Research Handbooks in Comparative Law series
Edited by Pier Giuseppe Monateri
Chapter 14: Further Terrains for Subversive Comparison: The Field of Global Governance and the Public/Private Divide
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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