Table of Contents

Methods of Comparative Law

Methods of Comparative Law

Research Handbooks in Comparative Law series

Edited by Pier Giuseppe Monateri

Methods of Comparative Law brings to bear new thinking on topics including: the mutual relationship between space and law; the plot that structures legal narratives, identities and judicial interpretations; a strategic approach to legal decision making; and the inner potentialities of the ‘comparative law and economics’ approach to the field. Together, the contributors reassess the scientific understanding of comparative methodologies in the field of law in order to provide both critical insights into the traditional literature and an original overview of the most recent and purposive trends.

Chapter 14: Further Terrains for Subversive Comparison: The Field of Global Governance and the Public/Private Divide

Horatia Muir Watt

Subjects: law - academic, comparative law


JOBNAME: Monateri PAGE: 1 SESS: 6 OUTPUT: Mon May 28 12:22:31 2012 14. Further terrains for subversive comparison: the field of global governance and the public/private divide Horatia Muir Watt 1. SUBVERSIVE COMPARISON AND DOMESTIC LAW When used in an essentially domestic context by legal scholars, the practice of comparative law as a subversive discipline serves to induce a de-centering of legal thought.1 Purportedly ‘natural’ legal concepts (frequently in the field of ‘private’ law) which are believed to provide the pre-political constitution of civil society in liberal democracies (such as property, privacy, contract … ), are thereby shown up to be culture-dependent constructs. The demonstration encompasses those principles which actually constitute the architecture of law as a system (distinctions between public and private law, law and politics, law and religion …), and indeed the very methods which structure legal reasoning (codification or case-law; attention to texts or facts; deduction or induction). How indeed can such concepts, principles or methods be natural and thereby unchallengeable, if other traditions or communities manage perfectly well without them? This essentially epistemological question in turn paves the way for a more political critique: however immemorial their history may be made to appear, these constructs are in fact harnessed to a variety of ideological ends – unsurprisingly, when they are particularly embedded, those of the established legal order. This is why their purported naturality is bolstered by myths such as the ‘purity’ of the classical Roman origins of law,2 the immutability of code,3 or the...

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