1. Normative Purchase & Persuasiveness
a. Normative Purchase: Claim that foreign law holds normative purchase is far from the statement that it seems to be
b. Persuasiveness
i. Identities:
1. Constitutional
2. Legal
3. National
2. Legal “Self” v. Legal “Other”
a. Self = autonomous
i. has own agency
ii. will not be governed by the visions of the “other”
3. Distinction b/n Atomistic & Solidaristic
a. ATOMistic → Each country views itself as its own legal system in its own realm
b. SOLIDaristic ® Comparatist/Professor’s View
i. view that we are all in this together—countries should help one another
ii. Acknowledge, recognize, & … other laws
c. These different laws most prevalent in National Law, but still same issues raise in Intl Law
4. Insuperability
5. Cement: bundle of views differ from others
6. Majesty ® Authority
7. Female Circumcision Essay → “YUCK” vs. Reasonable
8. Comparative Law = Misnomer b/c it suggests the wrong idea
9. Definition of “Field” = a social intellectual space or “arena”
a. “Arena” =
Lecture 4: 9/2/08
1) When does a Text govern in a Field? What makes one author/comparatists more influential than others?
a) It generates: Belief, faith and trust.
b) How does this come to emerge in such a way that a text will be regarded as the “text of reference” or the “authoritative” text of the field.
c) 2 Separations of Texts:
i) GENERAL
(1) Institutional
(a) Where did she study? It matters that the person graduated from a better vs. less known institution.
(b) Should this institutional fact matter? We don’t care– IT DOES matter.
(2) Intellectual
(a) Who was the dissertation supervisor?
(b) In Germany dissertation supervisor = Doktorvater (“Doctor Father”) which represents the close relationship that is meant to be made b/n the student and supervisor.
(c) Where is she publishing her articles/books?
(i) Certain Law Reviews are more prestigious than others.
(d) Where is the comparatist inviting to teach or invited to speak at?
(3) Managerial
(a) Direction of program institute or studies
(b) Ability to attract funding (like to organize intl conferences, research projects,
(4) “Collegial”
(a) Concern a cluster of factors such as:
(i) Where is he on the reading list?
1. Point: One can be a really good writer, but if these texts do not have any impact, they are in a sense “wasted.” They are un-influential at the very least.
2. Is the author’s work a required reading in the realm of comparative studies?
(ii) Who are the comparative’s friends? Who does he thanks at the author note?
1. The politics of the author note
2. the significance of the names in the author note
a. Author says: Before you attack me look at th
hich French are not prepared for an individual to exercise his own judgment about whether a K is valid or not. Jud. opinions in France are not signed b/c we do not trust them if they are “personalized.”
iii) DOUBLE BIND
(1) Culturalist says YES: THE COMPARATIST IS ALWAYS CAUGHT IN A DOUBLE BIND which will inevitably color his analysis. The law that is being discussed is also inevitably double bound as well. You are stuck as a comparatist b/c you are from somewhere w/ a socialization process. The law is also caught in its own history, society, etc.
(2) Posititvist would DENY this Double Bind Culturalist view. P says he can be objective. P also says you can look at Laurence in a Black Law prospective. You don’t need to look at it in history.
iv) Bowerr v. Hardwich (1986)
(1) Did refer to foreign law
(a) nobody raised an eyebrow
(b) Why is it in Laurence v. Texas (June 2003- Justice Kennedy) that the reference to foreign law so problematic?
1) Hein Kotz® Leading Comparatist
a) Co-authored text book with Zweigert in 1966 – book is “Positivist” aka Black Letter Law
i) Positivsm is governing ideology
