts with the story of the ancient Greek goddess of justice, Themis. It explains the need for justice to be impartial and to hear both parties. It continues with several tort cases from Québec, Canada (Ginn c. Sisson, civil law) the United Kingdom (Donoghue v. Stevenson), common law Canada (Arnold v. Teno) that introduce the reader to tort concepts such as ‘fault’ or the ‘reasonable person’ or child. These cases were specifically chosen to appeal to young minds since they involve children or very descriptive incidents (such as the snail in the bottle case).
Aboriginal law and constitutional law are treated with the narration of the Canadian residential schools and reconciliation efforts. This is an important topic that teaches youth about the need to respect other cultures and a person’s right to education, family, freedom of expression and freedom of choice. Young minds can easily relate to this story as it talks about schools – albeit of a specific kind.
These first five stories are followed by five maritime cases/incidents such as the Prestige, this known oil tanker carrying 77 000 tons of fuel oil that sank off the coast of Galicia in Spain. The story introduces young minds to marine environmental issues and the work of the International Maritime Organisation and international funds present in this area.
The famous Titanic maritime disaster is also narrated from a legal standpoint with the objective of introducing youth to the issues posed in the area of maritime safety. General average, this ancient institution of maritime law is also examined through the narration of the 2012 Hanjin Osaka maritime incident.
The piracy of the vessel Maersk Alabama that also became a Hollywood movie is another story of this book narrated in order to present this serious maritime issue to young minds. Finally, a story inspired by the American case Tessler Bros. (B.C.) Ltd v. Italpacific Line is also narrated in order to introduce youth to basic concepts in the area of maritime transport of goods such as the bills of lading and the need for international laws and uniformity to govern international ocean maritime transport of goods. All the mentioned maritime stories talk briefly about the advent of autonomous ships presenting some issues they raise.
Each of the ten stories of the book is accompanied by illustrations – made by the University of Ottawa talented law students – in order to help the young readers understand their content. The objective of the book is to familiarize mostly young minds with some basic concepts used in the legal field. This may lead youth around the world to further develop an interest for legal studies.
The author of the book, Marel Katsivela, is an Associate Professor of law at the faculty of law of the University of Ottawa (programme de common law en français) in Canada. One of her goals in her professional and personal life is to familiarise youth with basic legal concepts in her respective fields of specialisation: tort law, extracontractual liability (common law and civil law) and maritime law. The author believes in the respect of all legal traditions and languages and tries to reflect this in the book that treats several languages and legal systems.
A Pluralist Theory of Constitutional Justice
Assessing Liberal Democracy in Times of Rising Populism and Illiberalism
Description
In recent years, liberal constitutionalism has come under sharp attack. Globalization has caused huge disparities in wealth, identity-based alienation triggered by mass migration, and accompanying erosions of democracy. Illiberal populists have also adapted the framework of liberal institutionalism, masking their aim to subvert its core values. These developments bring the links between justice and the constitution to the fore, particularly concerning distributive justice in its three dimensions of material redistribution, identitarian recognition, and democratic representation.
A Pluralist Theory of Constitutional Justice by Michel Rosenfeld (Oxford University Press 2022) provides a systematic account of the central role of distributive justice in the normative legitimation of liberal constitutions. The requirements of distributive justice are highly contested, and constitutions are susceptible to influencing those they govern. By drawing on Rawls’ insight that distributive justice calls for “constitutional essentials”, Rosenfeld advances the thesis that liberal constitutions must incorporate certain “justice essentials” which figure as a minimum that ought to be met regardless of prevailing disagreements over competing conceptions of the good. All liberal constitutions may vary on how they seek to harmonize the ethnos andthe demos. The justice essentials require aiming at an equilibrium between ethnos and demos along three essential dimensions: that of the universal (or of the constitutional unit’s community of communities); that of the singular as typified by the individual who adheres to the relevant constitutional pact; and the plural as configured by the interplay between constitutionally relevant competing collective units spreading through the polity. Moreover, the aim of distributive justice in this latter context is to achieve proportionate accommodation among the constitutional unit’s universal, singular, and plural interests.
The book is divided into three parts. Part one examines the current legal, economic, political, and ideological developments that pose challenges to the normative viability of liberal constitutionalism. It consists of two chapters and it examines the current conditions wrought by the thrust of globalization and the counterthrust of balkanization. Chapter 1 details the level of fracture and alienation that have surged as by-products of globalization. Law increasingly looms as abstract, distant, elusive, and oppressive, as a plurality of transnational legal regimes overlap with domestic ones. In addition, a repoliticization of religion spilling over to other strongly invested identitarian units, such as ethnic or linguistic communities with exclusivist tendencies has rendered politics increasingly tribal. Chapter 2 concentrates on the novel and unsettling disruptions to patterns of distributive justice regarding wealth and other material burdens and benefits attributable to globalization and associated developments. The disruptions in question pose vexing new challenges to constitutions relating to their obligations to secure material redistributions consistent with the justice essentials.
Part two offers a rereading of philosophical and jurisprudential literature that sheds crucial light on the relationship between constitution and justice. Chapter 3 examines the vexing confrontation between law as an abstract self-referential system and solidarity among those subjected to it in terms of the historical encounter between Kelsen and Freud. Chapter 4 concentrates on those who, unlike Kelsen, regard law as ultimately reducible or largely absorbable into politics or economics. Relating to politics, it contrasts Carl Schmitt to CLS; and relating to economics, Marx to Posner. Chapter 5 reassesses the Kantian tradition steeped in the decoupling of justice from the good, by concentrating on three contemporary thinkers: Rawls and Habermas who are within the Kantian tradition, and Dworkin who shares Rawls’ liberal egalitarianism. Finally, Chapter 6 juxtaposes Derrida’s concept of irreducible singularity leading to the impossibility of justice to Agamben’s breakdown of law into a coupling of a glorifying spectacle derived from the remnants of a Christian political theology with the technicalities of administration.
Part three makes the case for a thoroughly pluralistic approach in the quest for the justice essentials. Part two’s analysis makes it clear that neither approaches from the top, namely from the universal, nor from the bottom, namely from the singular, can satisfactorily carve out a common ground that ought to garner consensus on the justice essentials. Part three seeks to demonstrate that starting from the middle, namely from the plural, affords the best means to achieve the justice essentials amidst widespread disagreements regarding the substantive requirements of distributive justice. Chapter 7 sets out the case for comprehensive pluralism which, in contrast to Isaiah Berlin’s value pluralism, is pluralistic all the way up and all the way down. Chapter 8 focuses on certain fixed minima that constitute a perquisite to maximizing plurality and that carve out a workable conception of the justice essentials. The book concludes by stressing that pluralist justice essentials, while at times difficult to achieve, provide the best hope for the preservation of liberal constitutionalism and against legitimation of illiberal and populist appropriations of the latter’s tools for anti-pluralist purposes.
The Structures of Comparative Law: Metaphors and Methods
Comparative law is the crossroads of extremely varied methodologies and tendencies. In order to orient oneself in this wide-ranging field, it is necessary to employ a profound critical approach aimed at highlighting the merits and the risks of each trend. Generally, it is usual to distinguish comparative law methods into a micro-comparatist and a macro-comparatist level. Micro-comparison being a close approach to particular rules – like formation of contracts or transfer of property – and macro-comparison representing a more distant approach when an entire legal system is confronted with another. We may then say that if functionalism has operated mainly in the first field, the structuralist method has dominated the second type of approach (Van Hoecke 2015).
In the field of human sciences, it is possible to define the structuralist method as the reading key that allows focusing on and bringing out those hidden structures that inhabit social practices (Samuel 2014: 81-82). These elements cooperate in the construction of a cultural framework which characterizes a particular type of experience (religious, juridical, political, philosophical, literary). Structuralism is thus supposed to be the most powerful tool available to highlight those regularities that would otherwise be unnoticed.
One of the ways in which the structuralist method developed in legal analysis was through the classification and distinction of legal experiences into families or, indeed, systems. In this kind of practice, legal norms become the first step in drawing analogies and similarities between principles and concepts.
Obviously, the act of separating and distinguishing as well as the consequent decision of creating legal families acts as an essential element in the practice of classification. In this sense, legal families are not something that exists in nature but constitute the product of the interpreter’s choice. The identification of structures, and in particular of hidden structures, depends on the theory of the observer and her interpretation of a legal tradition. Thus structuralism, more often than not, displays a high degree of subjectivity under a veil of alleged objectivism.
In this sense, comparative law has experienced a strong inner tension that often challenged its basic assumptions. On the one hand, there is an appeal to objective structural classification, and on the other, the obvious need for an interpretation to make sense of the complexity of legal traditions.
From this standpoint, it is also important to notice the inherent tension that exists between structures and history. A structural approach implies that certain elements that define a legal system endure over time. Identifying some element as a structural component of a tradition presupposes that it is something stable and fixed. But legal traditions evolve and the same elements, such as contract in the field of private law, or presidential prerogatives in the domain of constitutional law, assume meanings and configurations which were unexpected, changing the nature of the institution within the legal process. In this sense, what we call a legal tradition has no fixed characteristics. Structures are always in flux. And structures require interpretation to be identified (Legrand 1996).
Underlying the structuralist approach is also the idea that the components of every legal system cannot be analyzed independently of one another, but must be observed and evaluated in light of their mutual relationships. In this sense, the law is not simply the sum of the specific elements in which every legal framework is expressed (rights, duties, punishments, etc.) but the product of an organic connection of all these elements together.
The philosophical hermeneutic turn of the second half of the twentieth century marked a profound change in social studies, dismantling the easy convictions of the structuralist method and by illuminating, on the contrary, the multiplicity of conceptual schemes that, from time to time, are employed in the construction of scientific theories.
This, of course, should not diminish the achievements of the structuralist approach; important achievements in comparative law that we still use today in our understanding of legal phenomena come directly from this method. On the contrary, it is necessary to verify to what extent it is possible to build structures and families in light of the profound changes that globalization has imprinted on the categories and concepts of law.
In this sense, what awaits the comparatist is a profound rethinking of both the functionalist and the structuralist methods, as well as a different configuration of practices and approaches that would lead to the acceptance of a methodological pluralism inside the discipline. The analysis of structures and of the relationships between them becomes a significant first step for achieving an effective improvement in comparative legal theories.
James Gordley has critically analyzed the premises of the functionalist method. (Gordley 2012: 107). One premise concerns the relationship between concept and function. As such, Gordley’s analysis also serves as a basis for discussion of the structural method. Rules, which have functions or purposes, are framed in terms of concepts. The premise of functionalists is that, unless concepts are themselves defined in terms of the purposes that the rules serve, they become doctrinal abstractions that are obstacles to understanding the rules.
The mistake, then, according to Gordley has been to go to one of two extremes: to try to understand rules in terms of concepts and without regard to purposes, or to try to understand rules in terms of purposes without relating these purposes to the concepts with which the rules are framed.
The first mistake was made by the nineteenth-century conceptualists. They defined contract in terms of the will of the parties without asking why the will of the parties should be binding. In the early twentieth century, some jurists swung to the opposite extreme. Instead of defining the concepts with which a rule was framed in terms of the purposes the rule was to serve, they thought of the appeal to purposes as a trump card that could be played whenever the application of the rule seemed unsatisfactory. The purposes they had in mind were often not the purposes a specific rule was supposed to serve, but the purposes of the legal order as a whole.
As Gordley highlights, a second difficulty of the functional method in law concerns exactly what we mean by function or purpose.
In biology or engineering, function means the end served by an organ, or a part of a machine. An end which accounts for its characteristics and its own contribution to the functioning of the larger structure of which it is a part: the organism, or the machine. But the function or purpose of a rule of law is not like that of an organ or a machine part. Legal rules can be adopted and preserved by people who are not altogether unconscious of their purpose, like an animal or plant, nor fully conscious of their purpose, like an engineer. Biology and engineering are then imperfect models to describe legal action even if they are constantly employed as metaphors in legal theory.
As Michaels has noted, one version of functionalism in law, which he calls adaptive, is modelled exactly on evolutionary biology. Rules are adopted and survive, not because their purposes are understood even dimly by those who adopt or preserve them, but because the rules survived in competition with rules that failed to serve those purposes as well (Michaels 2006: 339).
Another version of functionalism in law, which Michaels calls instrumental, is modeled on engineering. This is referred to as “social engineering”. Like the engineer, the instrumentalist begins by knowing the functions or purposes that he wants an institution to achieve. He then devises rules or interpretations to serve these purposes using skills like those of an engineer.
Moreover as Max Radin had already noted, as long as the function of an institution may be multifarious and also serve alternative purposes, and the outcome depends on a reconstruction of the function, this can result in “pure subjectivism”. Interpreting the function of a norm is not so different from interpreting the norm itself, only with less constraints given by the resistance of the text to interpretation (Radin 1930).
We may also add another consideration, that, from the perspective of comparative law, functionalism presupposes that legal systems all face the same problems, even if they attempt to solve these problems by quite different means. We can compare the function of different institutions only if we suppose that these different institutions deal with the same problems. Gordley’s conclusion is that the functionalist method works in law when different legal systems actually do confront the same problems, but it need not presume that they always do so.
From the standpoint of methods, Sebastien McEvoy has proposed conceptual research on a) the descriptive; and b) the purposive categories of comparative law. (McEvoy 2012). Here, descriptive comparison merely means something like “bringing together” or “relating”, for instance English and French law, present and past law, law and linguistics, law and economics, and so on. Purposive categories are meant to explain similarities or differences so that the scholar can search for causal connections, evaluate or criticize solutions and the way they are reached. Comparison should lead, in speculative research, to an explanation of the similarities and differences and, in applied research, to their critical evaluation and to proposals for changes, in view, for instance, of the harmonization or unification of laws.
This categorization provides the coordinates to locate research in comparative law. It also includes legal history, law and sociology, law and literature, and so on. comparative law thus defined is a source of arguments both for and against the harmonization and unification of the law. It also can be used as a source of arguments against a systematic theory of law. The diversity that comparative law reveals, while calling for explanatory theories, can be the object of contemplation, but also of critical evaluation.
What is needed, instead, is a reappraisal of these classic attitudes to unpack the way they have created a legal geography of the world which still serves today for projects of governance and reforms, and which still dominates the imagination of the legal scholar (Samuel and Glanert 2021).
Comparative law has been historically used to define, or better, to construct and transform legal identities. Globalization, worldwide financial reforms, and China’s emergence as a potential global power have given rise to a regulatory landscape that is complex, diversified, and at times fragmented. This new world order is challenging the conventional methodologies of comparative law (Chen 2021).
In particular three core dichotomies in global finance – private vs. public, global vs. local, and West vs. East – have been called into question. A major theme in the globalization of legal relationships is the emergence of new sources of normativity, including supranational ones such as the EU, the WTO, and the World Bank. Moreover, China is assuming the role of a new non-Western source of normativity in international financial markets. In light of these developments, the question Kelly Chen raises is, how should comparisons be made in legal landscapes composed of supranational, global, and transnational norm-setters and pluralistic regulatory orders?
In this regard, she argues that mainstream comparative law falls somewhat short. For a long time, it focused on the positive law of nation states, especially in the field of private law. Financial law, shaped by globalization and an intricate interplay of private and public law, requires particular comparative techniques and skills. She also argues that financial law could serve as a central case for the methodological debates in comparative law in the twenty-first century. She rightly observes that the variety of comparative inquiries calls for methodological approaches that are flexible, but that a certain core of methodology would be needed.
Globalization poses three main challenges to comparative law: an increasingly blurred line between private and public law, the emergence of new global regulatory processes, and a shift from Eurocentrism. New methods are thus needed for comparing legal landscapes that are shaped by new global sources of normativity outside the standard framework of national laws or of legal families. It is not only a matter of convergence or divergence of legal systems, but one of new landscapes of the law emerging from untraditional processes of lawmaking.
These challenges do require a self-critical approach to comparative law. The comparatist should be aware of underlying biases that might exist, in the West as well as in the East, when comparing regulatory systems of different cultures, and new regulatory systems that transcend traditional legal cultures. As Chen clearly states in terms of the global financial system, only comparative studies can generate in-depth analysis of why certain similarities and differences might exist between various financial regulatory frameworks, which is of vital importance for developing legal solutions to collective concerns in international financial markets.
A critical revision of the way in which legal families have been built trying to uncover and underline the purposive, non-neutral projects behind classifications of world legal traditions becomes crucial. The map of the legal world that emerged constitutes an essential element of the representation of the world legal order and for projects of governance at the global level.
References
Chen, Kelly (2021), “Comparative Law and the Financial Markets in the 21th Century”, in Lindskog, S. et al. (eds.), Festschrift to Jan Kleineman, Stockholm: Jure.
Gordley, James (2012), “The Functional Method”, in Pier Giuseppe Monateri (ed.), Methods of Comparative Law, Cheltenham: Edward Elgar, p. 107.
Legrand, Pierre (1996), “European Legal Systems Are Not Converging” 45 Int’l & Comp. L.Q. 52.
McEvoy, Sebastian (2012), “Descriptive and Purposive Categories of Comparative Law”, in Pier Giuseppe Monateri (ed.), Methods of Comparative Law, Cheltenham: Edward Elgar, p. 144.
Michaels, Ralf (2006), “The Functional Method of Comparative Law”, in Mathias Reimann & Reinhard Zimmermann (eds.) The Oxford Handbook of Comparative Law, 2nd ed., Oxford: Oxford University Press, p. 339.
Radin, Max (1930), “Statutory Interpretation” 43 Harv. L. Rev. 863.
Samuel, Geoffrey (2014), An Introduction to Comparative Law: Theory and Method, Oxford: Hart Publishing.
Samuel, Geoffrey and Glanert, Simone (2021), Rethinking Comparative Law, Cheltenham: Edward Elgar.
Van Hoecke, Mark (2015) “Methodology of Comparative Legal Research”, in Law and Method, Boom: Boom Juridische Uitgevers, p. 1.
