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date: 31 May 2020

New Directions in Comparative Law

Abstract and Keywords

This chapter discusses new directions in comparative law. It shows that the field of comparative law has become more diverse, both in its methods and by turning its attention to new topics. These changes have occurred, first, as traditional comparative law has increasingly allowed modifications to functionalism and has expanded its reach beyond ‘just’ Western-based state laws. Second, comparative law has also ventured into new terrain, for example, by more readily accepting quantitative methods and by turning its attention to the comparison of regional, international, and transnational law. Third, there is an increase in interdisciplinary research on topics of comparative law, for example, as it incorporates research from economics and political science that aims to establish causal relationships and to assess new forms of global governance.Thus, the overall trend is that comparative law has broadened both its methodological tool box and its substantive perspective. One can regard this as a kind of centrifugal effect: apparently, there is much interest in comparative law but also considerable dissatisfaction with the established core, and in combination, these elements drive the exploration of new methods and themes. Yet, there are also centripetal forces at work, reaffirming the traditional status quo of a more confined core of comparative law.

Keywords: causality, comparative law, functionalism, global governance, indicators, interdisciplinary research, legal pluralism, quantitative approaches

I. Introduction

This chapter discusses new methods and topics of comparative law. The term ‘new’ is mainly intended to refer to trends of the last ten to fifteen years. Yet, since some of these trends are continuations of previous developments, this chapter also considers some trends which go back to the 1990s. The time covered here has been a period of major changes in the world, such as the fall of communism, the rise of globalization, and the growing digitalization of society. These changes are likely to be reflected in comparative law as a field which is said to be shaped by ‘broad intellectual or theoretical trends and movements, by societal developments and the political climate’.1 This chapter thus also illustrates (p. 853) the dynamic nature of comparative law, as well as the need for comparatists to pay attention to real-world developments.

The main divide of this chapter is between methods and topics. It will also show that there is an interrelationship between changes in these two dimensions: new methods point towards new topics and new topics may require new methods. This correspondence is reflected in the parallel sub-headings of both parts, dealing with modifications of traditional methods/scope in Sections II.2 and III.2, extending methods/scope in Sections II.3. and III.3, and interdisciplinary research in Sections II.4 and III.4. The divide into these three sub-headings is based on the widespread view that comparative law can be divided into three clusters of approaches: first, we have a traditional form of comparative law with a focus on positive state law, legal families, harmonization, and functionalism.2 Second, there are other forms of comparative law, for example, of a postmodern, critical, and socio-legal nature and dealing with more than state law.3 Third, there are frequent calls to move beyond comparative ‘law’ and integrate it into a fully interdisciplinary research agenda.4

It is of course a challenge to identity representative themes of ‘new directions in comparative law’. Inevitably, any choice will be somewhat subjective as well as selective. Still, certain trends can be identified with little controversy, for example, the growing use of quantitative methods in comparative law and the debate about global governance. In addition, the prologues to the subsequent two parts will support the choice of trends made here by applying the quantitative method of content analysis based on a search of all journals in Westlaw’s ‘World Journals and Law Reviews’.5

II. Methods of Comparative Law

1. Prologue

In the recent past, critics often complained that comparative law’s methodology was ‘still at the experimental stage’ and that there was ‘very little systematic writing about the methods (p. 854) of comparative law’.6 Yet, at least since the 2000s, this has changed: for example, a number of handbooks deal with the methods of comparative law,7 and more general books about comparative law also have a strong focus on methodological questions as opposed to, say, merely reviewing the legal families of the world.8

Figure 31.1 shows the evolution of four key terms that are of interest for the methods of comparative law.9 Functionalism is the main approach associated with the traditional method. As far as traditional comparatists follow a functional approach, however, they may often merely use it without deeper methodological reflections. Thus, the actual increase of functionalism in the mid-2000s is likely to be explained by a growing body of research that modifies functionalism, as discussed further in Section II.2. The use of the terms ‘quantitative’ and ‘interdisciplinary’ has seen a general increase in use since 1990. Especially the use of quantitative methods in comparative law is one the main trends that has extended the methods of comparative law, as will be explained in Section II.3. The growth in the discussion of ‘interdisciplinary’ approaches partly overlaps with this trend, but it can also go further and become wider in the sense of incorporating ideas from other disciplines. The most challenging question may be whether comparative law should follow the lead of other (p. 855) disciplines, such as the hard sciences, but also economics, political science and sociology which often aim to explore questions of ‘causality’.10 With regard to this term, we can observe a more modest increase; yet, as this topic has gained in popularity in the final two years of the chart, it may point towards a future trend, as Section II.4 will discuss.

New Directions in Comparative Law

Figure 31.1 Evolution of method-related terms in comparative law articles (as percentage of all comparative law articles)

2. Modifications of Traditional Methods

A core belief of traditional comparative law is that it is possible to provide guidance, or even a blueprint, for how comparative analysis should be conducted. This often means suggesting the following steps: (i) identify a functional research question and the countries of the analysis; (ii) describe the laws of these countries; (iii) compare the laws, in particular exploring the reasons for unexpected similarities and differences; and (iv) evaluate the findings and provide policy recommendations.11 This structure has an intuitive appeal. It is also resilient as academic disciplines only change very slowly, with legal scholarship in general, and comparative law in particular, being no exception.12

However, even within the mainstream, one can identify some recent modifications. Some of them entail challenges to functionalism, which traditional comparatists still regard as valuable, notwithstanding their acknowledgment of its limitations.

On the one hand, this position is based on the assumption of functionalism that law’s aim is simply to address certain social problems. Here, a ‘pragmatic traditionalist’ can argue that it is helpful to use a functionalist starting point in order to identify different fields of law that may be relevant in different legal systems,13 while then also acknowledging that law is not always functional. For example, even a traditional functionalist could—in the second, descriptive, step of the analysis—recognize symbolic and aspirational laws, as well as laws that have become dysfunctional but remain in force due to inertia and conservatism in law-making and legal thought.14

On the other hand, functionalism often aims to identify functional equivalents. This is notably the case for comparatists who take the view that there are often functional similarities (p. 856) between the laws of different countries despite formal or doctrinal differences.15 Yet, in principle, traditional comparative law would—in the third, comparative, step of the analysis—also be willing to identify situations where there are, for example, formal similarities but functional differences.16 A major reason that traditional comparative law has often observed functional equivalents is that their conventional examples are drawn from Western private law which tends to support their position. This perspective changes, however, as comparative law expands its scope to include other areas of law and non-Western countries. For example, in comparative constitutional law, it has been found that the text of constitutions has strongly converged while functional dissimilarities have remained widespread because constitutions pursue diverse aims in different parts of the world.17

Beyond functionalism, the traditional approach is associated with a focus on black-letter law. Yet, modern technology has made the task of presenting foreign legal rules fairly trivial as ‘one can simply use a web search engine to consult a collectively produced online database’.18 Traditional comparative law has also, to some extent, responded to the criticism that a black-letter approach is too narrow. For example, deviating from the four-step blueprint mentioned above, many monographs of comparative law now include introductory parts that explain theoretical concepts relevant to the respective legal question. These explanations can be combined with a functional approach, but they can also be used as an alternative to it, for example, when a comparative study uses these theoretical concepts as the common element of the legal systems under investigation.19

The traditional approach has also frequently been extended to consider the interaction between institutions, society, and culture. For example, according to John Bell:

[W]e cannot be content to present rules without some reference to the organisational setting, the procedural context and the conceptual structure within which legal problems emerge and the rules are operated. This is not necessarily a call for socio-legal or even ‘law-in-context’ work, but it does require thought at least about the legal embeddedness of the legal problems as they present themselves in the different countries studied.20

Scholars have sometimes debated whether studies of individual countries fall within the remit of comparative law. Where this is assumed,21 studies often combine the discussion of a country’s law with the discussion of its culture. For example, writing about Russian culture and property rights, Uriel Procaccia takes the position that the widespread Russian antipathy (p. 857) towards contracts is related to the fact that elements of Western European culture—such as individualism, materialism, rationalism, and humanism—have not been well received in Russia;22 Menachem Mautner starts his book on the ‘law and the culture of Israel’ with the observation that Israeli law reflects ‘the struggle over the shaping of the Jewish culture and identity’;23 and Roberta Rosenthal Kwall writes that ‘Jewish law, which is binding upon Jews according to the tradition, produces Jewish culture, and Jewish culture produces Jewish law’.24

Finally, contemporary traditional comparatists have often considered the language of the law in the interpretation of the respective legal rules. Here, to start with, it has been observed that, for these scholars, dealing with language differences is merely ‘an interim step whereby otherness is removed from the foreign text’.25 For example, one view presents the question about translation as a merely pragmatic one: since it cannot be assumed that everyone reads all of the languages of countries covered in a comparative study, the translation of terms may simply be a necessity in order to make foreign legal concepts and ideas accessible.26 The counter-view is keen on not misrepresenting the foreignness of foreign law and thus suggests keeping the original foreign language terms, an approach that can be related postmodern approaches to comparative law and that will be discussed in the next section.27

A deeper analysis of the nature of translation of foreign legal terms also reflects core positions of comparative law today. In a nutshell,28 a functional approach to translation focuses on the target language so that the receiver (ie the reader of the translated text) reacts to the text just like he or she would react to a text initially written in the target language. A literal approach, by contrast, argues that translation needs to be faithful to the linguistic particularities of the source text. A cultural approach, finally, aims to preserve the best of both worlds: like the functional translation, it aims for a non-literal translation that reads well, while, like the literal translation, it also aims to be sensitive to the source language. Thus, here too, we see that a functional approach can be modified to include other relevant considerations.

3. Extending Methods

Today, comparatists who go beyond traditional methods use a variety of alternative approaches. I have previous classified them under the headings of postmodern, socio-legal (p. 858) and numerical comparative law.29 Since topics related to postmodern and socio-legal comparative law are covered by other chapters of this book;30 they will only be outlined briefly here, followed by a more detailed treatment of numerical approaches.

A core element of postmodern comparative law is that it has identified important limitations of the traditional method.31 First, traditional comparatists have a tendency to regard similarities between legal systems as more plausible and interesting than differences. Yet, there is no reason why, a priori, this should be the case. Second, traditionally, comparative law tends to focus on black letter rules, whereas postmodernists highlight that culture, language, and politics are often of crucial importance. Third, postmodern approaches to comparative law teach us that functionalism is often problematic since law may not be geared towards certain functions at all. Fourth, these points can also impact the way a comparative law paper is structured. For instance, if a pure description of the positive law is considered highly misleading, a comparatist should not defer the deeper analysis to the explanatory phase but use ‘immersion’ as a primary tool of analysis. As a consequence, postmodern comparative law suggests that the field of comparative law needs to expand its methodology in order to become ‘deeper’ and more ‘critical’. The call for ‘deeper’ engagement reacts to the problem that the traditional method may only achieve a relatively shallow understanding of differences and similarities;32 this entails a demand for a ‘deeper’ analysis of the respective laws as well as ‘deeper’ forms of comparison.33 The call for a more openly ‘critical’ approach reflects the position that the traditional method leads to flawed results, for example, when it overlooks how cognitive biases and preconceptions influence our understanding of foreign legal systems.

The growing use of socio-legal comparative law responds to another limitation of the traditional approach: the perceived lack of consideration of both law in practice and the relationship between law and society. The socio-legal turn also reflects developments in general legal scholarship as many countries have seen a trend towards such studies, especially towards a law and society approach and to empirical legal research. In substance, two elements characterize socio-legal comparative law. First, it replaces the formal understanding of law, attributed to traditional comparative law, as a set of rules with a socio-legal conception—often using the term ‘legal culture’.34 Second, it explores whether and how law and society are related in a causal way.35 Socio-legal comparative law can involve a variety of qualitative, quantitative, or mixed methods. For example, with regard to quantitative methods, there have been many comparative studies that have analyzed litigation rates and other empirical data.36

(p. 859) By contrast, numerical comparative law tries to develop quantitative tools that aim to measure the form and content of the law itself. This is an even more recent trend and it faces a number of challenges. The initial problem is that legal rules are, by their very nature, not represented in a quantitative way. Thus, a core question of numerical comparative law is how to obtain quantitative legal information. Three broad approaches can be distinguished: ‘counting facts about law’, ‘coding law’, and ‘conducting surveys about the law’.37

First, ‘counting facts about law’ involves pieces of information which can simply be counted, for example, how often one court cites another, or how many statutes there are in a particular country. A number of studies have been conducted in this vein, for example in order to provide benchmarks to measure the quality of legal institutions.38 The counting of such information can also involve specific techniques. For example, a recent article by Maya Berinzon and Ryan Briggs examines the variations of the fading influence of the French criminal code in seven West African countries. The main innovation of this research is that the investigation whether articles of the French and African codes still ‘match’ is not done by hand but with the algorithmic approach of a computer program.39

Second, ‘coding law’ is based on mechanisms which translate the form or substance of legal rules into numbers. For example, we may code countries that have the death penalty as ‘1’ and those that do not as ‘0’. Such codings can then be used for quantitative research about the effectiveness of the death penalty as deterrence or for the reasons underlying the abolition of the death penalty in some countries.40 Empirical researchers call such coding ‘qualitative’ (or ‘categorical’) information that is presented in the form of numbers.41 It is also possible to develop a coding mechanism that considers further nuances and therefore allows intermediate scores, such as 0.5. Here, the coding of the qualitative information aims to be akin to a quantitative ‘interval variable’, ie a variable where the difference between values contains meaningful information.

Such coding methods have featured prominently in comparative company law (discussed in the next section) and comparative constitutional law. In the latter area, two, initially separate, but now intersecting, projects by Tom Ginsburg and colleagues and by Mila Versteeg and others coded the information of codified constitutions of all countries, going back to 1789.42 In coding of constitutional provisions, it is an advantage that there is a relatively distinct set of constitutional rights (freedom of expression, right to vote, prohibition of torture, etc.) which can be comprehensively coded as being available (‘1’) or not available (‘0’). These (p. 860) data can then be used to show, for example, that there is a clear split between ‘libertarian’ and ‘statist’ constitutions but also evidence of convergence.43 Specifically for human rights, it has been found that countries have increased the constitutional protection overall and that this has happened along the lines of international law.44

Third, ‘conducting surveys about the law’ can involve different types of information. Surveys can ask socio-legal questions about the law in action, but they can also concern other topics such as the influence of foreign case law, the nature of legal scholarship or the perceived quality of a country’s law. Depending on the type of data, this may require, as in the previously mentioned category, to develop a mechanism of translating the survey responses into numerical values. For example, a question may ask whether respondents think that a country’s law is sufficiently business friendly and then code the answers of the ordinal variable ‘strongly yes’, ‘weakly yes’, ‘neutral’, ‘weakly no’, and ‘strongly no’ as ‘1’, ‘0.75’, ‘0.5’, ‘0.25’, and ‘0’ in order to produce average scores which can then be compared across countries. Many such surveys have been conducted by academic researchers as well as policy-makers.45 Yet, it remains a challenge to determine how far surveys may be able to show actual differences and similarities in the law, rather than mere perceptions, in a comparative perspective.46

4. Interdisciplinary Research

The interdisciplinary research discussed here goes further than extending the methods of comparative law since comparative legal information becomes ‘just’ one element of a wider project. For example, one can see comparative law as overlapping with other fields of research as other disciplines may also discuss legal similarities and differences within the context of their specific subject, such as comparative politics, comparative economics, comparative sociology, and comparative linguistics.47

This chapter cannot provide a comprehensive treatment of interdisciplinary research relevant to comparative law. It will thus focus on one particularly important aspect: the possible use of quantitative methods and inferential statistics aiming to establish whether there is a causal relationship between law and other factors. Here, the legal information can be the ‘dependent’ variable (ie the variable that the regression analysis tries to explain). For example, one can pursue the question why some countries still have the death penalty while others have abolished it.48 The legal information can also be one of the ‘independent’ (p. 861) (or ‘explanatory’) variables that explain something else. For example, one can seek to explain why some countries have more developed financial markets than others: is it due to differences in law or to other reasons? Let us take this latter question to delve somewhat more deeply into the matter.

The most influential quantitative study on the relationship between legal rules and financial development is the article by Rafael La Porta and his colleagues on ‘Law and Finance’.49 This study coded the law on shareholder and creditor protection across several countries. For instance, with respect to shareholder protection, it used six variables to construct an index for ‘anti-director rights’. Next, La Porta et al looked at forty-nine countries and each legal measure, and calculated an aggregate score for the strength of ‘anti-director rights’ for each of the legal systems. Subsequently they grouped the countries according to ‘legal origins’, with the result that common law jurisdictions had the strongest, and French-type civil law countries the weakest legal protection of shareholders. Finally, the authors drew on these numbers as independent variables for statistical regressions, finding that good shareholder protection leads to more dispersed shareholder ownership, which can be seen as an indicator for developed capital markets.

Many subsequent papers by La Porta and other researchers have used a similar method for other areas of law, for instance, securities regulation and labour law.50 Company law was again addressed in a study on self-dealing transactions by Simeon Djankov and others,51 which was also incorporated in the Doing Business Reports of the World Bank.52 Here, Djankov et al present the complex hypothetical case of a transaction between two companies to lawyers from seventy-two countries, and ask these lawyers to respond to questions such as ‘which body of the companies has to approve the transaction in question?’. Then, they code this information using various indices and sub-indices. Finally, they find that this new dataset also shows differences along the lines of common versus civil law origins; that it predicts stock market development, and that it generally works better than the initial La Porta et al index.

Scholars from management studies, law and other disciplines have identified various technical problems with the La Porta/Djankov et al studies.53 For comparative legal scholarship, a particular point of interest is the finding that the quality of legal institutions varies systematically with the ‘origin’ of a country’s legal system in the English ‘common law’, or the French, German, or Scandinavian ‘civil law’ tradition. Here, a first line of criticism concerns this classification into legal origins. While those relate, to some extent, to the legal families widely recognized in comparative law, they are also cruder because they assume (p. 862) that we can classify all legal systems of the world according to distinct Western-based ‘legal origins’.54 It is also unsatisfactory that the actual classification of legal origins is not based on a robust empirical method. In fact, when one uses quantitative indicators for the main determinants of legal families, it turns out that other categories better capture the diversity of the legal world.55

The causal claims made in the La Porta/Djankov et al studies are also controversial. To begin with, other researchers have challenged the specific effect of legal origins by showing, for example, that a country’s colonial legacy, a competitive party system, and the degree of political stability are what really drive institutional and economic differences.56 More fundamental still is the ‘causality puzzle’: does law influence society or vice versa? The plausible response is that there are multiple causal relationships with various feedback mechanisms.57 Often, it can then be found that the institutions regarded as relevant by today’s economists for development did not precede economic growth in the West, but only emerged after Western countries ‘became rich’.58 In addition, making empirical claims about the effect of law based on comparative time-series data is doubtful: compared to the feasibility of randomized experimental designs in other disciplines, the problem is here that legal differences between countries are not based on a ‘random’ intervention of the researcher but contingent historical circumstances.59

A particular problem is the causal treatment of legal origins. The claim of law and finance research is that there are two causal relationships: (i) between legal origins and the law (eg common law countries having stronger investor rights) and (ii) between the law and financial development (eg stronger investor rights leading to more developed stock markets). However, the combination of these claims is internally inconsistent: the first claim implies that the fortunes of countries are shaped by deep historical contingencies while the second claim suggests the possibility of a ‘quick fix’ through an instrumentalist use of laws.60 In addition, the finding of profound differences between legal origins may indicate that countries of different origins need different institutions, rather than the universal set of rules (p. 863) promoted by law and finance research.61 Moreover, it is crucial to consider how the effect of the similar legal changes can differ: for example, studies have established that familiarity with the transplanted rule matters;62 and that countries with a longer statehood experience are better able to implement transplanted laws than other countries.63

Finally, even assuming the claimed causalities, one can argue that simple reliance on ‘what works’ for financial development is too narrow a perspective. It disregards that legal systems are not only about ‘what works’ also about what is ‘right’.64 For example, if one uses measures of low poverty rates, income equality and social health (rather than the development of financial markets) as dependent variables, civil law countries may well outperform common law jurisdictions.65 Thus, research on causal relationships from other disciplines can be helpful for comparative law, but it does not provide a single and definite answer about the ‘best’ legal rules.

III. Topics of Comparative Law

1. Prologue

As the legal (and non-legal) world changes, so do the topics of comparative law. Applying again the method of content analysis, a variety of terms may indicate these trends. For example, a recent book on comparative constitutional reasoning presents time series with upward trends for the words ‘democracy’, ‘rule of law’, ‘equality’, ‘proportionality’, and ‘human dignity’.66 For present purposes the development of more general key topics of comparative law was evaluated.

Figure 31.2 shows that articles of comparative law have increasingly mentioned the terms ‘legal pluralism’, ‘soft law’, ‘global governance’, and ‘indicators’.67 In this part of this chapter, the discussion of legal pluralism in Section III.2 is considered as an example of a modification of the traditional approach. In Section III.3, on the extending scope, the cosmopolitan dimension of comparative law is seen as reflecting trends towards comparative regional, international, and transnational law. There are also changes at the global level. Here, global governance is one of the key terms discussed in the context of interdisciplinary research. (p. 864) In addition, Section III.4 will refer to the growing use of indicators, a topic that has become a point of interest for research in many academic fields.

New Directions in Comparative Law

Figure 31.2 Evolution of topic-related terms in comparative law articles (as percentage of all comparative law articles)

2. Modifications of Traditional Scope

In traditional comparative law, it is often said that certain areas, such as family law or constitutional law, are not very suitable for a functional comparative analysis because they are heavily influenced by geographical, socio-political, cultural, and other peculiarities.68 However, there are also some examples of functional research from these areas. For instance, in family law, a functional question can be how to help an impoverished spouse after the termination of a marriage: through alimony, family support or state-provided social security?69 And in constitutional law, we can ask the functional question how human rights are protected: through written constitutional law, incorporation of international human rights norms or unwritten rules?70

The debate about the geographic scope of comparative law is somehow similar. Here, it was often assumed that it may not be fruitful to compare Western legal systems with ‘radically different legal cultures’, in particular with countries from the developing world;71 (p. 865) some scholars even suggested that the laws of less-developed systems are ‘more appropriately left to anthropologists and sociologists rather than to lawyers proper’.72 Today, however, even mainstream comparative law would no longer support that position: witness, for example, the new comparative law journals which focus on non-Western countries.73 There are also comparative functional studies that include such ‘radically different countries’. For example, an article by Petra Mahy compares work regulations in Australia and Indonesia and takes as a starting point the common social problem ‘to arrange work in restaurants so as to fulfil the requirements of the business owner to deliver food and service to customers and make a profit while at the same time ensuring a certain level of satisfaction and benefits to workers’.74

Considering legal systems outside the group of wealthy Western countries is bound to lead to some adjustments. For example, according to the general literature on comparative law, it is a characteristic feature of African legal systems that lawyers and law-makers are less influential than in the West, since customary and folk law play an important role.75 Legal scholars from Africa, however, suggest a more fine-grained perspective. Mainly focusing on the countries of Sub-Saharan Africa, they point to the legal pluralism created by the mix of state and customary law, the cross-border nature of some of the customary laws due to the arbitrariness of state borders in Africa, the continuing relevance of mediatory forms of dispute resolution, the role of community interests in customary law, and the post-colonial struggle to reassert one’s own legal tradition.76

The most influential notion here is that of ‘legal pluralism’. With regard to customary law, today the most important dimension of pluralism is the combination of state and non-state legal orders. Pluralism also results from the fact that local and personal non-state laws are not pure but interrelated with the other legal domains, including state law.77 Moreover, scholars have often emphasized that even in mainstream Western legal systems pluralism is widespread. This is not a novelty because in medieval Europe, canon, Roman, feudal, royal, and urban laws, as well as laws based on religious, ethnic, and commercial affiliation, all co-existed in the same territory.78 Today too, Western law is seen as a hybrid, since law obtains (p. 866) its legitimacy ‘from within the cultural, private societies of peoples and not just the public, external, political constitution of the state’.79 As an example, researchers have pointed to the law on assisted suicide: here, apart from positive criminal and medical law, a pluralist understanding also includes the guidelines of medical associations and public prosecutors, and how these are translated into social practice.80

It may be a major challenge for a comparative researcher to consider every element that can contribute to social order, for instance, aspects such as ‘language, customs, moral norms, and etiquette’.81 In the context of comparative law, this challenge is not limited to recent conceptions of legal pluralism; even traditional comparatists have not been not be blind to these factors where they are regarded as relevant for a functional analysis. Yet, it also shows that a mere modification of the traditional scope of comparative laws may simply not be sufficient, as will be discussed in the subsequent sections.

3. Extending Scope

In a traditional analysis of comparative law, research is often limited to the question how a particular issue is dealt with by a small number of countries. Today, however, there are many calls for expanding the scope of comparative law to include regional, international, transnational, and global regimes. The present section will address the growing fields of comparative law and regional, international, and transnational law, while the issue of global law will be discussed in the subsequent section.

The general motivation for an extension beyond the country level is the aspiration for a more cosmopolitan comparative law.82 In the literature, ‘cosmopolitanism’ is typically associated with the Diogenes’ declaration that he was ‘a citizen of the world’.83 Yet, the precise meaning and scope of ‘cosmopolitanism’ is subject to some uncertainty. The statement by Diogenes seems to be descriptive while today’s discussions of cosmopolitanism often also have a normative dimension. The corresponding view of a ‘moral cosmopolitanism’ can be associated with Immanuel Kant’s political philosophy but also with more recent debates about international law, development policy and global justice. There is also the question whether cosmopolitanism refers to universal phenomena. The classical view of Diogenes can be associated with universalism, and there is also the notion of the ‘technocratic universalism’ of international organizations. Yet, today the main position is post-universalist, as in a ‘rooted cosmopolitanism’.84

(p. 867) For comparative law, the idea of cosmopolitanism provides useful guidance for the study of many substantive topics. Like comparative law, cosmopolitanism is interested in global topics without suggesting global uniformity. Thus, on the one hand, it can be used to identify and evaluate changes in the role of the state and of legal families, as in ‘the idea that human beings can belong anywhere, humanity has shared predicaments and we find our community with others in exploring how these predicaments can be faced in common’.85 On the other hand, cosmopolitanism is not naïve about universalism. Thus, it is consistent with a cosmopolitan approach to consider not only the global level but also to reflect upon the ‘cosmopolitan state’ and upon other ways in which global (as well as international, regional, or transnational) and the local elements interact in a pluralist way.86

With these considerations in mind, let us turn to the way comparative law can embrace regional, international, and transnational laws.

First, regional cooperation, while not a new phenomenon, became more widespread after the World War II.87 Some observers have even suggested that we are faced with a paradigm shift from the Westphalian world order of sovereign states to a regional world order.88 The comparison of these reasons has been pursued from a variety of perspectives, such as the reasons why they have been established,89 their scope of cooperation (single or multiple topics), the formalization of their structure (organization or network), and the depth and success of their operation (cooperation or integration).90 A popular topic has also been whether the design of regional legal structures is based on foreign models;91 a frequently mentioned example of broad diffusion is here the spread of regional courts modelled after the European Court of Justice.92

Comparative studies have also focused on the relationship between the regional organizations and their member states. For example, if these states hail from both common and civil law countries, the question is whether and how harmonization can bridge the divide between these legal families.93 More generally, it can also be observed that an analysis (p. 868) of both the country and the regional level becomes fairly complicated (but possibly also more interesting) as the researcher has to compare the state laws, the relationship between them and regional law, as well as the triangular relationship between state and regional courts in applying these laws.94

Second, comparative international law often poses related questions. Here the growing literature often distinguishes between a vertical and a horizontal dimension.95 Vertical comparative international law can mean the comparison of domestic and international law.96 For example, in environmental law, it may be possible to compare, with functional tools, domestic rules with international ones not yet implemented by the respective country;97 this can also entail suggestions of ‘downward’ or ‘upward diffusion’ of legal models.98 Another vertical form starts with a question concerning rules of international law and then uses domestic law in order to understand them. Here the most prominent example is the provision that the International Court of Justice shall apply ‘the general principles of law recognized by civilized nations’, with scholars discussing how comparative law can be of help in this endeavour.99

Horizontal comparative international law can, on the one hand, compare units on the international level. Making such comparisons has become particularly relevant due to the increased fragmentation of international law.100 Here, the methods and tools of comparative law can be useful, for example, a functional approach incorporating quantitative methods, a critical approach comparing power structures or perspectives on the diffusion of law and legal transplants.101 On the other hand, comparison can focus on the law of states, (p. 869) just as in conventional comparative law, yet with the aim to use it for the understanding and development of international law. Research can also focus on the attitude of national actors towards international law, for example, whether the states’ varying commitment to international courts reflects differences between legal families.102

Third, transnational law has also become increasingly important for comparative law. To be sure, the definition of transnational law is a problem in its own right. A helpful starting point can be the definition of transnational commercial law as the set of rules, from whatever source, which govern international commercial transactions and which are common to at least a significant number of legal systems, and which include, for instance, unwritten customs, contractually incorporated rules and trade terms promulgated by international organizations, standard term contracts, and restatements drafted by scholars.103 Thus, transnational law includes a variety of legal norms that go beyond traditional forms of state, regional, and international law. In recent years, the discussion has been expanded to other areas beyond the commercial realm, for example, to the transnational elements of constitutional, sports, environmental, and disaster response law.104

Transnational law’s relative independence from state law105 constitutes a challenge for comparative law—its rise renders the comparison of laws on the state level increasingly incomplete and in some areas perhaps even obsolete. Yet, scholars have also suggested that ‘the flexibility of comparative methodology may be an asset in today’s transnational legal world’,106 at least when we go beyond the traditional methods.107 For example, the concept of legal families may gain new relevance when we observe that common law countries may be more receptive to soft forms of transnational law than civil law countries.108 Still, other and new concepts may also be needed to analyze transnational law. For example, a (p. 870) major issue is the often challenged legitimacy of transnational norms.109 There is also a growing literature that discusses (and compares) the processes that create these norms.110

4. Interdisciplinary Research

By its very nature, interdisciplinary research is diverse and can therefore steer comparative law into different substantive directions. Again, we will select some of ‘new directions’ here, continuing some of the themes discussed in the previous sections. Specifically, we will address how the debates and trends of global governance, justice, development, and indicators have influenced comparative law.

It has frequently been noted that recent years have seen a ‘hollowing out’ and a ‘disaggregation’ of the state.111 This is partly due to changes at the international level but it concerns not only (or even predominantly) conventional rules of international law. Today, in an era of ‘transgovernmentalism’, international interaction takes place not only between governments but also between courts, regulatory agencies, and other public bodies.112 The interdependence of societies challenges traditional notions of national sovereignty: states have no choice but to collaborate, not only through international treaties, but also through more complex intergovernmental forms of global governance.113 This collaboration includes the use of soft law, a concept which can encompass not only norms which are not strictly speaking binding but also all norms which are not enforceable (even if they are in the form of a formal legal source).114 Moreover, given the power of multinational companies, credit agencies, investment funds, audit firms, and other private organizations, some scholars expect that market forces, private regulatory bodies, contractual relationship (p. 871) and dispute resolution by arbitration are bound to become the dominant forms of order in a ‘borderless world’.115

In order to research such forms of governance in a comparative context, disciplines other than comparative law must come into play. As far as the divide between law and non-law becomes increasingly blurred, sociology and management studies have often analyzed the phenomena in question. Political science and philosophy can also play an important role. For example, one paper compares how far rules of transnational law are mainly due to the influence of states, firms, or non-governmental organizations.116 From a more normative perspective, the debate about global constitutionalism and global justice evaluates how accountability and fairness can be conceptualized and implemented globally.117 Indeed, the notion of ‘global law’ can be understood as referring to the body of rules that reflect the ‘publicness of law’ in a global space, such as the aspiration for ‘justice as it affects humanity as a whole’ and the need to tackle global environmental problems.118

A related interdisciplinary field is development policy. While it has largely been ignored by traditional comparative law, it can be associated with some of its core themes, such as legal transplants, convergence of laws, and legal pluralism. In development economics, for example, there is a rich literature that, on the one hand, evaluates conceptually how good policies (including good laws) can foster economic development, and that, on the other hand, analyzes empirically whether reforms of legal rules and institutions (eg courts) have a positive impact on a country’s development.119 Comparative legal scholars who take part in this debate are often more skeptical than scholars from other fields. For example, comparatists have pointed out that law is not just a technical device that can be imposed ‘top-down’ but that it is also needs to reflect a legal system’s ‘common identity’ and ‘sense of justice’.120 A more politically charged variant of this criticism associates a technocratic, top-down, approach (p. 872) with post-colonialism and neo-imperialism, referring to this approach as a form of plunder by hegemonic international actors.121

Finally, the topic of global social indicators also relates to the other themes discussed in this section. These indicators are numerical benchmarks for policy-making. They have proliferated in recent years and address a variety of topics. For example, some deal with good governance and the rule of law, such as the Corruption Perception Index and the various indicators by the World Bank; some pertain to personal rights and economic freedom, such as the World Press Freedom Index and the Global Competitiveness Report; some address human development and political stability, such as the Human Development Index and the Country Risk Index; and some reflect the performance of commercial and educational entities, such as the UN Global Compact and the various global university rankings.122

One of the most important comparative legal indicators is the Doing Business Report of the World Bank, annually updated since 2004. In its current version, the Doing Business Report examines eleven areas of law and ranks legal systems accordingly.123 The data are described as ‘objective measures of business regulations’ and most of the sub-categories use codings of legal rules and practices, as developed by La Porta/Djankov et al.124 These reports have been highly influential as the World Bank can use the numerical benchmarks to put pressure on developing and transition economies. In these rankings, common law countries usually perform very well, while countries of the French civil law tradition do much more poorly. French lawyers have therefore accused the World Bank of a common law bias, challenging the methods and findings of the Doing Business Reports, as well as the very idea that law is just an instrument for ‘doing business’.125

The normative goal of these indicators links up with comparative law’s aim to provide policy recommendations.126 In this context, it can be helpful to consider non-legal research on the effect and the effectiveness of the Doing Business Reports. For example, such research has found that while, over time, many civil law countries belonging to the French tradition have improved in many of the Doing Business indicators, these improvements cannot be related to improvements in the real economy.127 Similarly, it is not clear whether the Doing Business ranking has an impact on the overall aid a country receives.128 It has also been (p. 873) observed that the popularity of the Doing Business Reports is, to a significant extent, due to the involvement of experts, professionals and academics.129 This latter observation is related to the wider debate about the legitimacy of indicators130—again an area where comparative law can expand its research by including insights from other disciplines.

IV. Conclusion

In exploring various ‘new directions in comparative law’, this chapter has shown that the field of comparative law has become more diverse, both in its methods and by turning its attention to new topics. These changes have occurred, first, as traditional comparative law has increasingly allowed modifications to functionalism and has expanded its reach beyond ‘just’ Western-based state laws. But comparative law has also, second, ventured into new terrain, for example, by more readily accepting quantitative methods and by turning its attention to the comparison of regional, international, and transnational law. Third, there is an increase in interdisciplinary research on topics of comparative law; this chapter has provided some examples from economics and political science, discussing research that aims to establish causal relationships on the one hand and to assess new forms of global governance on the other.

Thus, the overall trend is that comparative law has broadened both its methodological tool box and its substantive perspective. One can regard this as a kind of centrifugal effect: apparently, there is much interest in comparative law but also considerable dissatisfaction with the established core, and in combination, these elements drive the exploration of new methods and themes. Yet, there are also centripetal forces at work, reaffirming the traditional status quo of a more confined core of comparative law.

It is also worth asking whether it really matters if certain methods and topics are subsumed under the heading of ‘comparative law’.131 Other labels for legal research beyond domestic law have become increasingly common, such as global and transnational law. For teaching purposes, there is also the model of a ‘transsystemic approach’ which abandons the traditional attachment to a specific jurisdiction and deals with problems in a way that transcends legal traditions.132 Finally, one may wonder whether comparative law is becoming the victim of its own success. Today’s comparative law is at the forefront of many topical questions, such as the interaction between multiple layers of norms, the mixture of different legal cultures, and the increasing diversity of forms of soft and hard law. Thus, it is bound to be of interest for lawyers and legal scholars who do not regard themselves as specifically engaged in comparative law; as a result, many topics that today belong to ‘comparative law’ may ‘just’ become part of research and teaching on ‘law’.

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Notes:

(1) Anne Peters and Heiner Schwenke, ‘Comparative Law Beyond Post-modernism’ (2000) 49 ICLQ 800, 829. See also Ugo Mattei, ‘The Cold War and Comparative Law: A Reflection on the Politics of Intellectual Discipline’ (2017) 65 AJCL 567.

(2) See eg from a critical perspective, Reza Banakar, ‘Review Essay: Power, Culture and Method in Comparative Law’ (2009) 5 International Journal of Law in Context 69, 73; Pierre Legrand, ‘Negative Comparative Law’ (2015) 10 Journal of Comparative Law 405.

(3) Sometimes called ‘comparative legal studies’, see eg David Nelken, ‘Comparative Law and Comparative Legal Studies’, in Esin Örücü and David Nelken (eds), Comparative Law: A Handbook (2007), 3; Pierre Legrand and Roderick Munday (eds), Comparative Legal Studies: Traditions and Transitions (2003).

(4) Eg Günter Frankenberg, Comparative Law as Critique (2016), 13 (comparative law ‘offers perfect platform’ for interdisciplinarity); Geoffrey Samuel, ‘All that Heaven Allows: Are Transnational Codes a “Scientific Truth” or Are They Just a Form of Elegant “Pastiche”?’, in Pier Giuseppe Monateri (ed), Methods of Comparative Law (2012) 165, 190 (comparatist has ‘by definition to be interdisciplinary’); Peters and Schwenke (n 1), 832 (full understanding requires a comprehensive and interdisciplinary approach).

(5) As a baseline, this analysis identifies the number of journal articles that mention the phrase ‘comparative law’ at least five times; thus, these articles are treated as belonging to the field of comparative law. Subsequently, it has been searched whether further terms were mentioned at least twice in each of these journal articles; thus, this is treated as an indicator that certain concepts and topics are used within the context of comparative law articles. The corresponding Westlaw search term is, eg: (ATLEAST5(‘comparative law’) AND ATLEAST2(‘functionalism’)) & DA(aft 1-1-2015 & bef 1/1/2017)).

(6) Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (transl Tony Weir, 3rd edn, 1998), 33; John Henry Merryman, The Loneliness of the Comparative Lawyer—And Other Essays in Foreign and Comparative Law (1999), 3.

(7) Apart from this book, for example, Pier Giuseppe Monateri (ed), Methods of Comparative Law (2012); David S. Clark (ed), Comparative Law and Society (2012); Esin Örücü and David Nelken (eds), Comparative Law: A Handbook (2007).

(8) For example, Catherine Valcke, Comparing Law (2018); Mathias Siems, Comparative Law (2nd edn, 2018); Jaakko Husa, A New Introduction to Comparative Law (2015); Geoffrey Samuel, An Introduction to Comparative Law Theory and Method (2014).

(9) Raw data for all articles: 102, 317, 443, 595, 555, 143. For ‘functionalism’: 2, 6, 12, 35, 36, 7. For ‘quantitative’: 1, 18, 23, 38, 37, 14. For ‘interdisciplinary’: 2, 26, 38, 63, 46, 17. For ‘causality’: 1, 0, 5, 6, 6, 4.

(10) For sociology see eg Gabriel Abend, Caitlin Petre, and Michael Sauder, ‘Styles of Causal Thought: An Empirical Investigation’ (2013) 119 American Journal of Sociology 602.

(11) For example, Markus Müller-Chen, Christoph Müller, and Corinne Widmer Lüchinger, Comparative Private Law (2015), 68–95, 426–7; Peter de Cruz, Comparative Law in a Changing World (3rd edn, 2007), 242–5; Zweigert and Kötz (n 6) 1–47.

(12) Similarly, Mathias Reimann, ‘The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century’ (2002) 50 AJCL 671.

(13) Its role is therefore the ‘functionalist identification’ at the preparatory stage of the comparative analysis, see Marieke Oderkerk, ‘The Need for a Methodological Framework for Comparative Legal Research: Sense and Nonsense of “Methodological Pluralism” in Comparative Law’ (2015) 79 RabelsZ 589, 596; Catherine Valcke and Matthew Grellette, ‘Three Functions of Function in Comparative Legal Studies’, in Maurice Adams and Dirk Heirbaut (eds), The Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke (2014), 99, 101. For other forms of functionalism, see Ralf Michaels, Chapter 13 in this volume.

(14) For those see eg Fernanda Pirie, The Anthropology of Law (2013), 76, 127–8, 227; Oliver Brand, ‘Conceptual Comparison: Towards a Coherent Methodology of Comparative Legal Studies’ (2007) 32 Brooklyn Journal of International Studies 405, 415; Husa (n 8) 125.

(15) Zweigert and Kötz (n 6), 40 (‘presumption that the practical results are similar’); Merryman (n 6), 9 (‘as a rule’ civil and common law ‘produce similar results in like cases’);

(16) See also Siems (n 8), 45–6.

(17) For example, in ‘the West’ they are predominantly seen as ‘legal’ texts, while in transition countries they may be regarded as aspirational documents, see Günter Frankenberg, ‘Comparing Constitutions: Ideas, Ideals, and Ideology—Toward a Layered Narrative’ (2006) 4 International Journal of Constitutional Law 439. For the quantitative work on convergence in constitutional law see Section II.3.

(18) Annelise Riles, ‘From Comparison to Collaboration: Experiments with a New Scholarly and Political Form’ (2015) 78 Law and Contemporary Problems 147, 155.

(19) Oderkerk (n 13), 610 (as a tertium comparationis); Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ [2015] Law and Method 1, 28 (as akin to ‘second-order language’).

(20) John Bell, ‘Legal Research and the Distinctiveness of Comparative Law’, in Mark Van Hoecke (ed), Methodologies of Legal Research (2011), 155, 170.

(21) See William Twining, Globalisation and Legal Theory (2000), 187–8.

(22) Uriel Procaccia, Russian Culture, Property Rights and the Market Economy (2007).

(23) Menachem Mautner, Law & The Culture of Israel (2011), 1.

(24) Roberta Rosenthal Kwall, The Myth of the Cultural Jew: Culture and Law in Jewish Tradition (2015), xiii (challenging the notion of a secular Jewish culture).

(25) Jennifer Hendry, ‘Legal Comparison and the (Im)possibility of Legal Translation’, in Simone Glanert (ed), Comparative Law: Engaging Translation (2014), 87, 89.

(26) Sir Basil Markesinis and Jörg Fedtke, Engaging with Foreign Law (2009), 44; Esin Örücü, ‘Comparative Law in Practice: The Courts and the Legislator’, in Esin Örücü and David Nelken (eds), Comparative Law: A Handbook (2007), 411, 426.

(27) De Cruz (n 11) 220; Sofie M. F. Geeroms, ‘Comparative Law and Legal Translation: Why the Terms Cassation, Revision and Appeal Should Not Be Translated …’ (2002) 50 AJCL 201.

(28) For details see eg Simone Glanert (ed), Comparative Law: Engaging Translation (2014); Barbara Pozzo, ‘Comparative Law and Language’, in Mauro Bussani and Ugo Mattei (eds), The Cambridge Companion to Comparative Law (2012), 88; Marcus Galdia, Legal Linguistics (2009), 224–37.

(29) Siems (n 8), Part 2.

(30) See Ugo Mattei, Chapter 29, and Annelise Riles, Chapter 28, in this volume.

(31) See also Siems (n 8), 144–5.

(32) For a similar terminology, see Mark Van Hoecke, ‘Deep Level Comparative Law’, in Mark Van Hoecke (ed), Epistemology and Methodology of Comparative Law (2004), 165.

(33) For further details of this distinction see Siems (n 8), 115–46.

(34) See David Nelken, ‘Comparative Legal Research and Legal Culture: Facts, Approaches, and Values’ (2016) 12 Annual Review of Law and Social Science 45. For legal culture, see also Roger Cotterrell, Chapter 25 in this volume.

(35) Siems (n 8), 150–6.

(36) See eg Erhard Blankenburg and Bert Niemeijer, ‘Push and Pull of Judicial Demand and Supply’, in Michèle Schmiegelow and Henrik Schmiegelow (eds), Institutional Competition between Civil and Common Law: Theory and Policy (2014), 299 (with references to previous research); CEPEJ (European Commission for the Efficiency of Justice), Efficiency and Quality of Judicial Systems (2018), available at <http://www.coe.int/t/dghl/cooperation/cepej/default_en.asp>.

(37) Siems (n 8), 180–3. For an earlier discussion, see Mathias Siems, ‘Numerical Comparative Law—Do We Need Statistical Evidence in Law in Order to Reduce Complexity?’ (2005) 13 Cardozo Journal of International and Comparative Law 521.

(38) For example, by measuring and comparing the speed of trials: Simeon Djankov, Rafael La Porta, Florencio Lopez-de-Silanes, and Andrei Shleifer, ‘Courts’ (2003) 118 Quarterly Journal of Economics 453.

(39) Maya Berinzon and Ryan C. Briggs, ‘Legal Families without the Laws: The Fading of Colonial Law in French West Africa’ (2016) 64 AJCL 329.

(40) See the research discussed in Section II.4.

(41) See Lee Epstein and Andrew D. Martin, An Introduction to Empirical Legal Research (2014), 120–3.

(42) The data are available at <http://comparativeconstitutionsproject.org/>. These studies can also be related to calls to make constitutional law more interdisciplinary, see Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (2014).

(43) David S. Law and Mila Versteeg, ‘The Evolution and Ideology of Global Constitutionalism’ (2011) 99 California Law Review 1163.

(44) Zachary Elkins, Tom Ginsburg, and Beth Simmons, ‘Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice’ (2013) 54 Harvard International Law Journal 61.

(45) For example, Jonathan Jackson et al, ‘Developing European Indicators of Trust in Justice’ (2011) 8 European Journal of Criminology 267; Project on Measuring Justice, available at <http://www.hiil.org/audiences/justice-needs-satisfaction-tool>.

(46) See Siems (n 8), 217–20.

(47) For an example of such cross-disciplinary comparative research, see Linda Hantrais, International Comparative Research: Theory, Methods and Practice (2009).

(48) See eg John J. Donohue and Justin Wolfers, ‘Uses and Abuses of Empirical Evidence in the Death Penalty Debate’ (2006) 58 Stanford Law Review 791; David Greenberg and Valerie West, ‘Siting the Death Penalty Internationally’ (2008) 33 Law and Social Inquiry 295.

(49) Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert Vishny, ‘Law and Finance’ (1998) 106 Journal of Political Economy 1113.

(50) Rafael La Porta, Florencio Lopez-de-Silanes, and Andrei Shleifer, ‘What Works in Securities Laws’ (2006) 61 Journal of Finance 1; Juan Botero, Simeon Djankov, Rafael La Porta, Florencio Lopez-de-Silanes, and Andrei Shleifer, ‘The Regulation of Labor’ (2004) 119 Quarterly Journal of Economics 1340. See also Rafael La Porta, Florencio Lopez-de-Silanes, and Andrei Shleifer, ‘The Economic Consequences of Legal Origins’ (2008) 46 Journal of Economic Literature 285; Gerhard Schnyder, Mathias Siems and Ruth V. Aguilera, ‘Twenty Years of “Law and Finance”: Time to Take Law Seriously’ (forthcoming) Socio-Economic Review, early view at https://academic.oup.com/ser/advance-article/doi/10.1093/ser/mwy041/5156181.

(51) Simeon Djankov, Rafael La Porta, Florencio Lopez-de-Silanes, and Andrei Shleifer, ‘The Law and Economics of Self-Dealing’ (2008) 88 Journal of Financial Economics 430.

(52) These reports are discussed in Section III.4.

(53) See generally Siems (n 8), 208–12.

(54) Mathias Siems, ‘Legal Origins: Reconciling Law & Finance and Comparative Law’ (2007) 52 McGill Law Journal 55. See also Nuno Garoupa and Mariana Pargendler, ‘A Law and Economics Perspective on Legal Families’ (2014) 7 European Journal of Legal Studies 36, 60 (lack of sound theory).

(55) Mathias Siems, ‘Varieties of Legal Systems: Towards a New Global Taxonomy’ (2016) 12 Journal of Institutional Economics 579.

(56) For example, Daniel M. Klerman, Paul G. Mahoney, Holger Spamann, and Mark I. Weinstein, ‘Legal Origin or Colonial History?’ (2011) 3 Journal of Legal Analysis 379; Barry R. Weingast, ‘Why Developing Countries Prove so Resistant to the Rule of Law’, in James J. Heckman, Robert L. Nelson, and Lee Cabatingan (eds), Global Perspectives on the Rule of Law (2010), 27; Mark J. Roe and Jordan I. Siegel, ‘Political Instability: Effects on Financial Development, Roots in the Severity of Economic Inequality’ (2011) 39 Journal of Comparative Economics 279.

(57) See eg Masahiko Aoki, ‘Historical Sources of Institutional Trajectories in Economic Development: China, Japan and Korea Compared’ (2013) 11 Socio-Economic Review 233, 235–6 (institutions as co-evolving with economic-demographic variables).

(58) Ha-Joon Chang, ‘Institutions and Economic Development: Theory, Policy and History’ (2011) 7 Journal of Institutional Economics 473, 476 (referring to examples such as IP rights, limited liability and central banking).

(59) Holger Spamann, ‘Empirical Comparative Law’ (2015) 11 Annual Review of Law and Social Science 131, 141.

(60) Christopher A. Whytock, ‘Legal Origins, Functionalism, and the Future of Comparative Law’ [2009] Brigham Young University LR 1879, 1902.

(61) See Chang (n 58), 486 (as a problem of sample heterogeneity of econometric studies).

(62) See Daniel Berkowitz, Katharina Pistor, and Jean-François Richard, ‘The Transplant Effect’ (2003) 51 AJCL 163.

(63) James B. Ang and Per G. Fredriksson, ‘Statehood Experience, Legal Traditions and Climate Change Policies’ (2017) 55 Economic Inquiry 1511–37.

(64) Cf David Nelken, Comparative Criminal Justice (2010), 26 (‘in Anglo-American countries something is right because it works; in other countries a response works because it is right’).

(65) John Ferguson, David Power, Lorna Stevenson, and David Collison, ‘Shareholder Protection, Income Inequality and Social Health: A Proposed Research Agenda’ (2017) 41 Accounting Forum 253; Jeffrey Sachs, Common Wealth: Economics for a Crowded Planet (2008), 258.

(66) András Jakab, Arthur Dyevre, and Giulio Itzcovich, ‘Conclusion’, in András Jakab, Arthur Dyevre, and Giulio Itzcovich (eds), Comparative Constitutional Reasoning (2017), 761, 785.

(67) Raw data for all articles: 102, 317, 443, 595, 555, 143. For ‘legal pluralism’: 4, 11, 28, 57, 46, 14. For ‘cosmopolitan’: 0, 8, 17, 28, 27, 10; for ‘global governance’: 0, 1, 6, 15, 20, 17; for ‘indicators’: 2, 7, 11, 23, 33, 6.

(68) Harold C. Gutteridge, Comparative Law: An Introduction to the Comparative Method of Legal Study and Research (1949), 29, 32, 73. For family law, see also Jens M. Scherpe, Chapter 39 in this volume.

(69) Esin Örücü, ‘Methodological Aspects of Comparative Law’ (2006) 8 European Journal of Law Reform 29, 33.

(70) Cheryl Saunders, ‘Towards a Global Constitutional Gene Pool’ (2009) 4 National Taiwan University Law Review 1, 13. See also Francesca Bignami, ‘Formal versus Functional Method in Comparative Constitutional Law’ (2016) 53 Osgoode Hall LJ 442.

(71) For example, Jerome Hall, Comparative Law and Social Theory (1963), 102–3; Frederick H. Lawson, Selected Essays, Volume II: The Comparison (1977), 65; also de Cruz (n 11), 226–7 (legal systems must be at the same stage of legal, political, and economic development).

(72) Markesinis and Fedtke (n 26), 46.

(73) For example, the Asian Journal of Comparative Law (from 2006), the Chinese Journal of Comparative Law (from 2013), and the Journal of Comparative Law in Africa (from 2014).

(74) Petra Mahy, ‘The Functional Approach in Comparative Socio-Legal Research: Reflections Based on a Study of Plural Work Regulation in Australia and Indonesia’ (2016) 12 International Journal of Law in Context 420 (but also mix with other methods). See also John H. Barton, James Lowell Gibbs Jr, Victor H. Li, and John Henry Merryman, Law in Radically Different Cultures (1983).

(75) See eg Rodolfo Sacco, ‘Mute Law’ (1995) 43 AJCL 455; H. Patrick Glenn, Legal Traditions of the World (5th edn, 2014), 63 (but also 83–5: no pure chthonic traditions in the world today).

(76) See eg Tinenenji Banda, ‘Sub-Saharan African Legal Traditions’, in James D. Wright (ed), International Encyclopedia of the Social & Behavioral Sciences (2nd edn, 2015), vol 23, 654–9; Salvatore Mancuso and Charles M. Fombad (eds), Comparative Law in Africa: Methodologies and Concepts (2015); Oche Onazi (ed), African Legal Theory and Contemporary Problems: Critical Essays (2014).

(77) Anne Griffiths, ‘Law, Space, and Place: Reframing Comparative Law and Legal Anthropology’ (2009) 34 Law and Social Inquiry 495, 503.

(78) David Goldman, Globalisation and the Western Legal Tradition: Recurring Patterns of Law and Authority (2008), 38; Paul Schiff Berman, ‘The New Legal Pluralism’ (2009) 5 Annual Review of Law and Social Science 225, 227. See also Brian Z. Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2008) 30 Sydney Law Review 375, 377–81.

(79) Goldman, ibid., 51.

(80) John Griffiths, Heleen Weyers, and Mauric Adams, Euthanasia and Law in Europe (2008); Adam McCann, ‘Comparing the Law and Governance of Assisted Dying in Four European Nations’ (2015) 2 European Journal of Comparative Law and Governance 37.

(81) Brian Z. Tamanaha, A General Jurisprudence of Law and Society (2001), 180; also Tamanaha (n 78), 390–1 (criticizing legal pluralism as a ‘troubled concept’).

(82) See also Siems (n 8), 404–6.

(83) For the following see eg Angela Taraborelli, Contemporary Cosmopolitanism (2015); Gerard Delanty (ed), Routledge Handbook of Cosmopolitanism Studies (2012); Robert Fine, Cosmopolitanism (2007).

(84) Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers (2006) and see Jedidiah J. Kroncke, The Futility of Law and Development: China and the Dangers of Exporting American Law (2016), 235 (contrasting ‘technocratic universalism’ and ‘true cosmopolitanism’).

(85) Fine (n 83) X.

(86) H. Patrick Glenn, The Cosmopolitan State (2013); Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (2012) (‘cosmopolitan pluralist approach’).

(87) See eg Christina J. Schneider, ‘The Political Economy of Regional Integration’ (2017) 20 Annual Review of Political Science 229; Francesco Duina and Sonia Morano-Foadi, ‘Introduction: The Institutionalisation of Regional Trade Agreements Worldwide: New Dynamics and Future Scenarios’ (2011) 17 European Law Journal 561.

(88) Luk van Langenhove, Building Regions: The Regionalization of the World Order (2011), 127.

(89) See eg John Ravenhill, ‘Regional Trade Agreements’, in John Ravenhill (ed), Global Political Economy (6th edn, 2017), 141; Mirielle Delmas-Marty, Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World (2009), 82–5.

(90) See Philippe De Lombaerde, ‘Comparing Regionalisms: Methodological Aspects and Considerations’, in Timothy M. Shaw, J. Andrew Grant, and Scarlett Cornelissen (eds), The Ashgate Research Companion to Regionalisms (2011), 31, 33, 41.

(91) See eg the contributions in Philippe De Lombaerde and Michael Schulz (eds), The EU and World Regionalism: The Makability of Regions in the 21st Century (2009).

(92) Karen J. Alter, ‘The Global Spread of European Style International Courts’ (2012) 35 West European Politics 135; Karen J. Alter, Laurence R. Helfer, and Osvaldo Saldías, ‘Transplanting the European Court of Justice: The Experience of the Andean Tribunal of Justice’ (2012) 60 AJCL 629.

(93) See eg Vicenzo Zeno-Zencovich and Noah Vardi, ‘European Union Law as a Legal System in a Comparative Perspective’ (2008) 19 European Business Law Review 243; Salvatore Mancuso, ‘The New African Law: Beyond the Difference Between Common Law and Civil Law’ (2008) 14 Annual Survey of International & Comparative Law 1, Art. 4.

(94) Jule Mulder, EU Non-Discrimination Law in the Courts: Approaches to Sex and Sexualties Discrimination in EU Law (2017), 7 (triangular relationship between domestic and European courts in non-discrimination law). See also Jule Mulder, ‘New Challenges for European Comparative Law: The Judicial Reception of EU Non-Discrimination Law and a Turn to a Multi-layered Culturally-informed Comparative Law Method for a better Understanding of the EU Harmonization’ (2017) 18 German Law Journal 721.

(95) For an overview see Siems (n 8), 289–301. For details see Anthea Roberts,‎ Paul B. Stephan, Pierre-Hugues Verdier, and Mila Versteeg (eds), Comparative International Law (2018).

(96) Aleksandar Momirov and Andria Naudé Fourie, ‘Vertical Comparative Law Methods: Tools for Conceptualising the International Rule of Law’ (2009) 2 Erasmus Law Review 291.

(97) Saskia Vermeylen, ‘Comparative Environmental Law and Orientalism: Reading Beyond the “Text” of Traditional Knowledge Protection’ (2015) 24 Review of European Community and International Environmental Law 304.

(98) Valentina Vadi, ‘The Migration of Constitutional Ideas to Regional and International Economic Law: The Case of Proportionality’ (2015) 35 Northwestern Journal of International Law & Business 557; Anna Dolidze, ‘Bridging Comparative and International Law: Amicus Curiae Participation as a Vertical Legal Transplant’ (2015) 26 European Journal of International Law 851.

(99) ICJ Statute, Art. 38(1)(c) and, eg Katerina Linos, ‘How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics’ (2015) 109 American Journal of International Law 475; Jaye Ellis, ‘General Principles and Comparative Law’ (2011) 22 European Journal of International Law 949.

(100) William E. Butler, ‘Comparative International Law’ (2015) 10 Journal of Comparative Law 241, 250.

(101) For examples, see Tomer Broude, Yoram Z. Haftel, and Alexander Thompson, ‘Who Cares About Regulatory Space in BITs? A Comparative International Approach’, in Roberts et al (n 95) 527; Nesrine Badawi, ‘Regulation of Armed Conflict: Critical Comparativism’ (2016) 37 Third World Quarterly 1990; Lorenzo Cotula, ‘Expropriation Clauses and Environmental Regulation: Diffusion of Law in the Era of Investment Treaties’ (2015) 24 Review of European Community & International Environmental Law 278.

(102) Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier, and Mila Versteeg, ‘Comparative International Law: Framing the Field’ (2015) 109 American Journal of International Law 467, 469; Sara McLaughlin Mitchell and Emilia Justyna Powell, Domestic Law Goes Global: Legal Traditions and International Courts (2011) (for the example).

(103) Roy Goode, Herbert Kronke, and Ewan McKendrick, Transnational Commercial Law: Text, Cases, and Materials (2nd edn, 2015), para 1.02; also paras 1.55–1.62.

(104) Vicki C. Jackson, Constitutional Engagement in a Transnational Era (2010); Antoine Duval, ‘Lex Sportiva: A Playground for Transnational Law’ (2013) 19 European Law Journal 822; Eric A. Feldman and Chelsea Fish, ‘Governing Disasters: The Challenge of Global Disaster Law and Policy’, in Francesca Bignami and David Zaring (eds), Comparative Law and Regulation: Understanding the Global Regulatory Process (2016), 539–70.

(105) For the disagreement between ‘transnationalists’ and ‘traditionalists’ see eg Peer Zumbansen, ‘Transnational Law’, in Jan Smits (ed), Elgar Encyclopaedia of Comparative Law (2nd edn, 2012), 904.

(106) Husa (n 8), 55. See also Ralf Michaels, ‘Transnationalizing Comparative Law’ (2016) 23 Maastricht Journal of European and Comparative Law 352.

(107) See Peer Zumbansen, ‘Transnational Comparisons: Theory and Practice of Comparative Law as a Critique of Global Governance’, in Maurice Adams and Jacco Bomhoff (eds), Practice and Theory in Comparative Law (2012), 186, 191–2 (limits for traditional comparative method); Jean-Bernard Auby, Globalisation, Law and the State (2017), 144 (‘transforming comparative law methods’).

(108) Silvia Fazio, The Harmonization of International Commercial Law (2007), 234. Similarly, Jean-François Gaudreault-DesBiens, ‘Religious Courts, Personal Federalism, and Legal Transplants’, in Rex Ahdar and Nicholas Aroney (eds), Shari’a in the West (2010), 171–2 (for recognition of Sharia-based adjudication in common and civil law).

(109) See eg Walter Mattli, ‘Beyond the State?: Are Transnational Regulatory Institutions Replacing the State?’, in Stephan Leibfried, Evelyne Huber, Matthew Lange, Jonah D. Levy. and John D. Stephens (eds), The Oxford Handbook of Transformations of the State (2015), 286, 287; Larry Catá Backer, ‘Governance Without Government: An Overview’, in Günther Handl, Joachim Zekoll, and Peer Zumbansen (eds), Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (2012), 87, 95–6. See also Horatia Muir Watt, Chapter 21 in this volume.

(110) Often using the term ‘transnational legal order’ (or ‘transnational legal ordering’), see Gregory Shaffer, ‘Theorizing Transnational Legal Ordering’ (2016) 12 Annual Review of Law and Social Science 231; Gregory Shaffer (ed), Transnational Legal Ordering and State Change (2013); see also Susan Block-Lieb and Terrence C. Halliday, Global Lawmakers: International Organizations in the Crafting of World Markets (2017).

(111) Neil M. Coe, Philip F. Kelly, and Henry W. C. Yeung, Economic Geography: A Contemporary Introduction (2nd edn, 2013), 17; Berman (n 86), 236. Others use related terms, see eg Martin van Creveld, The Rise and Decline of the State (1999) and Susan Strange, The Retreat of the State. The Diffusion of Power in the World Economy (1996).

(112) See Richard K. Gordon, ‘On the Use and Abuse of Standards for Law: Global Governance and Offshore Financial Centers’ (2010) 88 North Carolina Law Review 501, 507; Anne-Marie Slaughter, ‘The Real New World’ (1997) 76 Foreign Affairs 183, 184; Chris Brummer, Minilateralism: How Trade Alliances, Soft Law, and Financial Engineering are Redefining Economic Statecraft (2014), 20.

(113) See eg Sol Picciotto, Regulating Global Corporate Capitalism (2011); Eve Darian-Smith, Laws and Societies in Global Contexts: Contemporary Approaches (2013), 177–8.

(114) Laszlo Blutman, ‘In the Trap of a Legal Metaphor: International Soft Law’ (2010) 59 ICLQ 605, 606.

(115) See Gralf-Peter Calliess and Hermann B. Hoffmann, ‘Judicial Services for Global Commerce – Made in Germany?’ (2009) 10 German Law Journal 115, 119; Robert Gilpin, Global Political Economy (2001), 8; Spyros Economides and Peter Wilson, The Economic Factor in International Relations (2001), 6. The term ‘borderless world’ is from Kenichi Ohmae, The Borderless World (1990).

(116) Kenneth Abbott and Duncan Snidal, ‘The Governance Triangle: Regulatory Standards Institutions and the Shadow of the State’, in Walter Mattli and Ngaire Woods (eds), The Politics of Global Regulation (2009), 44.

(117) For example, Aoife O’Donoghue, Constitutionalism in Global Constitutionalisation (2014); Peer C. Zumbansen, ‘Comparative, Global and Transnational Constitutionalism: The Emergence of a Transnational Legal-pluralist Order’ (2012) 1 Global Constitutionalism 16.

(118) Morag Goodwin, ‘What I Talk About When I Talk about Global Law’ (2012) 17 Tilburg Law Review 269, 273; Rafael Domingo, The New Global Law (2010), xvii; Lorenzo Casini, ‘The Expansion of the Material Scope of Global Law’, in Sabino Cassese (ed), Research Handbook on Global Administrative Law (2016), 25, 30. See also Neil Walker, Intimations of Global Law (2015).

(119) Kenneth W. Dam, The Law-Growth Nexus: The Rule of Law and Economic Development (2006); Robert D. Cooter and Hans-Bernd Schäfer, Solomon’s Knot: How Law Can End the Poverty of Nations (2011). For the role of formal property rights, see also Michael J. Trebilcock and Mariana Mota Prado, Advanced Introduction to Law and Development (2014), 63–70. For empirical studies, see Stephan Haggard, Andrew MacIntyre, and Lydia Tiede, ‘The Rule of Law and Economic Development’ (2008) 11 Annual Review of Political Science 205, 208.

(120) Werner Menski, ‘Beyond Europe’, in Esin Örücü and David Nelken (eds), Comparative Law: A Handbook (2007), 189, 210; International University College Global Legal Standards Research Group, ‘IUC Independent Policy Report: At the End of the End of History—Global Legal Standards: Part of the Solution or Part of the Problem?’ (2009) 9 Global Jurist 3, Art. 2.

(121) For example, Ugo Mattei and Laura Nader, Plunder: When the Rule of Law is Illegal (2008); Joel M. Ngugi, ‘The World Bank and the Ideology of Reform and Development in International Economic Development Discourse’ (2006) 14 Cardozo Journal of International and Comparative Law 313; Rosa Brooks, ‘The New Imperialism: Violence, Norms, and the “Rule of Law” ’ (2003) 101 Michigan Law Review 2275.

(122) See eg Mathias Siems and David Nelken, ‘Global Social Indicators and the Concept of Legitimacy’ (2017) 13 International Journal of Law in Context 436; David Restrepo Amariles and Julian McLachlan, ‘Legal Indicators in Transnational Law Practice: A Methodological Assessment’ (2018) 58 Jurimetrics 163.

(124) For these studies, see Section II.4.

(125) See Bénédicte Fauvarque-Cosson and Anne-Julie Kerhuel, ‘Is Law an Economic Contest? French Reactions to the Dong Business World Bank Reports and Economic Analysis of Law’ (2009) 57 AJCL 811, 822.

(126) For the latter, see Section II.2.

(127) Daniel Oto-Peralías and Diego Romero-Ávila, ‘Legal Reforms and Economic Performance: Revisiting the Evidence’, World Development Report 2017, Background Paper, available at <http://pubdocs.worldbank.org/en/193351485539892515/WDR17-BP-Revisiting-Legal-Origins.pdf>.

(128) Jason Webb Yackee, ‘Foreign Aid, Law Reform, and the World Bank’s Doing Business Project’ (2016) 9 Law and Development Review 177.

(129) Jesper Moll Niemann, Doing Business in Politics—How Benchmarking Changes Global Governance (2013).

(130) See the special issue on ‘Global Social Indicators: Constructing Transnational’ (2017) 13 International Journal of Law in Context 433–573.

(131) See also Mathias Siems, ‘Comparative Law in the 22nd Century’ (2016) 23 Maastricht Journal of European and Comparative Law 359.

(132) For this practice at McGill University see <http://www.mcgill.ca/centre-crepeau/projects/transsystemic>.