Could Fiction Aid Comparative Law?

Posted on by Anita Frohlich

Comparative law is not as “pure” as it used to be. Modern comparative law often draws from other disciplines, such as history, economics, or linguistics. This interdisciplinarity can certainly result in beneficial symbiosis, as I have previously pointed out. Yet, how far can interdisciplinarity go?

In his recent article, Comparative Law, Literature and Imagination: Transplanting Law into Works of Fiction, Jaakko Husa introduces a new interdisciplinary area of research: comparative law and literature which he defines as

a cross-cultural field that draws comparisons between and among literature from different legal traditions, aiming to understand variations of law as they are influenced by the cultural context.

Husa coins the term imaginary legal transplant. Legal transplants in comparative law are legal concepts that are copied from one jurisdiction to another. According to Husa, imaginary legal transplants are much more inclusive and fortuitous than real world transplants. Still, imaginary legal transplants may foster our cultural understanding of legal thoughts. In other words, the way authors depict law in their fiction helps us comparative lawyers deliberate on the cultural underpinnings of our global legal traditions.

Bibliography

Jaakko Husa, Comparative Law, Literature and Imagination: Transplanting Law into Works of Fiction, 28 Maastricht Journal of European and Comparative Law 371-389 (2021).

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The United States Supreme Court and Foreign Law

Posted on by Anita Frohlich

With this post, we quickly set aside the issue of interdisciplinarity in comparative law and focus on applied comparative law in a broader sense. Specifically, I would like to look at the question whether the United States Supreme Court (and courts in general) should consider foreign law and practices.

In this regard, Justice Breyer of the United States Supreme Court just published his book The Court and the World: American Law and the New Global Realities. The book essentially is a commented synopsis of recent Supreme Court decisions that mention foreign law. Most of these decisions concerned the interpretation of international treaties or statutes where consideration of foreign law is fairly accepted. Sometimes, however, foreign law was consulted on questions relating to the United States constitution and its interpretation. In particular, issues relating to national security and antitrust triggered a look across borders, but also questions about gay rights and the death penalty.

According to Justice Breyer, foreign law – while by no means binding – could be quite “instructive” in cases involving questions of constitutional interpretation in general and more specifically questions relating to the Eighth Amendment and the death penalty.

“It [the Eighth Amendment] uses the word ‘unusual,’ and the founders didn’t say unusual in what context.”

Generally, judges – and lawyers – across borders could learn from each other. Unfortunately, drawing inspiration from abroad is still very limited – not just for ideological reasons, but also because of lack of understanding foreign law and its terminology.

Bibliography

  • Adam Liptak, Justice Breyer Sees Value in a Global View of Law, The New York Times, September 12, 2015 (available here)

Topics in the Current Issue of the American Journal of Comparative Law

Posted on by Anita Frohlich

It is the end of the year (how fast time has passed!) and I would like to start a new routine on this blog: periodic literature review. For now, I am planning to do this on a quarterly basis and to start with the American Journal of Comparative Law. Later on, I may decide to review more publications more frequently. If you have any particular request or ideas, feel free to communicate them in the comments section.

Volume 62, issue 3 of the American Journal of Comparative Law (AJCL) was published in December 2014. The first part of the issue represents a write-up of contributions to a symposium with the title “Comparative Constitutional Change: New Perspectives on Formal and Informal Amendment”, held at the annual meeting of the American Association of Law Schools (AALS) in New York early this year. It contains articles by Carlos Bernal, James E. Fleming, Ran Hirschl, Samuel Issacharoff, Stephen Gardbaum, and Richard Albert. Comparative constitutional law is a fascinating discipline at the interface between national constitutional law and international democratization. The focus of the symposium and the ensuing articles are the apparent and not so apparent ways of constitutional change from a comparative perspective.

Besides the symposium part, the current issue of the AJCL contains three major articles in the areas of contract law, freedom of expression/Islamic law, and constitutional/Asian law. The first article, The Political Economy of Regulating Contract by Aditi Bagchi, focuses on the macroeconomic factors that influence contract regulation, in particular whether a legislator decides to act preemptively by issuing mandatory rules of contract or opts for posthoc action through default rules. The second article, Blasphemy, Holocaust Denial and the Control of Profoundly Unacceptable Speech by Neville Cox, examines the recently stirred-up divide between largely unregulated freedom of speech in the West (most notably the United States) and strictly regulated statements on religion in Islamic countries. The third article, Survival of the Fittest(2): The Endurance of the ROC Constitution and the Constitution of Japan by Chien-Chih Lin, compares the different factors that led to the longevity of the constitutions of Japan and the Republic of China.

The current AJCL issue concludes by several book reviews. You can access the website of the current issue of the AJCL here. I hope this quick overview was helpful.

Happy New Year!