Reading List - Comparative Law Method

[B] Comparative Method

Esin Orucu and David Nelken (eds), Comparative Law: A Handbook (Hart Publishing, 2007).

Geoffrey Samuel, An Introduction to Comparative Law Theory and Method (Bloomsbury, 2014).

Geoffrey Samuel, ‘Can Social Science Theory Aid the Comparative Lawyer in Understanding Legal Knowledge’ (2019) 14(2) Journal of Comparative Law 311.

Geoffrey Samuel, ‘Taking Methods Seriously (Part One)’ (2007) 2(1) Journal of Comparative Law 94.

Geoffrey Samuel, ‘Taking Methods Seriously (Part Two)’ (2007) 2(2) Journal of Comparative Law 210. 

Geoffrey Samuel, ‘Is Law Really a Social Science’ (2008) 67(2) Cambridge Law Journal 288. 

Geoffrey Samuel, 'Comparative Law and Jurisprudence' (1998) 47 (4) International and Comparative Law Quarterly 817.

Geoffrey Samuel, 'Comparative Law as a Core Subject' (2001) 21(3) Legal Studies 444.

Geoffrey Samuel, ‘What is (or perhaps should be) the relationship between legal history and legal theory’ (2018) 6(1) Comparative Legal History 97.

Geoffrey Samuel, Rethinking Legal Reasoning (Edward-Elgar Publishing, 2018); 

Geoffrey Samuel: Epistemology, Ontology, Law, Legal Science, Structuralism, Interdisciplinarity, Normative, Hermeneutic, Construction and Deconstruction, Metaphor,:

• Geoffrey Samuel, 'Can Legal Reasoning be Demystified' (2009) 29(2) Legal Studies 181.

• Geoffrey Samuel, 'What is the Impact of Culture on Legal Theory?' (2019) 101(1) Droit et Societe 181. 

• Geoffrey Samuel, 'Paradigms in Modern European Comparative Law: A History. By BALÁZS FEKETE. [Oxford: Hart Publishing, 2021. xvi + 203 pp. Hardback £70.00. ISBN 978-1-50994-692-1.]; (2019) 81(3) Cambridge Law Journal 679.

• Geoffrey Samuel, 'Comparative Law and Epistemology: Is Globalisation Changing What It Is to Have Legal Knowledge?' (2021) 16(2) Journal of Comparative Law 464.

• Geoffrey Samuel, 'Interdisciplinarity and the Authority Paradigm: Should Law Be Taken Seriously by Scientists and Social Scientists' (2009) 36(4) Journal of Law and Society 431.

• Geoffrey Samuel, 'Is Legal Knowledge Cumulative' (2012) 32(3) Legal Studies 448.

• Geoffrey Samuel, 'Is Legal Reasoning like Medical Reasoning' (2015) 35(2) Legal Studies 323.

• Geoffrey Samuel, 'Is Legal Neo-Formalism Nothing but Pastiche?' (2020) 15(2) Journal of Comparative Law 347.

• Geoffrey Samuel and Pierre Legrand, 'A Conversation on Comparative Law' (2020) 15(2) Journal of Comparative Law 371.

• Geoffrey Samuel, 'Interdisciplinarity: Can Film Studies Contribute to Comparative Legal Studies?' (2021) 8(2) Critical Analysis of Law: An International & Interdisciplinary Law Review 27.

• **Geoffrey Samuel, 'What Is the Role of a Legal Academic? A Response to Lord Burrows' (2022) Amicus Curiae 305 - legal ontology, Dworkinian model of rights.

• Geoffrey Samuel, 'Should Comparative Law Be Reconstructed?' (2022) 17(2) Journal of Comparative Law 518.

• Geoffrey Samuel, 'Interdisciplinary and Legal Scholarship: Are Comparatists in a Lonely Place?' (2022) 17(2) Journal of Comparative Law 539.

• **Geoffrey Samuel, 'Can Doctrinal Legal Scholarship Be Defended?' (2022) Amicus Curiae 43.

• **Matyas Bodig, 'The Epistemological Profile of Legal Doctrinal Scholarship - A Reply to Geoffrey Samuel' (2023) Amicus Curiae 476 - normative, hermeneutic.

• Oleksiy V. Kresin, 'Comparative Law Days in Lausanne' (2023) 18(2) Journal of Comparative Law 592.

• Anna Conley, 'Comparing Essential Components of Transnational Jurisdiction: A Proposed Comparative Methodology' (2023) 31(1) Tulane Journal of International and Comparative Law 1.

James Penner, ‘Rethinking Legal Reasoning by Geoffrey Samuel’ (2019) 78(2) Cambridge Law Journal 450.

Pierre Legrand, ‘On the Singularity of Law’ (2006) 47(2) Harvard International Law Journal 517.

Pierre Legrand, ‘Comparative Law’ in David Clark (ed), Encyclopedia of Law and Society (SAGE, 2007).

Pierre Legrand, ‘Negative Comparative Law’ (2015) 10(2) Journal of Comparative Law 405.

Pierre Legrand, 'Comparative Legal Studies and Commitment to Theory' (1995) 58(2) Modern Law Review 262.

Pierre Legrand, ‘How to Compare Now’ (1996) 16 Legal Studies 232.

Pierre Legrand, 'The Impossibility of ‘Legal Transplants’' (1997) 4 Maastricht Journal of European and Comparative Law 111.

Pierre Legrand, 'John Henry Merryman and Comparative Legal Studies: a Dialogue' (1999) 47(1) American Journal of Comparative Law 3.

John C Reitz, 'How to do Comparative Law' (1998) 46(4) American Journal of Comparative Law 617.

Simone Glanert, ‘Method?’ in Giuseppe Monateri (ed), Methods of Comparative Law (Edward Elgar Publishing, 2012) 61.

Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) 12 Law and Method 1.

Peter de Cruz, Comparative Law in a Changing World (Routledge-Cavendish, 3rd ed, 2007).

Wygene Chong, ‘Harmonisation in Comparative Law: Lessons in Diplomatic Immunities’ (2017) 2 Perth International Law Journal 1.

Vernon Palmer, ‘From Lerotholi to Lando: Some Examples of Comparative Law Methodology’ (2004) 4(2) Global Jurist Frontiers 1.

Maksymilian Leskiewicz, ‘Epistemology and Method in Law, Geoffrey Samuel’ (2005) 24(1) University of Queensland Law Journal 225.

Michel Foucalt, ‘Practicing Criticism’ in L Kritzman (ed), Politics, Philosophy, Culture: Interviews and Other Writings 1977-1984 (Routledge, 1990).

Annelise Riles, ‘Encountering Amateurism: John Henry Wigmore and the Uses of American Formalism’ in Annelise Riles (ed), Rethinking The Masters of Comparative Law (Hart Publishing, 2001) 94.

Jing Zhi Wong, ‘Comparative Legal Methodology and its Relation to the Identification of Customary International Law’ (2019) 4 Perth International Law Journal 81, 98-106. 

> 'intermediary jurisprudence':

• Renae Barker and Camilla Andersen, ‘What is a Child? Developing and Testing the Methodology for Comparative Research on Legal Age Limits: The Australian Model Advancing an International Study’ (2024) 49(2) Monash University Law Review (advance). <https://bridges.monash.edu/articles/journal_contribution/What_is_a_Child_Developing_and_Testing_the_Methodology_for_Comparative_Research_on_Legal_Age_Limits_The_Australian_Model_Advancing_an_International_Study/25024820>. text. "In his analytical review of comparative legal methodology, Jing Zhi Wong states that the ‘“method” of doing comparative analysis is a “method” of developing one’s own intermediary jurisprudence’, ... ".

• Lawrence G Baxter, ' Pure Comparative Law and Legal Science in a Mixed Legal System' (1983) 16 Comparative and International Law Journal of Southern Africa 84, 92 (n 37): "Hall (id 33) defines comparative law thus: "Comparative law is a composite of social knowledge of positive law distinguished by the fact that, in its general aspect, it is intermediate between the knowledge of particular laws and legal institutions, on the one side, and the universal knowledge of them at the other extreme." See also his "Comparative Law as Basic Research" (1980) 4 Hastings Int'l alld Comp L Rev 189, 199-200, where the knowledge generated by comparative law is described as "intermediate" or "taxonomic"; and Imre Szabo "Theoretical Questions of Comparative Law" in I Szabo & Z Peteri A Socialist Approach to Comparative Law (1977) 9, 23, where comparative law is described as "transitory or intermediary science" in the sense that it provides only an incomplete theory of law. Cf Max Rheinstein "Teaching Tools in Comparative Law" (1952) 1 Am] Comp L 95, 98-99." https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5248&context=faculty_scholarship 

• "intermediary science": "The approach of the natural sciences is not completely unilateral because there are divisions within the sciences. Physico-mathematics provides a pertinent example of a scientia media or intermediary science which is halfway between mathematics and empirical natural science. The physically real forms the material object in regard to the measurement which it allows the scientist to draw from it and the formal object and conceptual procedure remains mathematical. It is a science which is materially physical since it has its end in sensible, and is formally mathematical.": Charles William Leonhardt, The distinction between philosophy and the experimental sciences (MA Thesis, University of Windsor, 1955) 37 <https://scholar.uwindsor.ca/cgi/viewcontent.cgi?article=7280&context=etd>. 

> legal concepts as intermediary: "Many concepts in legal texts are “intermediaries”, in the sense that they serve as links between statements of legal grounds, on one hand, and of legal consequences, on the other": Lars Lindhal and Jan Odelstad, 'Intermediaries and intervenients in normative systems' (2008) 6(2) Journal of Applied Logic 229, 229. <https://www.sciencedirect.com/science/article/pii/S1570868307000572>. 

• See also, "Such theories include the normative positivism of Besson and Lefkowitz, who explicitly allege the existence of international rules of recognition alongside their acknowledgement that the ultimate foundations of international law are moral, rather than simply a matter of social fact. For them, like for Oppenheim, the fundamental ontology of international law rests upon values such as peace and legitimacy. However, unlike Oppenheim, both Besson and Lefkowitz take the convergent attitudes and behaviors of international legal officials to fulfill the intermediary metaphysical role of fixing what counts as a formal source of international law, in much the same way as Hart himself does within the domestic context. I suspect that something like this view of international legal validity captures quite widespread assumptions amongst international lawyers.": Alex Green, 'The Precarious Rationality of International Law: Critiquing the International Rule of Recognition' (2021) 22(8) German Law Journal 1613, part D. 

• See also, Brian Slattery, 'Three Concepts of Law: The Ambiguous Legacy of HLA Hart' (1998) 61(2) Saskatchewan Law Review 323 <https://philarchive.org/archive/SLATCO-8>: "The law presents itself as a body of meaning, open to discovery, interpretation, application, criticism, development and change. But what sort of meaning does the law possess? Legal theory provides three sorts of answers. The first portrays the law as a mode of communication through which law-makers convey certain standards or norms to the larger community. The law's meaning is that imparted by its authors. On this view, law is a vehicle, conveying a message from a speaker to an intended audience. The second theory portrays the law as a mode of interpretation, whereby judges, officials, and ordinary citizens make decisions about how the law applies in various practical contexts. The law's meaning is that furnished by its interpreters. According to this theory, law is a receptacle into which decision-makers pour meaning. The third viewpoint argues that these theories, while not altogether wrong, are incomplete because they downplay or ignore the autonomous meaning that the law itself possesses. This theory suggests that the law is basically a mode of participation, whereby legislators, judges, officials, and ordinary people attune themselves to an autonomous field of legal meaning. The law's meaning is grounded in a body of social practice which is independent of both the law's authors and its interpreters and which is infused with basic values and principles that transcend the practice. On this view, law is the emblem of meaning that lies beyond it. Elements of all three theories are present in H.L.A. Hart's influential work, The Concept of Law,1 which attempts to fuse them into a single, allencompassing theory. Nevertheless, as we will argue here, the attempt is not successful. Any true reconciliation of the communication and interpretation theories can only take place within the framework of a fully-developed participation theory".

> legal concepts intermediary - tools/actors/institutions of actualising/operationalising law/legal outcomes: 

• eg, Kristina Simion, Rule of Law Intermediaries Brokering Influence in Myanmar (Cambridge University Press, 2021). <https://www.cambridge.org/core/books/rule-of-law-intermediaries/A56FACE8993C426981F168568ACB06CA>. 

• See also, "focus on the role of legal infrastructure, including both the law itself and the capacity to wield it effectively.": M Mello et al, 'Legal infrastructure for pandemic response: lessons not learnt in the US', BMJ 2024; 384 doi: https://doi.org/10.1136/bmj-2023-076269 (Published 12 February 2024) <https://www.bmj.com/content/384/bmj-2023-076269>. 

> 'correct expression of law': 

• J Thomas Sullivan, 'Unpublished Opinions and No Citation Rules in the Trial Courts' (2005) 47 Arizona Law Review 419.

Phillp Lochner, ‘Some Limits on the Application of Social Science Research in the Legal Process’ [1973] (4) Law and the Social Order 815.

William Twining, 'Diffusion of Law: A Global Perspective' (2006) 1(2) Journal of Comparative Law 237.

William Twining, 'Globalisation and Legal Theory: Some Local Implications' (1996) 49 Current Legal Problems 1.

Camilla Andersen, 'Defining Uniformity in Law' (2007) 12 Uniform Law Review 5.

Anne-Marie Slaughter, 'Judicial Globalization' (2000) 40 Virginia Journal of International Law 1103.

William Ewald, 'The Jurisprudential Approach to Comparative Law: A Field Guide to "Rats' (1998) 46(4) American Journal of Comparative Law 701.

William Ewald, 'Comparative Jurisprudence I: What was it Like to Try a Rat' (1995) 143 Pennsylvania Law Review 1889.

TP van Reenen, 'Major theoretical problems of modern comparative legal methodology(2); the comparability of positive legal phenomena' (1995) 28(3)  Comparative and International Law Journal of Southern Africa 407

TP van Reenen, 'Major theoretical problems of modern comparative legal methodology (3): The criteria employed for the classification of legal systems' (1996) 29(1) The Comparative and International Law Journal of Southern Africa 71.

Alan Watson, Legal Transplants: An Approach to Comparative Law (University of Georgia Press, 2nd ed, 1993).

Alan Watson, 'Legal Transplants and Law Reform' (1976) 92 Law Quarterly Review 79.

O Kahn-Freund, ‘Comparative Law as an Academic Subject’ (1966) 82 Law Quarterly Review 40.

O Kahn-Freund, 'On Uses and Misuses of Comparative Law' (1974) 37(1) Modern Law Review 1

David Kennedy, 'New Approaches to Comparative Law: Comparativism and International Governance' [1997] Utah Law Review 545.

David Kennedy, A World of Struggle: How Power , Law, and Expertise Shape Global Political Economy (Princeton University Press, 2016).

Roscoe Pound,'What May We Expect from Comparative Law?' (1936) 22 American Bar Association Journal 56

Roscoe Pound, 'Comparative Law in Space and Time' (1955) 4 American Journal of Comparative Law 70.

Linda Savage, 'Corporal punishment: Why the intentional use of violence against children is still acceptable' (2023) Australian Journal of Social Issues (Early View) pt 5 <https://onlinelibrary.wiley.com/doi/epdf/10.1002/ajs4.274>: 'Culture is commonly understood as the attitudes, values, morals, goals, and customs that a society shares or at least believes it shares.'

Nienke Doornbos, 'Community courts as legal transplants: a socio-legal case study from the Netherlands' (2023) 19(4) International Journal of Law in Context 437 <https://doi.org/10.1017/S1744552323000186>.

Petra Mahy, 'The functional approach in comparative socio-legal research: reflections based on a study of plural work regulation in Australia and Indonesia' (2016) 12(4) International Journal of Law in Context 420 <https://doi.org/10.1017/S1744552316000197>. 

** Keebet von Benda-Beckmann, 'Legal pluralism, social theory, and the state' (2018) 50(3) Journal of Legal Pluralism and Unofficial Law 255 <https://www.tandfonline.com/doi/full/10.1080/07329113.2018.1532674>. 

Ways of Knowing: Epistemology & Law<https://ivronlineblog.files.wordpress.com/2018/01/waysofknowing.pdf>. 

Pathmanathan a/l Krishnan (juga dikenali sebagai Muhammad Riduan bin Adbullah) v Indira Gandhi a/p Mutho [2015] MLJU 1225, [30] (Hamid Sultan bin Abu Backer JCA): "[30] In my view, Syariah laws in this country are quite straight forward and does not infringe the rights of non-Muslims in any manner and a just decision can be reached if counsel are sufficiently learned in civil, criminal, constitutional and Syariah law and prepared to balance the rights of the parties and/or judicial principles, not only with the Federal Constitution but also with the Rukun Negara to achieve a just result. Such qualities in knowledge have become a rare breed in Malaysia. That is to say, if a person is an expert in Syariah law only and is not an expert in all fields of law, vice versa then his version of jurisprudence will be of suspect. That is dangerous and that disadvantage in knowledge must be corrected. One giant in knowledge in Civil and Syariah jurisprudence where judicial notice can be taken is Prof. Emeritus Ahmad Ibrahim and such personal with that level of jurisprudence as I said is difficult to find and/or if they are any, they do not engage themselves in disseminating the jurisprudence by writing."

‘Adventures in comparative law research and writing' (Comparative Law Reflections, Blog, 19 June 2020) <https://comparativelawreflections.blogspot.com/>, archived at <https://archive.is/J55N8>. -- mentions "intermediary jurisprudence". 

© Jing Zhi Wong, 2023-2024