Comparative Methods in Law, Humanities and Social Sciences

288 Pages·2021·3.614 MB·English

by  Maurice Adams (editor), Mark Van Hoecke (editor)

Comparative Methods
in Law, Humanities and
Social Sciences
Edited by
Maurice Adams
Professor of General Jurisprudence, Tilburg University, the
Netherlands
Mark Van Hoecke
Professor of Comparative Law, Queen Mary University of
London, UK and School of Law, Ghent University, Belgium
Cheltenham, UK • Northampton, MA, USA
© The Editors and Contributors Severally 2021
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Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.
William Pratt House
9 Dewey Court
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Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2021947646
This book is available electronically in the
Law subject collection
http://dx.doi.org/10.4337/9781802201468
ISBN 978 1 80220 145 1 (cased)
ISBN 978 1 80220 146 8 (eBook)
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Contents
List of contributors ix
Preface xiii
1 Comparative disciplines: an introduction 1
Maurice Adams
I. Comparative law as a non-autonomous discipline 1
II. Comparative law and comparative disciplines 3
III. Outlook of this volume 5
2 Methods of legal history and comparative law 11
Geoffrey Samuel
I. Introduction: epistomological issues 11
II. Diachronic versus synchronic: is history everywhere
and nowhere? 17
III. Science eclipsing history 20
IV. Language versus events 25
V. Holism versus individualism 30
VI. Reality (truth?) versus fiction 36
VII. Concluding remarks 41
3 Comparative legal history 45
Kjell Å Modéer
I. Translation and transition of knowledge 45
II. Comparative law related to legal history 47
III. Comparative legal history 47
IV. Comparative law as a legal field of modernity 48
V. Comparative legal constructs 51
VI. Comparative law in a time of globalization 54
VII. New trends in comparative legal history research 58
VIII. Concluding remarks 60
v
vi Comparative methods in law, humanities and social sciences
4 Comparative sociology: epistemological issues 62
Jean-Pascal Daloz
I. Introduction 62
II. The problem of dogmatic assumptions and deductive
reasoning 63
III. Illustration: elite distinction studies and the challenge
of comparative analysis 64
IV. Navigating the twin perils of ethnocentrism and reductionism 71
5 Elements of a comparative methodology in the study of religion 75
Oliver Freiberger
I. Introduction 75
II. The configuration of a comparative study 78
III. The comparative process 87
IV. Conclusion 94
6 Comparative methods in legal anthropology: ‘thick’
comparison through (cultural) translation 96
Katrin Seidel
I. Introductory remarks 96
II. ‘The functional method is a chimera, in both theory
and practice of comparative law’ 98
III. A (global) legal pluralist perspective as a point of departure 102
IV. Towards a thick comparison: (cultural) translation as
an analytic lens 104
V. Concluding remark 120
7 The comparative advantage of cultural anthropology 121
Peter van der Veer
I. Holism: anthropology as conceptual engagement with
social life 121
II. Conclusion 133
8 Methods in comparative politics 135
Mathew Y.H. Wong
I. Introduction 135
II. The origin: the comparative method 136
III. Case selection in comparative politics 138
IV. Statistical analysis 139
V. The (difficult) pursuit of causal relationships 140
Contents vii
VI. Case study versus large-N study 145
VII. Conclusion 148
9 Comparative philosophy and comparison 149
Ralph Weber
I. Introduction 149
II. The subject of comparative philosophy 153
III. Comparative philosophy and the logic of comparison 161
IV. Specific issues about comparison in comparative philosophy 165
V. Conclusion 174
10 Between comparison and commensuration: the trouble
with global social indicators 175
David Nelken
I. Introduction 175
II. Defining comparison and commensuration 176
III. Commensuration in action: global social indicators as
a case study 182
IV. Final observations: what is to be done? 192
11 Particularism versus universalism in the history of
comparative literature 197
Angus Nicholls
I. Introduction: a short history of comparative literature 197
II. Friedrich Max Müller: an example of
a nineteenth-century comparatist 201
III. The British ‘comparative method’ and its Germanic roots 205
IV. Goethe and Müller: a meta-comparison 208
V. Müller’s contemporary relevance: or, a ‘negative
dialectics’ of comparison 213
12 Comparing across societies and disciplines 221
Mark Van Hoecke
I. What is meant by ‘comparing’? 222
II. Theoretical framework 227
III. Interaction of cultures 228
IV. Culturalism or universalism? 230
V. Translation and transplantation 231
VI. Common language 235
viii Comparative methods in law, humanities and social sciences
VII. Tertium comparationis 236
VIII. Interdisciplinarity 238
IX. Methodology 242
X. Conclusion 244
13 Conclusion: challenges of comparison 246
Maurice Adams and Mark Van Hoecke
I. The struggle with methodology 246
II. Is there any comparative method at all? 249
III. Comparative research design 250
IV. First challenge: collecting data 251
V. Second challenge: understanding the other 252
VI. Third challenge: combining quantitative with
qualitative analysis 254
VII. Fourth challenge: tertium 255
VIII. Fifth challenge: interdisciplinarity 257
IX. Sixth challenge: theory building 261
X. Conclusion 263
Index 264
Contributors
Maurice Adams is Professor of General Jurisprudence at Tilburg Law
School (the Netherlands). In his research he has a particular interest in the
relation between constitutional law and politics, and in comparative legal
research methodology. In the latter domain he has published Practice and
Theory in Comparative Law (Cambridge University Press 2012, edited with
J. Bomhoff), Method and Culture in Comparative Law (Hart 2014, edited
with D. Heirbaut) and Research Collection on Method and Methodology
in Comparative Law (Edward Elgar Publishing 2017, with J. Husa and M.
Oderkerk). He is an elected member of the Académie Internationale de droit
comparé.
Mark Van Hoecke is Professor of Comparative Law at Queen Mary University
of London. He has held professorial positions at the universities of Antwerp,
Ghent (where he still keeps a part time position), Leuven, Tilburg and Brussels
(Katholieke Universiteit Brussel, of which he was the rector from 2002 to
2007). In 2001–2 he was a visiting professor at the European University
Institute (Florence, Italy). From 1989 he was the founding co-director, with
François Ost, and now President of the European Academy of Legal Theory.
His current research focuses on theory and methodology of comparative law
and of legal research. See, for example, ‘Legal Cultures, Legal Paradigms
and Legal Doctrine: Towards a New Model for Comparative Law’ (47 The
International and Comparative Law Quarterly 1998, with M. Warrington);
The Harmonisation of Private Law in Europe (Hart 2000, edited with F.
Ost); Epistemology and Methodology of Comparative Law (Hart 2004); and
Methodology of Legal Research: Which Kind of Method(s) for What Kind of
Discipline(s)? (Hart 2011).
Jean-Pascal Daloz is CNRS Research Professor at the University of Strasbourg
(SAGE) in France and Faculty Fellow at the Yale Center for Cultural Sociology.
He previously held positions in sub-Saharan Africa, at the Bordeaux Institute
of Political Studies and then at the Universities of Oxford and Oslo. From 2008
to 2018, he chaired the International Sociological Association’s Research
Committee on Comparative Sociology. Specializing in the study of elites, his
research now mainly focuses on the comparative analysis of social distinc-
tion and on the symbolic dimensions of political representation. He is also
ix
x Comparative methods in law, humanities and social sciences
an authority in the field of cultural interpretive analysis. He has published
15 books so far, including Africa Works: Disorder as Political Instrument
(Oxford University Press 1999, with Patrick Chabal); Culture Troubles:
Politics and the Interpretation of Meaning (Chicago University Press 2006,
with Patrick Chabal); The Sociology of Elite Distinction: From Theoretical
to Comparative Perspectives (Palgrave Macmillan 2010); Rethinking
Social Distinction (Palgrave Macmillan 2013); and La représentation poli-
tique (Armand Colin Paris, 2017).
Oliver Freiberger is Professor of Asian Studies and Religious Studies at both
the Department of Asian Studies and the Department of Religious Studies,
University of Texas (Austin). He joined the faculty at the University of
Texas in 2004. Freiberger’s primary research interests include the history of
Buddhism in South Asia, asceticism, religious boundary-making and compari-
son in the study of religion. His most recent book is on the comparative method
in the study of religion (Considering Comparison: A Method for Religious
Studies, Oxford University Press 2019).
Kjell Å Modéer is Professor of Law Emeritus at Lund University (Sweden),
Professor Emeritus for Legal History at Lund University and Guest Professor
of Law at Luleå Technical University, Sweden. He holds honorary degrees
from the University of Greifswald (Law 2000), University of Lund (Theology
2004) and University of Helsinki (Law 2010). His main research areas are
comparative legal history, comparative legal cultures and traditions, and law
and religion. His two most recent co-edited publications are Comparative
Legal History (Edward Elgar Publishing 2019) and Law and The Christian
Tradition in Scandinavia: The Writings of Great Nordic Jurists (Routledge
2020).
David Nelken is Professor of Comparative and Transnational Law in the
Dickson Poon School of Law at King’s College London. He taught law at
Cambridge, Edinburgh and University College, London, from 1976 to 1989
before moving to Italy in 1990 as Distinguished Professor of Legal Institutions
and Social Change at the University of Macerata. From 1995 to 2013 he was
also Distinguished Research Professor of Law at Cardiff University, and from
2010 to 2014 Visiting Professor of Criminology at Oxford University. The
author of numerous publications, he is also one of the editors of Comparative
Law: A Handbook (Hart 2006). David Nelken is a Fellow of the Academy of
Social Sciences.
Angus Nicholls is Professor of Comparative Literature and German at
Queen Mary, University of London. His books include Goethe’s Concept
of the Daemonic (Camden House 2006), Thinking the Unconscious:
Contributors xi
Nineteenth-Century German Thought, co-edited with Martin Liebscher
(Cambridge University Press 2010) and Myth and the Human Sciences
(Routledge, 2015). He was formerly co-editor of two journals: History of
the Human Sciences (Sage) and Publications of the English Goethe Society
(Routledge).
Geoffrey Samuel is Professor Emeritus at the Kent Law School (UK) and for-
merly a Professor affilié at the École de Droit, Sciences Po (Paris). He received
his legal education at the University of Cambridge and holds doctoral degrees
from the Universities of Cambridge, Maastricht and Nancy 2 (honoris causa).
He has held many visiting posts in France, Belgium, Switzerland, Spain and
Italy. Geoffrey Samuel is the author of a considerable number of books,
chapters and articles on contract, tort, remedies, legal reasoning, comparative
law theory and method and legal epistemology, including Rethinking Legal
Reasoning (Edward Elgar Publishing 2018), A Short Introduction to Judging
and to Legal Reasoning (Edward Elgar Publishing 2016) and An Introduction
to Comparative Law Theory and Method (Hart 2014).
Katrin Seidel is Senior Research Fellow in the Department of Law and
Anthropology at the Max Planck Institute for Social Anthropology, Halle
(Saale, Germany). She studied law as well as African and Asian studies at the
Humboldt University of Berlin. Her research is concerned with the interde-
pendent relationships between plural normative and judicial orders at different
levels of regulation. In her research she contributes to the inter-disciplinary
dialogue by furthering translations of lawyers’ insights into the anthropolo-
gist’s world, and vice versa. Her doctoral dissertation was published in 2013
as Rechtspluralismus in Äthiopien: Interdependenzen zwischen islamischem
Recht und staatlichem Recht (Köln, Köppe). In 2020 she published Normative
Spaces and Legal Dynamics in Africa (Routledge, edited with Hatem Elliesie).
Peter van der Veer is Director of the Max Planck Institute for the Study
of Religious and Ethnic Diversity at Göttingen (Germany). He has taught
Anthropology at the Free University of Amsterdam, at Utrecht University and
at the University of Pennsylvania. In 1994 he was appointed as University
Professor at Large at Utrecht University, a position he continues to hold.
Among his major publications are Gods on Earth: The Management of
Religious Experience and Identity in a North Indian Pilgrimage Centre
(LSE Monographs 1988), Religious Nationalism: Hindus and Muslims in
India (University of California Press 1994), Imperial Encounters: Religion
and Modernity in India and Britain (Princeton University Press 2001) and
The Modern Spirit of Asia: The Spiritual and the Secular in China and India
(Princeton University Press 2013). In 2016 he published On the Value of
Comparison (Duke University Press).