The American Journal of Comparative Law

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What We Write About When We Write About Comparative Law: Pierre Legrand’s Critique in Discussion * Preface

mar, 2017/07/11 - 23:00
Some maintain that comparative law has become an old fashioned discipline that belongs to a time when globalization and transnationalism had not yet occurred.11 Others observe instead that comparative law has never been as much in demand in practice as it is today.22 Both approaches may tend to be overly instrumental, and oblivious of the fact that comparative law might well not serve any other direct purpose than an academic quest into legal knowledge.33

Jameses at Play: A Tractation on the Comparison of Laws †

mar, 2017/07/11 - 23:00
AbstractWithstanding trendyism and its abrupt brevities, shunning the contemporary’s brisk cadences, this Article compares two salient comparativisms-at-law. While it argues that these models are epistemically irreconcilable in significant respects—and that one approach is emphatically more interpretively empowering than the other—it also claims that neither strategy is able to escape the play of the text. The inevitability of comparativism as play means that every enunciation of foreign law and every comparison-at-law must stand as the comparativist’s invention, as an exercise in self-portraiture also, as an egotrope.

Comparison, Law, and Culture: A Response to Pierre Legrand †

mar, 2017/07/11 - 23:00
AbstractA common method in comparative law is functionalism. Legal doctrines and rules are compared in terms of the functions they serve. This method is sometimes in tension with another which explains differences in law by differences in culture. That tension can be reconciled by recognizing that these methods are complementary variants of a teleological approach to law and culture, one that is concerned with the goals, purposes, and ends that the members of a society are trying to achieve. This Article responds to Pierre Legrand’s claim that the functionalist method is “positivist,” and so blinds one to differences among cultures. He, and like-minded thinkers such as Jacques Derrida, regards each society or culture as a “singularity.” If it were utterly singular, however, it would be unintelligible. To understand the differences, as well as the similarities, one must be able to identify some features of a society and discuss them in abstraction from others. The features that chiefly define what we mean by differences in culture, and enable us to understand and appreciate them, are the purposes that the members of a society are pursuing and the ways in which they do so.

The Hunt for Truth in Comparative Law †

mar, 2017/07/11 - 23:00
AbstractIn this response to Pierre Legrand’s dense and provocative account of my differences with James Gordley, I express some gratitude for Professor Legrand’s kindness, some dismay at his account of Gordley, some uneasiness about the use of literary theory in comparative law, and not least my admiration for Legrand’s deft and inventive writing. While I gladly acknowledge that there is a kinship between his attitude toward scholarship and my own, I insist that I have by no means given up on the hunt for truth.

On Hostility and Hospitality: Othering Pierre Legrand †

mar, 2017/07/11 - 23:00
AbstractPierre Legrand’s return to the pages of the American Journal of Comparative Law after nearly twenty years is cause for reflection on the reasons for this prolific comparatist’s absence from one of the discipline’s leading scholarly fora. One reason is the widespread disdain aimed at Legrand as a result of his persistent, sharply critical, and often pointedly personal crusade against the discipline’s accepted approaches and their most prominent practitioners. This is partly the nature of the article he publishes in this collection, which features a no-holds-bared, uncomplimentary assessment of the work of James Gordley. In this Article I argue that Legrand’s exile is a poor response to his sharp-tongued but profoundly important vision for our discipline. The better path, one I try to map here, would be to challenge Legrand by exposing the ways in which his hostility for comparative law’s “established scholars” clashes with the Derridian critical theory that animates all of his work.

Comparative Law and Decolonizing Critique †

mar, 2017/07/11 - 23:00
AbstractThis Article seeks to reanimate comparative legal scholarship by reorienting it towards decolonizing critique. In his critical assessment of the state of the field, Pierre Legrand suggests that comparative law has become mired in a solipsistic and outmoded style of positivism. Drawing upon theoretical insights from critical theory, Legrand argues that comparative law might render itself more generative and more relevant by engaging in a more contextualized analysis of law and encouraging active interpretation beyond descriptive reporting. This Article extends Legrand’s arguments to suggest that an emancipated, incorporative, and interdisciplinary comparative law might play an important role in decolonizing legal scholarship more broadly. Founded in a commitment to constrain an ethnocentric impulse in legal discourse, comparative law might be expanded to challenge the varieties of Eurocentrism that continue to define legal scholarship and study, while providing hospitable ground for critical and interdisciplinary projects aimed at exploring the colonial roots of both the contemporary nation-state system and globalized racial formations.

Les Jeux Sont Faits: Comparative Law—As It Really Was Meant to Be? †

mar, 2017/07/11 - 23:00
AbstractThis invited commentary offers a number of reflections in response to a recent article by Pierre Legrand. In that article, several frontlines are drawn between what Legrand considers the right and the wrong ways of doing comparative law. The following commentary tries to make sense of both the origin and direction of what oftentimes comes across as an overly harsh and even polemical critique of different scholars who are active in the field.