The volume Cities in Federal Constitutional Theory edited by Erika Arban, which came out recently with Oxford University Press, originates in the rising importance of cities. Cities emerged in recent decades as powerful engines of development, innovation, business relations, but also as cultural and educational centres that provide essential services to citizens. They attract people from various socio-economic, cultural, ethnic, linguistic, and religious backgrounds. They are hotbeds of progressive agendas. But while scholarship in the social sciences has extensively explored the multifaceted urban reality through different epistemological lenses, in constitutional law cities as independent subjects of theorisation remain, with a few exceptions, largely neglected. There is no solid theoretical foundation about their role in constitutional theory yet. This is even more apparent in federalism, a field dominated – as pointed out by Hirschl – by state-sized units and constitutional structures and doctrines conceived at the emergence of the modern state.
Against this backdrop, the book offers a theoretical account of cities as novel units of analysis in constitutional law and federalism with contributions authored by prominent theorists who have been pioneer thinkers in this field. The volume is structured in two parts. Part I sketches the conceptual framework of the book, by offering an overview of federalism, local governments and subsidiarity. Part II focuses on the status of cities as neglected constitutional players. The common thread linking all chapters is that they introduce the city as a constitutional unit of analysis, and address the relationship between cities, federalism and localism.
Specifically, in Chapter 1, Arban retraces the intellectual history of federalism as a constitutional principle and delves into the historical treatment (or lack thereof) of cities as federal units. This leads to a broader discussion, continued throughout the book, on whether cities have the required features to become separate federated entities, independent from the local governments of which they are usually part.
In Chapter 2, Saunders and Arban focus on the constitutional position of local governments in federal systems. They identify how they contribute to desirable federal properties but also the challenges in formalising a constitutional role for them. The chapter then suggests the concept of ‘partnership’ with other levels of government, governed by principles of comity, solidarity, subsidiarity and equivalence.
In Chapter 3, Cahill and O’Sullivan examine four types of justifications for increasing city autonomy: (i) the consistency argument; (ii) the expertise argument; (iii) the stake-holding argument; and (iv) the distinctiveness argument. They then test the extent to which these arguments track with four models of subsidiarity, a principle often invoked to justify enhanced city autonomy: (i) subsidiarity-as-federalism; (ii) subsidiarity-as-efficiency; (iii) subsidiarity-as-democracy; and (iv) subsidiarity-as-respect-for-distinctiveness.
In Chapter 4, Hirschl explores the significance of the federal/unitary distinction in determining the constitutional status of cities. He identifies the Global North/Global South division as more significant in such an assessment. He also investigates what national constitutions say about the urban/rural divide. Federal constitutions are no more likely to address such divide than the constitutions of unitary states, he notes. This implies that the preoccupation of federal constitutional theory with traditional subnational units may lead to conceptual rigidity and institutional path dependence in addressing problems of urbanisation. Hirschl also suggests that whether federalism is favourable or unfavourable to cities is auxiliary to other considerations such as the Global North/South distinction, constitutional ‘newness’ or malleability, and concerted political will to constitutionally strengthen cities.
In Chapter 5, Briffault delves into the ‘new’ doctrine of pre-emption in US federalism to reflect upon the apparent conflict between the theory of federalism (whose values are better advanced at city level) and formal federalism (in which the states are the main units). In US federalism, a conflict has emerged between cities and their states, with some cities pursuing progressive agendas and state governments rejecting them at state level, thus pre-empting progressive city action. Among other things, this highlights the failure of US federalism to recognize cities apart from their states, underscoring its commitment to states rather than cities. Beyond the US example, the chapter reflects upon issues of global relevance, such as the relationship between federalism, localism and the city, and whether federalism is bad for cities.
In Chapter 6, Kong puts forth a particular version of republican theory that justifies the constitutional entrenchment of a division of powers between territorially defined jurisdictions. He contends that cities and their residents have interests and characteristics that can be understood in terms of such republican theory. Focusing on Canada, Kong posits that the Canadian constitution should be amended to entrench the status of cities. He shows how such entrenchment might serve republican ends, offering policy prescriptions for achieving entrenchment. The chapter contributes to a globally-relevant theoretical debate on whether federations should constitutionally embed cities.
In Chapter 7, Partlett suggests that the diffusion of powers intrinsic in federalism can help generate a more effective criminal justice system. Federal states are grounded on the idea that decentralization yields important advantages, but then federations ignore such advantages when reforming criminal justice systems. Partlett contends that empowering cities can introduce the benefits of federalism to criminal law reform. In particular, urban accountability mechanisms—many of which already exist—provide cities with tools for understanding, debating, and holding accountable the discretionary decision-making of police and prosecutors. The chapter addresses the theoretical relationship between federalism, cities and subsidiarity, with the insight that federalism is not necessarily bad for cities.
In Chapter 8, Nelson discusses legal mechanisms that could help cities better face environmental issues. The adoption of modern constitutional environmental rights provisions speaks to the magnitude of contemporary environmental threats. However, the centrality of cities in causing and experiencing environmental threats remain substantively unaddressed by constitutional scholars. The chapter applies an environmental lens to address key questions such as whether constitutions should recognize cities, and what recognition they should seek to accomplish. By focusing on environmental issues, the chapter contributes to the theoretical debate on how cities could be better equipped to deal with pressing contemporary challenges.
In Chapter 9, Petkova examines the tension between the traditional anonymity of city life and the ‘datafication’ of cities. She suggests that the rising economic and political power of cosmopolitan, data-rich cities calls for new understandings of federalism in a digital age. By looking at a range of North American and European examples, the chapter explores how the link between privacy and big cities translates into both a normative commitment to diversity and varying legal privacy protections. The chapter also debates how cities could be better equipped to deal with pressing contemporary challenges.
Finally, in Chapter 10, Schragger considers the mismatch between cities’ increasing economic, political, and sociological importance and their relative lack of status in constitutional theory. He contemplates ways in which cities could be empowered. This lays the groundwork for the broader argument that state-based federalism is bad for cities. The ‘old’ federalism is based on the theory that sub-national governments are limited in their policy choices by the threat of capital flight, and presumed weak and ineffectual cities. A ‘new’ federalism would recognize the central role of cities in an urban-based political and economic order and provide them powers commensurate with that role.
Freedom of Expression: the Revolutionary Roots of American and French Legal Thought
ASCL blog post
The book “Freedom of Expression: The Revolutionary Roots of American and French Legal Thought” (Cambridge University Press, ASCL Studies in Comparative Law, 2022) by Ioanna Tourkochoriti discusses the difference in the protection of freedom of expression in France and the United States. It compares French and American law on freedom of expression and suggests reasons why two legal systems founded upon similar philosophical and political background, the European Enlightenment, use state coercion differently to regulate a liberty at the core of the Enlightenment. In the United States, the legal protection of freedom of speech trumps the protection of other values, a sign of American exceptionalism. By contrast, in France limitations to freedom of expression are legitimate in order to protect other competing values. Some examples discussed in the book are hate speech, headscarf bans, political campaign funding.
Scholars in the US have proposed various interpretations on why this legal system protects speech so strictly. Some scholars discuss the emergence of a public consciousness for protecting free speech as having occurred after the end of the First World War. Others associate the emergence of the free speech doctrine with the Civil Rights movement. Some others have most recently associated it with the class war and the compromise between various social and political actors that emerged in the 20th century around the New Deal. This book complements these theories by arguing that the developments in the United States in the middle of the 20th century became possible due to a conception of the role of the government dominant during the Founding Era. These theories do not assist our understanding of why from a comparative perspective the United States has arrived at protecting speech more rigidly than other democracies which had to handle similar conflicts between political and social interests. It is a profound tradition on the role of the government and a narrative about the meaning of liberty that the American Supreme Court expressed in the 1960s when it issued its important decisions protecting speech. When government intervention in the economy became acceptable in the United States, the spirit of distrust towards the government dominant during the founding era found expression in the protection of freedom of expression. The book discusses the progressive-era scholars’ ideas on freedom of speech and shows that they won over to the extent that they resonated with the distrust towards the government dominant during the founding era.
The book argues that we can understand the divergence in the balancing of freedom of speech and other values in reference to the broader historical, social and philosophical context where jurists operate. We can trace the difference back to the two revolutionary traditions. The book is a study in comparative political and constitutional theory analyzing how theories of government were read and understood in France and the United States at the time of the founding of the two democracies. It also takes into account how these ideas evolved through the centuries.
If we approach the topic of freedom of expression from the perspective of comparative philosophy of history and legal philosophy, three important concepts are at stake. The concept of government, the concept of republicanism and the concept of natural rights. First, what is at stake is a profound difference in the understanding of the role of the government, on the imaginary level. In the United States, it is rarely legitimate for the government to intervene as the regulator of interpersonal respect for harm caused by speech. Second, the subtle nuances in the understanding of republicanism between the two systems are also relevant. In the US, the common good is defined in reference to the need to protect negative liberties. The dominant conception is that the political sphere is instrumental to the private sphere. In France, negative liberties are protected only to the extent that they are compatible with the common good. The common good is something qualitatively different. The quality of being a citizen is primary. The Rights of Man make sense only as Rights of the Citizen. Third, another important concept which is relevant to this discussion is the concept of natural rights. Natural rights discourse emerged in America shortly before the Declaration of Independence to delegitimize attempts by the British Parliament to enact legislation limiting the negative liberties of the people in the colonies. In France, the debates among the participants in the National Assembly during the Revolution indicate that they saw rights as natural because they also saw society as natural also. They saw society as having the mission to help the citizens realise their rights. These considerations are relevant to the legitimacy of the government to define the content and the limits of freedom of expression.
The purpose of this analysis in comparative legal philosophy is to encourage reflection on the proper limits to freedom of expression. The US may be overprotecting freedom of speech in some respects and France may be underprotecting the same freedom. Understanding the ideologies behind the emergence of a legal regime protecting speech does not mean accepting historical determinism. It is possible to think critically about just criteria for limiting speech. Principles and rules elaborated in the past to meet concrete socio-political needs may not be relevant today to address contemporary concerns related to limiting rights. The book engages with contemporary debates on hate speech, the protection of privacy, headscarf bans and political campaign funding and proposes criteria for government intervention to limit expression or not in these cases.
Adjudicating Revolution: Courts and Constitutional Change
Edward Elgar has published Adjudicating Revolution: Courts and Constitutional Change by Richard S. Kay and Joel Colon-Rios. The book is a comparative study of eight jurisdictions in which courts have been called on to render judgments on the legality of a revolutionary regime, one that has established itself in violation of governing constitutional rules.
In its introductory chapter (which the publisher has made available online, https://www.elgaronline.com/download/pdf/book/9781788971331/book-part-9781788971331-6.xml), the book sets out the paradoxical nature of such litigation. In ordinary discourse, the act of revolution, by definition displaces the authority of prior law. What law then are courts supposed to apply in adjudicating the revolution’s legality? Still, as the authors demonstrate, the decisions in several jurisdictions have coalesced around a few common doctrines. These include the judicial recognition of de facto governments, an approach apparently motivated by the need to maintain some level of public order. The same considerations underlie judgments that accord legal status to acts on the basis of social “necessity.” A final “law” of revolutionary change focuses on the existence of conditions demonstrating that the underlying assumptions of a legal system have undergone a fundamental and permanent alteration. Several of the courts confronting such a claim have relied on the theoretical work of Hans Kelsen. They undertake an examination of whether or not a jurisdiction’s Basic Norm has been replaced. This usually boils down to an evaluation of the extent to which the new government has been firmly established and whether its policy choices have been effective.
These doctrinal devices have been frequently employed by courts in cases where individuals have challenged the acts of revolutionary governments. The exact way in which they have been used differs depending on the historical, social and legal context in the particular jurisdiction involved. The remaining eight chapters each consist of an intensive examination of judicial actions in a particular regime that had undergone or was undergoing revolutionary change. In two of the situations studied, the Confederate States and the Rhodesian Republic, the law-breaking state’s institutions were short lived. In the former, the prior legal system, that of the United States, was restored in the rebellious southern states. In the latter, a brief transitional restoration of British colonial authority was followed by the inauguration of a new legal system based on universal suffrage.
In another chapter, that dealing with Spain and Catalonia, the “revolution” that was the subject of judicial scrutiny was still a hypothetical one. In these three situations, it may have been relatively easier for courts to evaluate the revolutionary movement against the rules of the constitutional state against which it had been launched since, at the time of decision, that legal state, at least in some form, was still up and functioning. When the Judicial Committee of the Privy Council was confronted with a situation in which the rebellious Rhodesian government was in full control of the territory in Africa, it was still able to resist the conclusion that a successful revolution had taken place by noting that the legal government of the United Kingdom (of which, of course, the Privy Council was itself an agency) was “taking steps to regain control and it is impossible to predict with certainty whether or not it will succeed.” When this judgment failed to move the rebellious government, however, things looked different to the courts on the ground in Rhodesia, who finally acknowledged that a new de jure state had been successfully established. The Constitutional Court of Spain, when adjudicating the legality of a hypothetical independent Catalonian state, may well have seen itself as in a similar position as the Privy Council in the Rhodesia case. That Court sat in Madrid and again, it was a part of a legal system that was effective and fully functioning. Strict legality according to the Spanish legal system must have seemed to be the natural, if not the inevitable course.
The other five chapters, examine instances of post-revolutionary adjudication in Argentina, Colombia, Grenada, Peru and Fiji. They deal with cases in which the courts were confronted with a rather different situation. In each the new revolutionary governments were, to various extents, successfully governing the respective territories. In such cases, judges may rationally decide that application of the law of the ousted state would be an exercise in irrelevance. They have, therefore, usually called on the doctrines of necessity or de facto government to provide a justification for recognizing the reality of the political situation while, at the same time, clothing the new regime with legal or at least legalistic authority. While the basic frameworks of these doctrines are the same in all the cases studies, their application both at the time of revolution and in the period following it exhibit different characteristics depending among other things on prevailing attitudes towards the previous government and attachment to “the rule of law.” In addition to a close analysis of the judicial decision each chapter follows the subsequent events in each jurisdiction and how the judicial intervention influenced – or failed to influence—the constitutional system.
Rodolfo Sacco: the professor, the partisan, the man
The news of Rodolfo Sacco’s death on March 21, 2022, has grieved the entire academic community of comparativists and beyond. Without a doubt, he was a giant in all senses. Professor Sacco was born in 1923 in the small town of Fossano, Cuneo (northern Italy), where he lived gracefully until his teen years.
A natural inclination for history moved him to pursue a career in medieval studies, but he finally enrolled in law due to family pressures. In law school, a young Sacco was introduced to the intricacies of legal epistemology. Unfortunately, as the dark years of fascism in Italy rose, he had to set aside his studies to join the resistance at the Val Chisone, being a commander of the first “independent” alpine division. Prof. Sacco was later able to resume and complete his studies at the University of Turin, writing a thesis on the Concept of the Interpretation of the Law [Giappichelli, Turin, 1947], explaining that hermeneutic tools are just simple ideas that pre-exist in the interpreter’s spirit when confronting the legislative declaration.
Sacco’s work rejected the extreme Italian dogmatism in analyzing private law issues by resorting to extrinsic fields. His intellectual curiosity nourished a wide array of interests to understand how the connection between history, linguistics, and anthropology could enlighten his understanding of the law. Indeed, Professor Sacco frequently called himself a legal anthropologist. He extensively wrote on comparative (and Italian) contract law, African private law, systemology, and comparative methodology. His frontier studies started in 1959 when he published a monograph on unjust enrichment, L’arrichimento Ottenuto Mediante Fatto Ingiusto, [Utet, Turin, 1959, 238 p.] applying the comparative method to show how European countries attributed different labels to the same widely accepted norm. This study also evidenced convergence and exposed those amorphous syntactic features of the law that are crucial for constructing the legal system and tradition–the cryptotype.
Sacco’s then investigated the legal system of socialist countries and explored the African continent. His time spent as Dean at Mogadishu ignited his interest in legal ethnology, publishing the Introduzione al Diritto Privato Somalo [Introduction to Somali Private Law, Giappichelli, Turin, 1973, 191 p.] while expanding his field research to Zambia and Morocco until 1975. All this background paved the way for his cornerstone treatise Il Contratto [Utet, Turin, 1975], interpreting Italian contract law through the lenses of functional analysis.
From the 1970s onward, Professor Sacco devoted his studies to the Common Law tradition, focusing on the comparative method. In his view, this method was indispensable for jurists but needed proper guidance, requiring its insertion as a core subject of law. In 1979, a course on the comparative method and legal epistemology was born with the book Introduzione al Diritto Comparato [Introduction to Comparative Law, Giappichelli, Turin, 1980, 199 p.] translated into six languages. Years later, in the 1980s, the newly established Faculty of Law at the University of Trento appointed Sacco to its scientific committee to provide robust comparative imprinting to the J.D. program. While in Trento, Sacco also drafted the cultural and legal manifest: the Tesidi Trento[VCVA1] [Trento’s Thesis, Authors: F. Castro, P. Cendon, A. Frignani, A. Gambaro, M. Guadagni, A. Guarnieri, P.G. Monateri and R. Sacco, July 3, 1987] addressing the significance of comparative law embedded in the law curricula.
Inspired by the vision of Mauro Cappelletti to write in English to communicate with the world, he then published his seminal work, Legal Formants: A Dynamic Approach to Comparative law (in two installments). Sacco’s theoretical foundation, the formants, the elements that constitute a country’s “living law” was essential in developing the Common Core of European Private Law–a project with the scope of discovering the best solution to legal problems across European countries with a neutral approach. Later in his career, this retrospective and diachronic approach conducted him to further explore cryptotypes with the Supernatural and the Law and Mute Law, exploring societies without jurists and eliciting norms when there is no dispositive law in appearance.
Professor Sacco was Dean of the University of Pavia School of Law and the Somali National University in Mogadishu. He also joined the Law schools of the University of Trieste and Pavia as a faculty member. Finally, he served as a Professor of Law at the University of Turin until his retirement, later becoming Emeritus. While at Turin, his dedication to Comparative Law allowed him to teach Comparative Private Law, Socialists Countries Legal Systems, African Law, and Anthropology of the Law. Always committed to education, Professor Sacco taught summer courses at the Faculté International de Droit Comparé, first at Luxembourg–substituting Luigi (Gino) Gorla, another Italian figure of Comparative Law–then at Strasbourg for thirty years, a régulier.
Professor Sacco has received several awards, including the Valore Militare Medal and the Medaglia d’Oro della Liberazione for his service as partisan fighting fascism. Furthermore, he received several honorary degrees from the Universities of Paris 2, Geneva, Toulon, and McGill.
As a towering figure in comparative law, Professor Sacco’s leadership brought him several appointments. He was president of the Italian hub of the Association Henri Capitant, the International Association of Legal Sciences–UNESCO, the Associazione Italiana di Diritto Comparato, president and founder of the Italian Society for Comparative Law Research (SIRD), member of the Société de Législation Comparée, the Accademia Nazionale dei Lincei of Rome, the Accademia delle Scienze of Turin, the International Academy of Comparative Law, Académie des Sciences Morales, and the Academia Europaea.
Rodolfo Sacco will be remembered as a sophisticated scholar studying private law issues and the comparative method with the extravagance that distinguished him. But, in his case, this extravagance rarely generates distrust and always instills consensus.
New Context, Enduring Questions: Online Speech Regulation
When confronted with the vexing issues surrounding online speech regulation, “plus ça change” might be a tempting response for comparativists who have studied free speech before the advent of social media, including in the context of comparative hate speech regulation. Deep skepticism toward speech regulation remains the prevailing American position, based on the contemporary domestic understanding of free speech. Faced with legislative interventions elsewhere, such as the German Netzwerkdurchsetzungsgesetz (NetzDG), a reflexive reaction is merely to reiterate criticism of speech regulation, including prohibitions of hate speech. But continuing the old dispute over whether to regulate speech in the first place is unhelpful in fashioning or evaluating new regulatory regimes, and obstructs deeper theoretical concerns raised by online speech.
In my new Article, “Regulating Speech Online: Free Speech Values in Constitutional Frames,” forthcoming in the Washington University Law Review, I argue that contemporary U.S. legal discourse on online speech regulation has developed two crucial blindspots. First, in focusing on the domestic understanding of free speech, it doubles down on an outlier position in comparative speech regulation. Second, the domestic literature heavily emphasizes the marketplace of ideas, supplanting other theories of free speech protection. Accordingly, there are two major objections to online speech regulation. The first objection contends that only the contemporary American understanding of free speech, framed by First Amendment doctrine and with a strong emphasis on the marketplace of ideas, is sufficiently speech protective. But there is neither a single justification for speech protection nor one single American speech tradition. In addition to the marketplace of ideas, there are theories of autonomy and democratic self-governance with deep roots in American free speech thought. These alternative speech traditions likely provide a more useful lens for comparative dialogue. The second objection, essentially a slippery slope-concern, focuses on regulation originating in democratic regimes that is then appropriated by nondemocratic regimes to nondemocratic ends. This seems especially troubling because current First Amendment doctrine places great emphasis on content-neutrality. Thus, speech regulation cannot distinguish between democratic and nondemocratic contexts and content. Connecting speech protection back to its role in democracy addresses both objections. But the combined narrative of free speech near-absolutism and the marketplace theory of speech protection make a fruitful comparative dialogue difficult.
Focusing on shared normative concerns underlying online speech protection and animating speech regulation would be more productive. This does not mean transplanting European-style speech regulation. Rather, normative engagement likely would lead to a more nuanced discussion around online speech regulation within the currently existing constitutional frames. It would acknowledge the normative convergence that is occurring outside of the constitutional framework in the United States, where private actors drive developments, with the values underlying constitutional frameworks in Europe. And as private platforms’ decisions become increasingly important for democratic public discourse, platforms themselves may learn from constitutional systems that have monitored the boundaries of political discourse all along.
Online speech is neither necessarily democracy-enhancing nor does it promote the discovery of truth in the online marketplace of ideas. To the contrary, unregulated online speech challenges democratic self-government in novel ways. Extremist content and propaganda online have become pressing concerns in the United States. The attack on the Capitol on January 6, 2021, is a particularly jarring example. And the shocking events of that day seem to have opened the door for renewed comparative engagement with enduring questions of speech regulation. Two themes in particular emerged in connection with these events that potentially unsettle long-standing constitutional assumptions in the United States.
First, the rigidity of the state action doctrine was gradually questioned—in historical perspective, not an entirely foreign concept to free speech jurisprudence in the United States. State regulation and private governance mechanisms equally ought to seek to protect democratic public discourse to enable democratic self-governance. The irony, of course, is that in the United States, the democracy-securing function online is in the hands of private companies. Absence of the state from speech regulation, on the theory that this protects democracy, thus results in a democratic deficit. Elsewhere, this phenomenon may be addressed by the horizontal application of fundamental rights.
Second, the theme of “militant democracy” emerged, including in the opinion pages of U.S. newspapers. Considering certain speech outside the bounds of public discourse in order to protect democracy, is explicitly part of the constitutional framework elsewhere. The German Basic Law, for example, goes further than protecting free speech subject to a limitations clause. It also imposes a regime of “militant democracy” (wehrhafte Demokratie). Perhaps better translated as “defensive” democracy, militant democracy is democratic self-defense. Among other elements, the Basic Law creates a constitutional requirement to guard against certain forms of propaganda and hate speech. The militant democracy framework has been interpreted by the Federal Constitutional Court in various contexts, including that of neo-Nazi demonstrations. Here, too, the Federal Constitutional Court has an eye to preserving a generally speech protective regime subject to certain limitations. This does not mean that NetzDG is constitutionally required. But this type of law is consistent with the larger approach to protect democratic public discourse and defend democracy itself.
Current First Amendment doctrine would not permit such democratic self-defense. Whereas the marketplace theory of speech protection would counsel in favor of counterspeech, democratic self-government theory would likely counsel in favor of content moderation. But while the marketplace is increasingly unable to stem speech that threatens democracy, concerns about undemocratic speech suppression collide with calls for democracy-enabling speech regulation.
Both of these concepts, the horizontal application of constitutional rights and militant democracy, are well-established in other constitutional democracies. As domestic legal discourse becomes increasingly interested in them, valuable lessons can be learned from other countries’ experiences. And while these concepts tend to be studied in isolation, viewing them in tandem opens novel perspectives, particularly as applied to the complex problems surrounding speech on social media platforms.
Featured Scholarship in Comparative Law
Marel Katsivela, Responsabilité délictuelle et responsabilité extracontractuelle au Canada. Une étude de droit comparé, Montréal, Éditions Themis, 2021.
The present book constitutes, to our knowledge, the first attempt of a detailed comparative analysis of various themes regarding tort liability (common law) and extra-contractual liability for personal acts (civil law-Québec) in Canada. The book is mainly written in French – only some of the cases in the book are reproduced in English. A comparative study of this kind has no real limits as to the subjects to be treated. Those chosen for this book are the tort of negligence and its elements (duty of care, standard of care, factual causation, causal proximity, injury), certain intentional torts and their defenses (common law) and the personal extra-contractual liability (the classic triptych of fault, causation and injury in article 1457 of the Civil Code of Quebec) and its defenses (Québec civil law). Each subject is studied in common law and in civil law on the basis of statutes and / or case law / precedent and doctrine and is accompanied by a comparative analysis.
In comparing the fragmented duty of care (Chapter 1) regarding the tort of negligence and its corresponding concept at civil law (general duty of care) the book analyses in more detail both concepts and their importance for each legal tradition in Canada.
Regarding the standard of care (chapter 2) the book describes the principles governing the (breach of the) standard of care (tort of negligence – common law) and the fault (extra-contractual liability – liability for personal acts – civil law – article 1457 CcQ). More specifically, the study focuses on the reasonable person and his conduct in the two legal traditions of Canada. The author tries to determine the degree of convergence of the applicable rules in this area. The research of civil law and common law sources of law unveils a remarkable convergence of these rules as well as differences.
Causation (chapter 3) is a common concern in common law and in civil law in the area of the tort of negligence (common law) and extra-contractual personal liability (civil law) in Canada. The book undertakes a comparative analysis of this concept and identifies the similarities, differences and level of convergence of the rules governing it. Even if there are approximations to be made regarding the applicable rules governing causation in common law and in civil law, differences do not lack. The convergence of applicable rules is only present in part in this area.
Likewise, the author seeks to identify similarities and differences that govern this concept of injury (Chapter 4) in the context of extracontractual liability resulting from one’s personal acts under Quebec civil law and the common law tort of negligence in Canada. While the applicable rules in this area only partially converge, the legal concerns remain by and large similar. This is quite a remarkable area of law from a comparative law perspective.
The book finally compares the defenses (Chapter 5, 6) of the extra-contractual liability for personal acts in Quebec civil law with those of the tort of negligence and intentional torts at common law in Canada in two separate chapters. In doing so, it seeks to identify the similarities and differences in the applicable rules in the two Canadian legal cultures. The comparative study reveals that the intentional torts/tort of negligence defenses at common law find an equivalent in extracontractual liability for personal acts in civil law and vice versa. In addition, these defenses / corresponding concepts often present conceptual similarities but also differences. This demonstrates the presence of similar concerns and a certain degree of convergence of the applicable rules of the two Canadian legal traditions.
The similarities and differences in treatment identified regarding the subjects examined in this book, demonstrate that the convergence of the applicable rules is present but that it remains relative and dependent on the particular issue being addressed. This relative convergence should not be seen as a weakness of the law applicable in tort and extracontractual liability in Canada. On the contrary, it constitutes a flagrant proof to what extent the two Canadian legal cultures with equal value at the national level can deal with the same questions sometimes in a similar way and sometimes differently while respecting the foundations and values that govern them.
As this book is the first work of its kind and the first book written by the author, its content will be improved and enriched over the years. It has been a considerable challenge and such an enriching experience to examine in more detail the mentioned areas of law and compare them. The author believes in the respect of both legal traditions and tries to reflect this in the book. It seems that the way forward for Canadian law needs to take into account both legal cultures in further converging applicable principles….or not!
Colonial India and the History of Modern Jurisprudence
Assaf Likhovski
Histories of jurisprudence and legal thought in the nineteenth and early twentieth centuries are focused on developments that occurred in Europe and North America. At that time, European powers ruled much of the non-western world, but the assumption of most intellectual historians of modern law is that nothing interesting happened outside the West.
More than a quarter of a century ago, while working on the history of legal thought and legal education in British-ruled Palestine, I came across files stored in the UK National Archives in London that dealt with the legal education system of British India. I knew something about the history of legal education institutions in the UK and the US, but I did not know anything about the history of the Indian system of legal education. Going over the files, I discovered that British officials in nineteenth century India created a large academic system (larger than the one that existed in the UK at the time). I also discovered that the institutional and intellectual history of this system has not been thoroughly explored in the scholarly literature.
At the time, my research focused only on the history of law and legal thought in Mandatory Palestine, and I did not pursue the matter, hoping that someone else would explore it. A few years ago, I decided to revisit the Indian materials, focusing specifically on the nature of jurisprudential theories which were taught in India during the period of British rule. I knew that in other territories of the British Empire, such as Egypt and Palestine, there were interesting jurisprudential developments that occurred as a result of the encounter of western legal theories with the legal and political reality of these territories, and I was interested in finding out whether this was also the case in colonial India.
In 2017, I spent several months in libraries such as the British Library and the Library of the School of Oriental and African Studies in London, exploring the Indian sources. I discovered many jurisprudential works written in India during the British period. Some of these works were written by English lawyers who taught law in India. Other works were produced by local Indian scholars. Many of the dusty volumes that I discovered still had uncut pages. Nobody, it seems, opened them since they were deposited in the libraries approximately a hundred years ago. I, however, found these works, and their forgotten authors, fascinating.
Specifically, I discovered three unique aspects that characterized many of these works. First, the gap between English theories and Indian legal realities led some Indian authors to question key Western notions about the nature of law (such as the definition of law suggested by legal philosopher John Austin that law was the command of a sovereign). Second, some of the works produced in India were more influenced by state-of-the-art Continental and American legal theories (such as early twentieth century sociological jurisprudence) than the equivalent English works, which were far more intellectually insular. Sometimes this was due to the fact that the authors of these works had some Continental training, and sometimes the non-English influence reflected a wider anticolonial nationalist move away from English culture. Finally, the influence of Indian nationalism also led some Indian legal scholars to create a distinctive genre of jurisprudential works: Texts that used modern Western jurisprudential theories to describe the main features of Hindu (and, to a lesser extent, also Islamic) law.
These aspects of Indian jurisprudential works, I argue in the article that I wrote based on my research entitled A Colonial Legal Laboratory? Jurisprudential Innovation in British India, illustrate a broader phenomenon: the fact that legal scholars in imperial peripheries such as India were not always passive receivers of ideas produced at the center of empires, but in some cases created works containing interesting jurisprudential insights. The notion that India was a “legal laboratory” in which legal scholars experimented with new ideas has already been discussed in the literature, largely based on examples taken from the fields of legislation (the codification of English law in nineteenth-century India) or forensic science. My article explored the extent to which India was also a site of jurisprudential innovation.
India was not unique in this respect. Similar developments occurred elsewhere in the British Empire. I already mentioned British-ruled Egypt and Mandatory Palestine, but there were other British territories (such as Hong Kong) where the British established academic institutions which taught law, and where legal scholars sought to reconcile English theories with the local legal reality. Indeed, preliminary investigations made since I completed my article show that the features that I identified in Indian jurisprudential works can also be found in works produced in non-western territories outside the British Empire, such as China and Japan, in the late nineteenth and early twentieth centuries.
I am now working on a project that analyzes and compares the history of legal thought in India, Mandatory Palestine, and Egypt. I hope that once this project is completed, it will contribute to the creation of a truly global history of modern jurisprudence, one that pays attention not just to Western thinkers and their ideas, but also to the way in which these ideas spread around the globe in the last two centuries, and the ways in which non-Western thinkers used these ideas in the study of their own indigenous legal systems.
Hyper-legalism and Obfuscation: How States Evade Their Obligations Towards Refugees
Daniel Ghezelbash
The 1951 UN Convention Relating to the Status of Refugees creates certain obligations for states in relation to protecting refugees. These protections were agreed to by the international community in the aftermath of World War II in response to the failure of governments around the world to provide refuge to those fleeing Nazi Germany. However, many states are turning their backs on these obligations by implementing progressively more restrictive asylum and border-control measures.
States continue to pay lip service to their protection obligations, while at the same time adopting measures aimed at keeping asylum seekers away. This is achieved through extraterritorial measures that create barriers preventing asylum seekers from reaching their destinations and seeking protection. This includes measures preventing asylum seekers from boarding planes and travelling by air, as well as intercepting and returning asylum seekers travelling by land and sea. Wealthy democracies often outsource these actions to private entities or poorer neighbouring states in a bid to evade accountability. The barriers to accessing protection have become even greater in response to the COVID-19 pandemic, with many states citing public health concerns in order to completely shut their borders to asylum seekers.
These policies push the boundaries of what is acceptable under international law, exploiting gaps in the international refugee protection regime. States have adopted two main strategies in pursuing this goal of evasion. The first is hyper-legalism— an overly formalistic bad-faith approach to interpreting international legal obligations. Hyper-legalism occurs as states manipulate and exploit perceived gaps in the international refugee protection regime. States claim to comply with the letter of international law but fail to uphold its spirit. Arguments around territory and jurisdiction are rife for hyper-legal reasoning. States have attempted to read down the extraterritorial scope of their international obligations. At the same time, they have developed legal fictions to allow them to treat certain asylum seekers who are physically present in their territory as not being ‘present’ as a matter of domestic law. A related tactic involves states legislating around what they see as inconvenient aspects of their international obligations, redefining what those obligations entail in domestic statutes and regulations.
States are aware of the limits of hyper-legalism. Some actions are so egregious under international law that no amount of formalistic sophistry could legitimize them. In such circumstances, some states have resorted to the tactic of obfuscation. Obfuscation is achieved through secrecy about what actions the government is taking and deliberate silence as to the purported legal justifications. The tactic works best when government actions against asylum seekers are being undertaken far away from the public gaze, such as push-back operations at sea, and remote detention. Obfuscation has also been achieved through the criminalisation of whistleblowing by government officials in the asylum context. By carefully controlling the flow of information about their actions, governments can avoid accountability. With no evidence available to the contrary, their claims as to the compliance of their actions with international law cannot be challenged.
The use of hyper-legalism and obfuscation by governments around the world is undermining the international protection regime. However, they can be challenged with the right strategies. Hyper-legalism can be countered with a good-faith, integrated approach to international law, in line with the rules of treaty interpretation set out in the Vienna Convention on the Law of Treaties. By definition, hyper-legalism departs from the requirement in Art 31(1) that a treaty ‘be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.’ Moreover, hyper-legalistic argument often involve a selective approach to international legal regimes, with governments cherry picking norms that support their actions while ignoring those that do not. This can be countered through a systemic integration of the overlapping normative regimes that govern interaction between governments and asylum seekers and refugees—including the Refugee Convention, human rights treaties, the law of the sea, and treaties aimed at suppressing transnational crime. These arguments can be executed both in the context of strategic litigation, but also in the court of public opinion. Cogent arguments in relation to the legality of policies under international law may have the power to sway public opinion, which in turn can create momentum for policy change.
Resisting governments’ attempts at obfuscation requires a very different approach. When we do not know what actions, the government is taking or what the purported legal justifications are, no amount of legal reasoning will be enough to make a compelling case as to legality. We are left to hypothesize, and default to criticizing secrecy, rather than the legality of the underlying actions. Some limited legal options may be available, such as challenging secrecy laws, or making freedom of information requests. Where we cannot compel governments to reveal what actions they are undertaking, then we must adopt strategies that place independent observers (whether physical or virtual) in the spaces where obfuscation takes place. This form of ‘counter-surveillance’ is already happening with numerous initiatives around the world led by researchers, activists, and refugees themselves using surveillance and other data collection techniques to expose human rights violations.
For those who wish to push-back, it is hoped the strategies outlined here will assist in their efforts to compel governments to abide by their international obligations towards asylum seekers and refugees. Such efforts are needed now more than ever, to ensure that the sweeping asylum restrictions introduced in response to the COVID-19 pandemic do not become permanent.
Language Skills and Comparative Law – Finding a Balance?
Jaakko Husa University of Helsinki
Theoretically oriented scholarship on comparative study of law makes it clear that language is important. More generally, law and language are deeply intertwined and for a comparative law scholar this causes a specific problem concerning information about foreign law. Now, legal language even within a one system is a complicated phenomenon, as it requires special knowledge in order to be understood correctly. Legal language is a paragon of language for specific purposes (LSP) that is created and used by legal professionals. It is through language we become familiar with the content of the law. It is through language that we use the law. For comparatist the language issue concerns the challenge of understanding foreign legal language. In many cases, language erects barrier for comparative research.
For comparatist, legal language comes with specific problems that are caused by the ambiguity of legal language, which is duplicated when there is more than one language. It goes without saying that language skills (the ability to benefit from legal information in foreign languages) are of particular importance in comparative study of law. Nobody is seriously denying that this is the case although in research practice people have different approaches to the problem. Perusing the most popular comparative law journals shows that English translations are widely used without further ado. What should one think of this state of affairs?
It is commonplace to argue that it is recommendable to acquire the primary sources from official legal materials (statute books, case registries, and preparatory material for legislation) of the systems that are included in the comparison. Either the researcher or those assisting them require sufficient knowledge of the foreign language(s) in question. Today, however, language related problems are mitigated by the fact that materials from different legal systems are available as translations in broadly known languages (mostly in English, sometimes in French or German) exist. Accordingly, it is not impossible to obtain translated material through the various websites, many of which are free of charge while others hide behind the paywall. Machine translation has also been taking huge steps forward, although, machine translations are tricky and not fully reliable as legal language is a LSP.
The issue with language is certainly not a new one. For such a classical comparative law scholar as Ernst Rabel, language was a façade that shrouded law’s substance from an outsider. Language was an obstacle to proper understanding. As Oliver Wendell Holmes famously noted, “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.” How things stand concerning language and comparison is that it is more widely acknowledged today that language is distinctly important for comparative study of law. Something not to be ignored, to be sure.
However, among scholars there are different views on the significance of language in actual research. While academically ambitious comparative law scholars underline the importance of knowing many languages, others are happy with translations as they rely virtually completely on materials in English. What we might label as serious comparative law scholars refuse to rely solely on translations, thus, they are necessarily confronted with the inconveniences concerning the translation of foreign legal language (terminology, concepts etc.). Those relying on translations do not have this problem, thus, linguistically sensitive comparatists may sneer at their work.
The practical question for comparative law researcher is simple: How many languages one should master. Surely, nobody can master a huge amount of foreign languages and, besides, it would not make sense to use several years of trying to learn foreign languages before one can actually do research. Then again, comparative law scholars of today – by and large – stress the importance of language skills and nurture doubts when they see comparative studies based on translations penned by people who seem to be virtually monoglots.
In my view, the question of “how many” lacks nuance. This is simply because comparative law research is not a monolith. Consequently, linguistic skills needed are different depending on the specific purpose of each research. Different methodologies have different requirements. Language issue should not be discussed in a vacuum as if all comparative law researchers would necessarily need similar kinds of skills. This is not the case.
In essence, the knowledge interest (why and what kind of knowledge is sought after) has an imperative significance. If one is to make deep-level comparative study of law between a very small number of legal systems (say 2 or 3), then, it is indeed important to have sufficient skills in languages in question. Relying purely on translations would not make it possible to understand the deeper levels of law. Yet, having sufficient skills means ability to read and translate those languages. Full mastery of a foreign language is completely different issue as comparatist has the need to understand the foreign materials, not the need to be fully fluent in all aspects of the languages in question. For comparative law researchers foreign languages are, primarily, source languages not languages for communication.
On the other hand, if one were to compare a great number of legal systems, then, it would make absolutely no sense to require linguistic skills in all of the compared systems’ languages. I argue that a simple rule of thumb may be helpful: The more qualitative the comparative study is, the more important language skills are. The more quantitative the comparative study is, the less possible it is to have language skills in all of the compared systems. It is about balancing.
In conclusion, before making over-generalizations about language skills in comparative study of law one needs to think what kind of comparative research one is doing. Only after considering this, it becomes possible to ensure that one’s linguistic skills match to the kind of research one pursues doing. None of this is to argue that language skills would not be crucial for comparative study of law; however, there is also a need to be realistic.
Welcome to the ASCL Blog
The ASCL is delighted to announce the launch of its blog. The blog aims to host contributions on any topic related to comparative law: its purpose, methodology, case studies, and also theoretical reflections on topics of global interest. It features new books, important articles in comparative law scholarship and opinion pieces.
Our ambition for the blog is to liven our community of comparativists. It will help us engage in an intellectual exchange on legal problems all around the world. The blog’s aim is to ensure prompt communication among comparativists on issues that are topical and attract international interest. As such it will fill a gap in this area.
We welcome contributions by scholars at all stages of their academic career. The blog will be peer-reviewed and attempt to be representative of various communities around the world. We will ensure that our blog serves the values of diversity and pluralism.
We invite contributions from scholars from all over the world.
Ioanna Tourkochoriti (Chair of the ASCL Website Advisory Committee)
