Comparative law and private international law have had a long and intimate relationship. Traditionally, comparative law has interacted with private international law in three basic dimensions which can loosely be termed academic, legislative, and judicial. Comparative law has made private international law the object of scholarly study; it has assisted in the making of private international law rules; and it has provided a method for the application of existing conflicts norms. Recently, however, the emergence of supra-national legal orders has had a significant impact on the relationship between these disciplines, which are now jointly facing the challenges posed by the coexistence of overlapping legal regimes on multiple levels. These challenges can only be met through even greater cooperation between comparatists and private international lawyers than in the past.
The gradual emergence of a European private law is one of the most significant contemporary legal developments. Comparative law scholarship has played an important role in this process; in turn, it has received a boost as a result of the ‘Europeanization of private law’ agenda. The present essay attempts to provide an overview of the new types of literature that have been created, of new perspectives that have been opened up, of new approaches that have been tried, and of the transnational networks that have been established. Within the traditional core areas of private law, contract law has been at the centre of attention. Apart from the many Directives, particularly in the field of consumer contract law, a prodigious number of reference texts has been produced and, for some time, a codification of European contract law appeared to be imminent. That plan has now collapsed, and the institutionalized ‘Europe’ is, at the moment, facing strong headwinds. One of the challenges faced by comparative scholarship consists in preserving the momentum that has been build up over the past three decades. The European Law Institute, founded in 2011, may emerge as an important platform to advance the Europeanization of private law through facilitating and stimulating transnational comparative study.
Erika De Wet
This article discusses the constitutionalization of international law, which can be summarized as an attempt to exercise legal control over politics within the international legal order itself, in order to compensate for the erosion of such control within domestic constitutional orders. In doing so, it attempts to translate to the international plane concepts that were traditionally reserved for domestic constitutions. Critics regard attempts to use concepts of domestic constitutionalism as a mechanism for controlling the international exercise of public power as over-ambitious. This argument is also fuelled by the lack of conceptual clarity in the debate pertaining to international constitutionalism and the controversies pertaining to the legitimacy of the value-laden hierarchy of norms in international law.
Horatia Muir Watt
If comparative legal studies are to retain their relevance in understanding the impact of global changes on existing local traditions, their modes of interaction and influence, and their strategies for survival, then, the article concludes, their focus certainly needs adjusting. This article attempts to examine the ways in which comparative law as a discipline is affected by the changes wrought by globalization, and in particular the challenges which such changes imply for the methodological agenda of comparative legal studies and for its ideological commitments. More pragmatically, it may also be useful to envisage the impact of increased access to information on foreign laws, and the growth of trans- or international sources of uniform law, on the practical usefulness of comparative law.
Wen-Chen Chang and Jiunn‐Rong Yeh
This article focuses on the internationalization of constitutional law. It discusses major trends in the internationalization of constitutional law, including the incorporation of international human rights treaties into constitutions, convergence, and comparativism of national constitutions, and constitutional devolution or treaty-becoming constitutions. Next it makes inquiries into the driving forces that push the development of constitutions across and beyond their borders. It argues that the current internationalization of constitutional law results primarily from the expansion of a global market, the triumph of rights-based discourse, and, most importantly, the emergence of transnational networks by governments, non-governmental organizations, and technocrats or professionals.