comparative law essay

Comparative Law Research Guide: Getting Started

• Getting Started
• Introductory Materials
• Treatises & Books
• Finding Articles
• Finding Constitutional Texts
• Finding Legislation
• Finding Cases
• Finding News Articles

What is comparative law?

Looking for a database.

This is an alphabetical list of FSU databases useful for researching legal issues dealing with comparative constitutional law.

Writing a Paper?

• Choose a Paper Topic
• Do a Pre-Emption Check
• Avoid Plagiarism
• Cite Correctly

Narrow  your topic on which you can write a 20-30 page paper. Select a topic that addresses an international law question that is of  interest  to you and also is  original and  topical .

To find ideas for your topic, go to the following sources with an international perspective.

• Read or search through  newspapers and magazines ,  newsletters , or  blogs
• Skim the tables of contents of newly-released law reviews and law journals  and the Current Index to Legal Periodicals . 

Once you've chosen a paper topic you'll need to review the legal literatute for a pre-emption check to be sure that another legal scholar has not already covered your topic.

Use these sources in a pre-emption check:

• articles-in-progress
• newly-published articles
• law review articles
• blogs and websites
• Citing Responsibly: A Guide to Avoiding Plagiarism
• Principles of Paraphrasing Online Tutorial
• FSU Law Research Center Plagiarism Guide
• Advanced Citation Guide for Scholarly Writing
• YouTube Bluebooking Series

Beginning Research?

• Background Info
• Country by Country Guide to Foreign Law Research

• Globalex Comparative Law Guides
• International and Foreign Law Research
• Researching Comparative Law 2017
• BBC Country Profiles
• CIA Country Handbook
• Political Database of the Americas
• Rule of Law Index

Presentation

Organizations

• American Society of Comparative Law
• British Institute of International and Comparative Law
• European Society for Comparative Legal History
• Next: Introductory Materials >>
• Last Updated: Jan 22, 2024 10:57 AM
• URL: https://guides.law.fsu.edu/comparativelaw

BJu Tijdschriften

• Abonnementen
• Law and Method
• november, 2017
• Comparative Rights Jurisprudence: An Essay on Methodologies. Specia...
• november 2017
• Artikel Comparative Rights Jurisprudence: An Essay on Methodologies. Special Issue - Comparative Law

Citeerwijze van dit artikel: Ioanna Tourkochoriti, ‘Comparative Rights Jurisprudence: An Essay on Methodologies. Special Issue - Comparative Law’, 2017, oktober-december, DOI: 10.5553/REM/.000030

Dit artikel wordt geciteerd in

• 1. Introduction

Paul Feyerabend’s insight in Against Method (1988) that there is no single method that can produce results in scientific discourse and that all methodologies have their limits is gaining ground in the area of comparative law as well (Leckey 2017, p. 9; Adams & Griffiths 2012; Glenn 2015; Husa 2015). In his book Feyerabend notes that evolutions in science came about just because some thinkers decided not to be bound by methodological rules or because they broke them (Feyerabend 1988, p. 14). Nevertheless, even Feyerabend, despite his prima facie radical deconstruction of the idea of a dominant method, accepts the possibility of evaluating standards of rationality and of improving them in reference to the methods we are using to obtain knowledge (Feyerabend 1988, p. 230). These reflections, are also relevant to the law, a normative discipline that has its own constraints of justifiability. This is so because legal solutions that concern the regulation of rights need to be persuasive as just. Therefore, a comparative law methodology is already preconditioned with the goal of the search for solutions that correspond to principles of justice. The methodological approach that the researcher chooses to follow needs to persuade that it does indeed serve the aim of the researcher. This article discusses mainly three approaches that can be helpful in this area oriented in reference to three different kinds of studies that are possible in the area of comparative rights jurisprudence. It also discusses the challenges to which the researcher is exposed in her attempt to follow these methodologies. To a large extent the methods that can be helpful to a comparative legal research depend on the research question and the goal of the researcher (cf. Van Hoecke 2015, p. 1; Valcke 2012; Smits 2012; Paris 2016, p. 41). This essay proposes some methodologies for research in comparative jurisprudence understood as an effort to understand legal ideas, ‘the philosophical principles, concepts, beliefs and reasoning that underlie legal rules’ as applied by various jurisdictions around the world (cf. Ewald 1998, pp. 701-707, 705-706; Ewald 1995, p. 1896). It proposes methodologies for the study of the intellectual foundations of rules protecting rights in various legal systems. Therefore, the three types of legal methodology proposed are mostly defined in reference to various goals that the researcher might aim to achieve. First, a comparative law study may focus on the sociopolitical context that led to the elaboration of similarities or differences in the protection of rights. In this respect a study of comparative law is, by definition, an interdisciplinary study. Legal rules are a subcategory of social rules that regulate human interaction (see for instance Hart 1961). This approach aims to propose a framework for understanding the differences in the protection of human rights. The point of departure is legal hermeneutics, which points towards the conscious and unconscious factors at play in the elaboration and application of legal rules, the collaboration between mythos and logos (see Gadamer 2004, pp. 235 seq.). Second, a comparative law approach can be a normative enterprise. It can focus on engaging in a philosophical analysis enlightened by the differences or similarities in the regulation of human rights issues, in order to propose concrete solutions for the regulation of a human right. In this approach the legal similarities or differences under comparison would provide inspiration for theoretical arguments for and against a solution in one area or another. In this approach comparative law provides a stimulus for philosophical reflection on a human right. The differences in the legal regulation of a human right can be the case study of applied legal philosophy in view of exploring a solution that seems to express principles of justice. Third, a comparative law approach can also combine both elements of the two previously mentioned approaches. It can aim at studying the sociopolitical frame that led to the emergence of legal rules and challenge them in the cases where it seems that there is some flagrant injustice in the application of rules upon concrete cases of human rights. It may aim to reach a ‘reflective equilibrium’ (Rawls 1972) 1 x Although Rawls uses the concept in moral theory to describe a way of reasoning from moral intuitions to moral principles founded on reason, I use it here in the dialectic between the is and the ought . between the is and the ought . This means that it can engage in a study that can be articulated as a back and forth movement from the differences in the operation of legal rules to how they should be operating. This will be a back and forth movement from the formation and operation of the rules in their context to a normative principle as to how they should be operating and the other way around. The study of the operation of the law in different contexts can provide insights as to how they should be operating in order to protect rights better. This can provide guidance for future cases. This back and forth movement can allow for a normative understanding of the law on rights that has real-world applications and is not construed too ideally. It can also lead to reconceptualizing (see Brand 2006-2007, pp. 405, 450) the current concepts upon which law regulating rights operates. These methodologies concern studies of concrete cases of rights. They presuppose a somehow narrowly defined object of the analysis, such as studying the differences among legal systems in balancing rights in conflict with other rights or in conflict with collective considerations. Examples of the kind are hate speech, where what is at stake is the need to decide the limits of freedom of expression versus reputational interests. Other cases are the regulation of wearing religious symbols, where what is at stake is the interest of the state to protect its citizens from themselves and others versus the right of the person to express herself. Some other cases can be data protection, which concerns balancing the right of the person to decide who has access to information concerning her and the rights of marketeers to have access to data. Other case studies may concern conflicts that emerge around the enforcement of anti-discrimination law. The last category gives grounds for study in reference to the preference for the protection of one type of freedoms through anti-discrimination law such as freedom of religion to the detriment of other types such as welfare rights. The right not to be discriminated against often collides with the right to freedom of religion. The need to protect the autonomy of religious institutions has led some legal orders to accept exemptions in the enforcement of anti-discrimination law when religious institutions put forth that they need to discriminate out of respect for their religious convictions. The article discusses the challenges that the researcher faces in her attempt to use these methodologies and how these challenges can be overcome. First, these challenges arise in the selection of cases that are appropriate for comparison, in assuring comparability. What is at stake is the question of commensurability. If what motivates a comparative law study is the search for principles of justice the researcher needs to persuade that her methodological approach serves her aim and that the cases she has chosen to study are comparable. Second, challenges emerge for the comparatist concerning the research question that she uses, her theoretical framework and her criteria of evaluation. Furthermore, these challenges concern the validity of the interpretative schemata that she refers to or that she creates in order to interpret the legal phenomena she is studying. These interpretative schemata may be defined by conscious and unconscious bias. Although to some extent it is impossible for the researcher to transcend the subjectivity of her perspective, there is a moral obligation for the researcher to make an effort to transcend this bias. Interdisciplinary collaboration as well as collaboration with scholars whose background was formed in the foreign legal system under study can help transcend these challenges. Another concern for the comparativist is the danger of being trapped in the relativity of her background, which would prevent her from thinking critically about the object of her study. The solution to the problem comes from the reflection on the just character of the rules that is implicit in any attempt to compare legal rules. The inherent normative dimension of the law can help transcend the circumstances that define the biases of the researcher. The law as a normative discipline has its own constraints of justifiability. The researcher is led to transcend her conditioning in a context that provides to her a frame of evaluation and to think in abstracto about principles of justice. The comparatist who studies legal rules inevitably transcends her horizon and is led to think about the justness of the legal rules she is studying.

• 2. Theoretical Framework

I use here the term ‘right’ in the Hohfeldian sense, as an interest protected by a legal order, which is correlative with others’ duty to respect it. As such, rights imply concrete obligations by the state (Newcomb Hohfeld 1964, p. 33). Different jurisdictions may follow different conceptions on the extent of the positive obligations of the state to respect a liberty and enforce its protection by others within civil society. Different states may follow different conceptions in converting liberties, always in the Hohfeldian sense, into rights. Studying legal rules that regulate rights from a comparative perspective is an area of research where there is a continuum between various social and theoretical sciences. 2 x Mark Tushnet notes that in the area of comparative law ‘The boundary between law and other academic disciplines has become blurred’, Tushnet 2017, p. 17. If Foucault is right in noting that ‘disciplinary’ discourse exercises power upon its object by dividing an area of knowledge and limiting the possibilities of scholars to see things otherwise (Foucault 2010, p. 49; Foucault 1977, pp. 211, 222, 226), then comparative law is the area of research that can liberate the mind rebelling against these rigid ‘disciplinary’ distinctions that ‘discipline’ the mind. Comparative law scholars have noted the interdisciplinary character of comparative law as an approach to the study of the law (Grosswald Curran 1998; Husa 2014). Nevertheless, some scholars note the unfulfilled potential for meaningful connections between other disciplines such as legal sociology and comparative law and recommend that communication and comparison require ‘thick descriptions’ to be meaningful (see Cotterrell 2016, pp. 127, 141). Few comparative studies offer this interdisciplinary perspective that studies cases from an interdisciplinary perspective and that lead to meaningful insights. The methodologies proposed in this article also are based on this insight recommending various disciplinary angles for comparative analyses of rights jurisprudence. The methodologies analysed below presuppose a conception of a legal system as jurisprudence, composed of factual as well as ideational, normative elements, and as such these methodologies can help explore how various juridical ideas protected as rights have materialized in different polities (see Valcke 2004, p. 739). Comparing legal rules involves identifying some similarities, for the case of a right that is important to protect. It also involves attempting to identify units of variation that are worth studying (see McCrudden 2017). For a comparison in the area of human rights it is the substantive rulings that are important that have found legal form in legal texts and legal decisions and less the legal form in which they have become positive rights.

• 3. The Three Methodological Approaches

3.1 Sociopolitical Context

One approach could be to engage in a study of the historical and sociopolitical context that motivated different constitutional systems and legal orders to regulate the exercise of a liberty in one way or another. For instance, a comparative study of the permissibility of regulating the wearing of headscarves in public places implies studying the historical and sociopolitical context that makes regulating individuals’ dress choices legitimate in one legal system and illegitimate in another (see, for instance, Tourkochoriti 2012). A comparative law study may focus on the sociopolitical context that led to the elaboration of differences in the legal regulation of human rights questions. Legal rules are a subcategory of social rules that regulate human interaction. Engagement with social theory can provide insights into the social origins of legal rules. I am deliberately avoiding the term ‘culture’ at this point as it is too vague. 3 x The idea of ‘legal culture’ has been criticized by many comparatists as being very vague and difficult to define as such. See Nelken 2016; Riles 2006; Cotterrell 2006, p. 140. This approach aims to propose a framework for understanding the differences in the protection of human rights. It may also propose to reflect critically on this framework. The question is relevant with reference to the scope of the protection of human rights, for instance in cases of exploring their limits that courts decide to trace on the balance with other legal rights and social considerations. The point of departure here is legal hermeneutics. This methodological approach points towards interpreting the conscious and unconscious factors at play in the elaboration and application of legal rules. Hans-Georg Gadamer notes in his capital book Truth and Method that there is always a collaboration between mythos and logos (see Gadamer 2004) whenever an interpreter is making sense of a text. This distinction aims to underline that part of the elements at play in legal reasoning come from biases and prejudices conscious and unconscious and part of them come from the use of reason. The reasoning of jurists when they debate whether it is legitimate for the state to limit a right or not is influenced by factors that they can control, their reason, logos , and factors that they cannot control, all sorts of prejudices, mythos . The comparatist will thus aim to propose some elements that compose the mythos and the logos of the jurists in a legal system when they discuss the permissibility of limiting a right. For instance, an analysis of the differences in the regulation of headscarf bans can focus on the dominant understanding of the role of the government in various constitutional orders (see Tourkochoriti 2012). This would imply studying to what extent it is legitimate for the government to intervene and define the dress choices of the citizens, to protect them from themselves and social pressure in their dress decisions. An understanding of the role of the government presupposes the study of theories on its mission and how these theories have been understood and applied in various constitutional orders. Very often, referring to the political debates that elaborated the framework of a constitutional order can be helpful, always taking into consideration that these ideas evolve through time as societies evolve. The divide in harsh punishment between various systems in the world can be studied in reference to the general socio-political context, which leads to a variability in the understanding of the role of criminal punishment (see Whitman 2003). A study of the right to privacy can lead to insights concerning the entity mostly feared as likely to violate this right in different legal contexts, civil society actors or the state (Whitman 2004; 2005, p. 98 seq). A study of how anti-discrimination law operates within various legal systems can lead to conclusions on which liberties are more worthy of protection in various legal systems (Suk 2007b; 2007a; Tourkochoriti 2015; 2017). A study of hate speech in Germany can enlighten the constitutional culture of that country as one that accepts limitations to free speech, in opposition to the US, where the self-understanding points towards protecting free speech (see Tushnet 1998-1999, p. 1278). 4 x For an extended analysis of free speech from this perspective, see Whitman 2000, pp. 1279-1398. This approach is a version of the one comparativists have characterized as the search for ‘mentalités’ (Samuel 1998; Legrand 1995, p. 273) and ‘Styles of thought’ (Ewald 1994-1995, p. 1948). It is also close to what some other scholars have characterized as ‘expressivism’, the inquiry as to how constitutions help constitute the nations, ‘offering to each nation’s people a way of understanding themselves as political beings’. 5 x For this definition see Tushnet 1998-1999, p. 1228. It is also broader than this as it aims at identifying wider patterns of thought and ex ante understandings, conscious and unconscious elements at play within the understandings of jurists on the legitimate limits of a liberty within a legal system. It aims at discovering the ideological underpinnings that lead to ‘mentalités’ and styles of thought. It aims at pointing out, for instance, why judges interpreting legal clauses that seem to be close linguistically are led to divergent results in the protection of a right. For instance, it can help understand why judges and other jurists using tools in their reasoning such as balancing or proportionality, which have become the new ‘lingua franca’ around the world (Bomhoff 2008, p. 570), are led to different results in different parts of the world. Some elements of the philosophy of history are intertwined with this approach to the extent that a reflection on the philosophical meaning of historical events would make sense from a comparative point of view in reference to some broader philosophical ideas. A comparative study that focuses on the historical context will need to discuss how different jurists, that is legal scholars, judges, legislators and the like make sense of philosophical principles and how they use the law to implement them. This approach inevitably implies a study of the dialectic between the is and the ought and how jurists make sense of this dialectic and implement it through the law. This is Hegel’s approach to the philosophy of history, seeing history as the realm of the interplay between the is and the ought (Hegel 1991). 6 x For instance, for his analysis of the French Revolution see p. 450 seq. Hegel associates this vision with how human actors are trying to transform their reality while they are limited by what is realizable depending on the level of the maturity of reason within their societies. Even if we do not follow Hegel’s conception of a progressive realization of reason in history, it is always helpful to examine how different political problems can be resolved in reference to different principles that find consecration and embodiment through the law. In the area of rights this approach would imply studying various theories of government and seeing how different political and legal actors made sense of them in order to respond to their varied sociopolitical needs. If we accept that there is a dialectic between the is and the ought , the understanding of legal actors of these theories is conditioned by the sociopolitical needs with which they are confronted. At the same time the guidance of a principle motivates the ambition to change reality in these political and legal actors. At a third level the researcher can refer to these abstract ideas and criticize the efforts of political and legal actors to implement them. Therefore, an effective comparative study in the area of human rights needs to focus on the study of various sociopolitical contexts and the problems they create, the reactions of legal and political actors to them and the principles that motivate the reaction of these actors. This interdisciplinary study on all these levels, the level of reality, the level of normative principles and the way various actors make sense of these principles in order to respond to these sociopolitical problems aims to propose a wider interpretative frame that can help understand the differences in the regulation of rights and liberties in various constitutional orders. For instance, studying the most important philosophical ideas on the role of the government at the moment of the French and the American Revolutions can elucidate why it is legitimate for the state in France to regulate the wearing of headscarves in public. The choice of a theory of government at the moment of founding a republic is dictated by concrete political and social needs. In France during the French Revolution the mission of the government was seen as ensuring that the citizens would have the necessary preconditions for the exercise of their liberties. It was also seen as necessary to exclude religion from the public sphere. Jurists in France today understand this principle to mean that the government can regulate the extent to which citizens are allowed to wear headscarves in public. The prohibition on covering one’s face in public can be understood as part of a wider conception of top to bottom secularism that dictates to individuals that they should not manifest conspicuously their religious convictions. 7 x For an analysis of the ban on wearing conspicuous signs of religious affiliation in France, dictated by conception of secularism from the top to the bottom, see Tourkochoriti 2012. The French legislation on secularism can be understood as part of this wider perspective of state-imposed secularism that expresses disregard for individual reason. The state helps individuals realize their liberty as they cannot realize it by themselves. The state can intervene and make sure that they are authentically free. It also means that the government is allowed to repress manifestation of religion in public. Understanding these reasons as being at the origin of regulation of wearing headscarves in public can lead to a philosophical reflection as to their permissibility today. If the understanding on the role of the government elaborated during the French Revolution aimed at responding to concrete social and political needs, today these social and political needs may have changed. Thus, these changes may necessitate a change in the theory of government in France. It may no longer be permissible for the state to dictate to the citizens that they should not manifest their religious beliefs in public. Doing so may lead to a number of unintended consequences that do not allow peaceful coexistence between religious groups.

3.2 A Normative Enterprise

Second, a comparative law approach can be a normative enterprise. It can focus on engaging in a philosophical analysis enlightened by the differences in the regulation of rights, in order to propose concrete solutions for the regulation of a right. In this approach the study of differences or similarities between different legal orders in the balancing of rights can provide stimuli for philosophical reflection on a right. In this approach the legal approaches under comparison would provide theoretical arguments for and against a solution in one area or another. 8 x William Ewald advocates a similar approach in Ewald 1995, p. 1944. For instance, studying the differences in the regulation of hate speech between the USA and European countries can lead to a philosophical reflection on the permissibility of hate speech. It can engage with exploring whether the American or the European solution to the problem corresponds better with principles of justice. Hate speech leads to conflicts of rights between the person who expresses herself and the persons whom she offends with her hate speech. Which solution concerning the balancing of rights in conflict or the balancing of individual rights and collective considerations should be preferred? Different solutions to this question are motivated by different principles considered important. A philosophical analysis of the permissibility or not of the exercise of a right can be enlightened upon the rationales that jurists use in different constitutional systems to limit rights and liberties. The differences in the legal regulation of a human right can be the case study of applied legal philosophy in view of exploring a solution that seems to express principles of justice. This approach on the normative level aims to identify principles that compose the ought , how societies should devise norms to regulate human rights issues. It is concerned with elaborating a theory of rights that can be enlightened by how and to what extent various legal systems protect these rights. For instance, studying how different countries regulate hate speech can be the basis for a philosophical reflection on the legitimate limits of free speech (see Tourkochoriti 2014a). Different legal orders have different legal evaluations of what harm is, and this can lead them to different conceptions of regulating speech, which may involve criminal sanctions, civil responsibility or even absence of stricto sensu legal consequences allowing social sanctions the room occupied elsewhere by legal sanctions. For instance, the US legal system seems to be more reluctant than that of the European states to limit hate speech through the use of civil or criminal sanctions. Nevertheless, there are social restrictions against hate speech in the US. The practice of political correctness leads to the social isolation of those who express hateful ideas. These differences in the evaluation of social harm can stir a valuable philosophical reflection on the legitimate sphere of government action. Should it intervene in order to enforce the protection of citizens against offences caused by speech, as is the case in most European states today, or should it allow society to regulate cases such as this through other mechanisms such as social sanctions, as is arguably mostly the case in the US. Furthermore, a comparative study of hate speech that follows this methodological approach can help refine further the crucial legal concepts. In this case, it can help reflect on the concept of hate speech itself towards a theoretical understanding of what should be understood as hate speech. This theoretical understanding will model in itself how lawyers should understand these concepts in future cases that come up, allowing them to have a more sophisticated approach to these issues. Courts around the world use various techniques to evaluate the importance of limiting or protecting rights. As J . Bomhoff has noted, very often they even refer to the same technique such as ‘balancing’, which is used differently in different contexts. Courts use balancing either to accept as legitimate the exercise of political authority in limiting the exercise of these rights or to achieve the opposite result, which is to limit the authority of the state in its efforts to limit rights (Bomhoff 2008, p. 559). Courts refer to notions of fairness and rationality that are presented as having a universal dimension, while they are merely reflecting local understandings created on the basis of sociopolitical factors (Ibid.). A comparative study can explore arguments for or against each of these practices. It can thus contribute towards a philosophical exploration of government legitimacy in its efforts to limit rights. Studying cases where there seems to be agreement across jurisdictions on the appropriate limits of a right can stir a philosophical reflection on whether a right has and should have a universal character or not. 9 x In this respect, this methodological approach lies beyond the debates on whether comparative law scholarship should focus on similarities or differences. Both can be equally helpful in stirring a theoretical reflection on the need to protect a right, and under what circumstances limits to the protection of this right may be accepted. See Dannemann 2006. This approach is beyond what is commonly understood in the area of comparative law methodology as functionalism. Functionalism aims at pointing out the role that constitutional arrangements play in a system of governance in order to identify how different constitutional provisions serve the same function in different systems. 10 x For this definition of functionalism, see Tushnet 1998-1999, p. 1228. Functionalism is mostly a descriptive approach, whereas the approach proposed here is normative. The methodology proposed here aims at encouraging a theoretical reflection on how functions should be served within a constitutional system. Functionalism has been criticized as running the risk of encountering two difficulties. 11 x Ibid., p. 1265. First, functionalist approaches may omit some relevant variables in their effort to study common grounds among legal systems. This means that the way the law works in different legal systems is too intricate and the possibilities of any individual researcher are limited in her efforts to describe them. In the case of hate speech this would mean that the case law of the courts is too sophisticated and too intricate for a comparatist to describe it accurately across legal systems. Second, even when a limited number of additional variables are taken into account the number of cases that may be of interest turns out to be too small to support any functionalist generalization. In the case of hate speech this may mean that it is difficult to say whether legal systems agree in the regulation of all cases of hate speech or not. The methodology proposed here is insulated from these criticisms as the study of the existing state of the law is merely the point of departure of a theoretical reflection on what the law should be. As a study of jurisprudence and not merely a study of positive law, minor deviations and nuances might actually be helpful as offering interesting arguments for a philosophical reflection. Furthermore, unlike functionalism, this approach concerns not only similarities but also differences in the regulation of human rights. In many cases this approach can provide a theoretical reflection towards resolving cases of conflict of laws that are very relevant from a transnational perspective. For instance, the differences in data protection recently noted between the European Union and the USA (Schwartz 2013, pp. 1966, 1979: Schwartz & Solove 2014; Tourkochoriti 2014b) can stir a philosophical reflection on these issues that can be inspired by arguments used for and against regulation of data collection by public and private entities. Data collectors can be either the state or private market actors. Different legal systems may protect more strictly data privacy against collection coming from private actors than against the state. The comparatist may engage in a reflection on whether there are different dangers in the collection of data between the state and private actors and recommend solutions in both cases. Since the law is, by definition, the study of norms that regulate human behaviour and interaction, comparative law helps with this approach elaborate legal rules that can help towards problem solving in the area of protecting rights. It can lead to greater sophistication in the understanding of the legal concepts that jurists use. 12 x This thought is largely inspired by Samuel 1998, p. 833. It can provide insights that can be helpful to the legal argumentation of all jurists as they interpret and apply even existing legal rules within their legal system of origin. This approach can thus be helpful to lawyers in their effort to bridge the general abstract legal rules and the concrete facts to which they attempt to apply them. Once these abstract criteria of how they should understand their concepts are defined as a result of this comparison, they can then form and model how these lawyers think in their own tradition, given that there is a dialectic between how lawyers apply the law and how they will think that they should apply the law once the comparative study has been completed.

3.3. A Combination of Both These Approaches

Third, a comparative law approach can combine both elements of the two previously mentioned approaches. First, it can aim to study the sociopolitical frame that led to the emergence of legal rules and challenge them in the cases where it seems that there is some flagrant injustice in the application of rules upon concrete cases of human rights. Second, it may incite a philosophical reflection on the proper regulation of a right. For instance, studying anti-discrimination law in the access to employment in the USA and European countries can lead to finding differences and similarities in the mission and the goals of anti-discrimination law. These differences and similarities can encourage a reflection on how anti-discrimination law can be more effective. It can also lead to a better understanding of the crucial concepts that anti-discrimination law uses. And it can lead to proposing new concepts that may be more useful towards eliminating discrimination. This means that this approach can lead to a reconceptualization of the various legal tools that jurists use in Europe and the US in order to combat discrimination in the access to employment. This approach, shares with the first approach discussed in Section 3.1, it is an interdisciplinary study. It aims at proposing a theoretical framework for understanding similarities and differences in the protection of rights among various legal orders. This framework will also help evaluate the existing regulations. A study of this kind focuses on the existing legal structure as well as the theoretical basis upon which it rests. Interdisciplinarity in this area means engaging with research in the social sciences, which can help understand the political and social purposes of legal rules. In this sense a comparative study aims to show overall how problems that have emerged in one jurisdiction are addressed in another (Glendon et al. 2007. It aims to reach a ‘deepened understanding’ of a social and political problem, which can be the source of inspiration for providing better solutions. This approach aims at highlighting the different sensibilities concerning pressing concerns on rights and at evaluating them. Comparative law entails an interdisciplinary approach and a focus on context, the structural and contextual background to the rules under comparison (Palmer 1998). 13 x For a focus on cultural immersion as a prerequisite for effective comparative analysis, see also Grosswald Curran 1998. The study will focus on the structure of the relevant concepts, their emergence and philosophical underpinnings. Further, this approach uses the second approach, discussed in Section 3.2, of encouraging the researcher to engage in a normative reflection on the similarities or differences in the regulation of rights. This approach may aim at reaching a ‘reflective equilibrium’ (Rawls 1973, p. 20) 14 x Although Rawls uses the concept in moral theory to describe a way of reasoning from moral intuitions to moral principles founded on reason, I use it here in the dialectic between the is and the ought . between how the law works and how it should be working. This means that it can engage in a study that can be articulated as a back and forth movement from the differences in the operation of legal rules to how they should be operating. This will be a back and forth movement from the formation and operation of the rules in their context to a normative principle as to how they should be operating and the other way around. The study of the operation of the law in different contexts can provide insights as to how they should be operating in order to protect rights better. This can provide guidance for future cases. This back and forth movement can allow for a normative understanding of human rights law that has real-world applications and is not construed too ideally. It can also lead to reconceptualizing (see Brand 2006-2007, p. 450) the current concepts upon which human rights law operates. In this case the aims of the study are to challenge the existing philosophical and sociopolitical frames that lead to legal differences in reference to new case studies in order to propose changes in the way of thinking of various legal and political actors. For instance, a study against discrimination in the access to employment in the U.S. and the EU can have as its aim the study of the existing legal rules and how they operate. A study of comparative anti-discrimination law can aim to highlight the different sensibilities of anti-discrimination law in the US and the EU and to evaluate them. Understanding the philosophy inspiring the legal rules will help evaluate the exceptions to the rules against discrimination. For instance, the primacy given to freedom of religion in the US, owing to concrete philosophical, historical and social reasons, may lead to interpreting the exceptions to the rules against discrimination in a way that makes anti-discrimination law meaningless. The US Supreme Court has accepted that under the rule of the ministerial exception, religious institutions can be exempt from the application of disability anti-discrimination law. 15 x Hosanna Tabor v. E.E.O.C ., 565 U.S. 171 (2012). The study of the sociopolitical context that led a legal system to giving priority to protecting one category of rights will lead the researcher to a deeper understanding of why the US gives priority to protecting some rights to the detriment of others. It may also incite a normative reflection as to whether the ideology that inspired this state of the law is just and still relevant today. For instance, in the case of balancing religious autonomy versus enforcing disability anti-discrimination law, the need to protect minority religious communities, which was compelling during the founding era in the US, may have to cede to the compelling need to protect other social groups today such as the disabled. 16 x For a study that follows this methodology on this topic, see Tourkochoriti 2013. A similar argument can be made once the researcher has engaged in a normative enterprise on the importance of enforcing disability anti-discrimination law. For the study of anti-discrimination law the study of the cultural values that lead to discrimination is very important in view of addressing solutions. In parallel, research on discrimination from a social and political theory perspective can enlighten further the importance of legal intervention in concrete areas. Situating the rules of anti-discrimination law in the social and political context that has produced them can help criticize these rules in view of improving them with the aim of promoting social change. The comparison of how the rules are working in practice will allow the researcher to develop criteria for how they should be operating. The idea of ‘reflective equilibrium’ discussed by John Rawls (1972) describes the process that the researcher can follow in this respect. Although Rawls uses the concept in moral theory to describe a way of reasoning from moral intuitions to moral principles founded on reason, I use it here in the dialectic between the is and the ought . In this context it means a back and forth movement from the operation of legal rules to how they should be operating. The study of the operation of human rights law in various legal contexts will provide insights into how they should be operating and serve as a basis for guidance in future cases. This will be a back and forth movement from the formation and operation of the rules in their context to the principle and the other way around. This back-and forth movement can allow for a normative understanding of rights protection that has real-world applications. It can also lead to reconceptualizing (see Brand 2006-2007, pp. 405, 450) the current concepts upon which the law operates. As Geoffrey Samuel notes, this approach is simultaneously based on a deconstruction of the current understandings of legal concepts and reconstruction of doctrinal analysis concerning how rules should be understood and applied in concrete legal cases (Samuel 1998, pp. 835-836). As such, this approach can make a significant contribution to jurisprudence. For instance, in the case of anti-discrimination law, the American legal system protects more strictly against discrimination in the exercise of negative liberties such as freedom of religion. European states protect less against discrimination in the exercise of negative freedoms and more against discrimination in positive freedoms (Suk 2007b; Tourkochoriti 2015; 2017). This indicates the different sensibilities in the US and the EU and the different theories of government that are dominant in these two legal systems. In the US it is legitimate for the state to intervene in order to protect negative liberties. In Europe the state intervenes in order to protect positive liberties as well. Is there something wrong with giving the priority to a set of anti-discrimination claims to the detriment of another set? The researcher can engage in a theoretical reflection on these questions in reference to the real-life applications of anti-discrimination law. The three methodological approaches analysed in this part, an approach that focuses on the sociopolitical context, a normative approach and a combination of the two, indicate that comparative law is a challenging enterprise. It is challenging because of its interdisciplinary character and also because it is a very ambitious enterprise, involving transcending the researcher’s comfort zone. It implies studying legal rules in different social and political contexts from the researcher’s own legal system. It also implies expanding the horizons of one’s knowledge in the area of neighbouring disciplines, which can be extremely demanding. In the second part that follows, I analyse these challenges and argue that it is possible to overcome them.

• 4. Challenges

The challenges involved in engaging in interdisciplinary research are significant. Nevertheless, they are not insurmountable. The very nature of legal comparison can help the researcher transcend the challenges she is confronted with. First, challenges arise in choosing the cases that are appropriate for comparison. The researcher needs to persuade persuade that there is commensurability in the cases she is studying that allow her to make conclusions about the relevant legal phenomena. A second challenge lies in the fact that the research question that the researcher uses, her theoretical framework and the evaluating criteria will be conditioned from her point of view. Her situation in a context of meaning also affects the validity of the interpretative schemata that she creates in order to interpret the concrete legal phenomena she is studying. The researcher will need to refer to theoretical frameworks that have already been elaborated by others, and to some extent she will need to use them or criticize them in reference to her own purposes. To some extent it is impossible for the researcher to escape the subjectivity of her perspective as her perspective is often defined by unconscious prejudices that she cannot always dispose of. Nevertheless, there is a moral obligation for the researcher to be open to the ‘newness’ of the materials she is studying and to try to reflect critically upon her prejudices. Collaborating with researchers having other disciplinary backgrounds and jurists operating in the new legal culture that the researcher is studying is also extremely important. Another concern for the comparativist is the danger of getting trapped in the social relativity of the legal tradition that has formed her background, which would prevent her from reflecting critically on the object of her study. This would make it difficult to reach a reflective equilibrium between how the law operates and how the law should operate. This challenge can be overcome if we consider that the law is a normative discipline. It studies the ought . The researcher is studying rules, which implies that she is inevitably asked to take a position on the justness of these rules. When analysing a normative subject it is impossible to avoid taking a position. As Jürgen Habermas notes, 17 x See infra p. 25. the researcher is led to transcend her conditioning in a context that provides to her the frame of evaluating and to think in abstracto about principles of justice. The comparatist engages in her study in order to transcend her horizon and to think about the justness of the law. In this effort, transcending the situation of her context is inevitable. First, challenges arise in choosing the cases that are appropriate for comparison, in assuring comparability (Hirschl 2005). In other words, what is a stake here is the question of commensurability. The comparatist must be careful in the selection of her cases and of the interpretative scheme that she uses to approach them. Gabriel Tarde noted that the narrower the focus of the social scientist who is studying a phenomenon, the greater the singularity of the phenomenon appears, thus making its comparison with others difficult (Tarde 1893, pp. 157-175, 231-246. See also Matagrin 1910, p. 31). Durkheim elaborated his theory of ‘emerging properties’ in response to Tarde in order to underline the possibility of addressing collective characteristics of groups of persons that can be attributed to them at a macro level. According to this theory, when individuals are brought together as part of a group, new properties emerge that can be used to characterize them. These properties are differ from their properties seen as individuals. This conception is thus enabling commensurability. For instance, Durkheim’s description of the idea of ‘collective consciousness’ can be an element of commensurability to the extent that it denotes the rational and irrational elements that hold a society together (Durkheim 1984, pp. 226 seq). This gap between the narrow focus, which may create problems for commensurability, and the macro focus, which allows more easily for commensurability, has to be filled in by the comparatist who needs to persuade persuade for the validity of her case selection and the schema that she is using to interpret it. For instance, in the comparison of the responses of France and the US to hate speech, too narrow a focus on concrete cases might present, at first sight, the impression that the cases the comparatist is using are incommensurable as detailed facts may differ across jurisdictions. By enlarging the focus, however, the researcher may be able to detect a ‘collective consciousness’ in the US that points towards a greater sphere of permissibility of hate speech, as opposed to a ‘collective consciousness’ in favour of limitations in France. 18 x On this point see Tourkochoriti Freedom of Speech (manuscript). Feyerabend’s insight that approximations play a very important role in the positive sciences (Feyerabend 1988, p. 49) is very important for the task of the comparativist. Comparative law is to a great extent based on ad hoc approximations, which allow for commensurability. As Feyerabend notes, in some circumstances defending ad hoc hypotheses or hypotheses that contradict established results is the best way to increase knowledge (Feyerabend 1988, pp. 14-15). Transposed to the area of law, this means that the researcher is free to choose the cases she considers worthy of studying and should try to be innovative in her approach as only this creativity can promote knowledge and reflection on the justice of our rules. Nevertheless, she needs to propose and justify why she thinks there is commensurability in the cases she is studying. For instance, comparing the attitudes of the US and France towards free speech makes for a good case of comparison if the researcher provides as a justification that these countries, although sharing the same background of the Enlightenment, react differently towards a right that is at the heart of the Enlightenment, the right to freedom of expression. The researcher also has the possibility to modify her research question in a way that makes for a better commensurability (Valcke & Grellette 2015). 19 x Husa 2015 defines the method of comparative law as a process articulated in several phases, characterized frequently by setbacks, at p. 54. The researcher has the possibility to redefine her research question during a process in a way that approximates commensurability. In the wider area of free speech issues she needs to choose cases that allow for commensurability, and she needs to justify why this is the case. If the comparatist decides to compare cases of rights that do not fit the same background ideology as the aforementioned example of free speech, then she will have to explain why it makes sense to engage in this comparison of these elements and propose the points of commensurability she considers are important (see Tourkochoriti manuscript). Second, challenges emerge for the comparatist concerning the choice of the research question, the theoretical framework and the evaluating criteria that the researcher uses. In other words, the validity of the interpretative schemata that she refers to or creates herself in order to interpret the legal phenomena she is studying is conditioned by her perspective. For instance, an attempt to compare the understanding of socio-economic rights in different jurisdictions presupposes an effort to reconstruct the socio-economic origins of legal rules. This effort poses some challenges that concern the possibility to take all the relevant factors into consideration. As Clifford Geertz has noted, the law is a system of meaning in a dialectic relation with social context: it constitutes social relations and is constituted by them (Geertz 2010, pp. 182, 184, 230; see also Mautner 2011). Geertz warns against a challenge that emerges in any comparative approach: ‘to formulate the presuppositions, the preoccupations, and the frames of action characteristic of one sort of legal sensibility in terms of those characteristic of another’ (Geertz 1983, p. 218). 20 x See also Mark Van Hoecke 2015, noting that the danger always exists that looking at concepts, rules institutions in other societies happens at the background of the researcher’s legal system and doctrinal framework, at p. 27. Pierre Legrand 1999 also notes the ‘cultural’ unconscious elements that may be perspectival obstacles to understanding another legal mentality. The danger exists that since the study will aim to reflect on the justness of concrete human rights rules, the sensibilities and the evaluating criteria will be conditioned from the researchers’ point of view. This conditioning affects the very framing of the research question, the interpretative schemes as well as the conclusions of the researcher. For instance, a researcher who aims to engage in a comparison of how anti-discrimination law operates in the US and the EU has already an understanding of some important legal concepts that is formed in the context where she received her legal education. The same study presupposes that the researcher has an understanding of anti-discrimination law that is formed within a legal context and its own sociopolitical origins. Her research question, the case studies of anti-discrimination law that she considers important and commensurable, will be defined by her ex ante understanding of all these concepts, which is formed in a concrete social and political context. The interpretative scheme that she will use to approach her topic and her conclusions will very likely be conditioned by her formation and her circumstances. A study on socio-economic rights presupposes an understanding and definition of what counts as a ‘socio-economic right’, which is formed in a context of meaning. To some extent the fact that the researcher’s questions, interpretative schemata and conclusions will be conditioned by her situation in a context of formation and meaning is inevitable. Since thinkers such as Wilhelm Dilthey, Edmund Husserl and Martin Heidegger pointed towards the verstehen approach as a basic feature of human existence; this approach gained ground as the appropriate way of making sense of social phenomena in the social sciences. This approach presupposes recognition of the subjectivity of the researcher in making sense of social reality. Max Weber has insisted on the need for researchers to isolate their world views in their approach of their topic (Weber 2003, p. 374). Ideally, for Weber the researcher should be able to distinguish between her belief in the validity of the values she espouses and the object of her study (Ibid., pp. 362-363). Weber recognizes the difficulties inherent in any such enterprise and nevertheless makes a distinction between ‘value judgments’, which concern the validity of ethical norms that motivate our beliefs, and ‘experiential knowledge’, the need for ‘conceptually ordering empirical reality in such a manner as to lay claim to validity as experiential truth (Ibid, p. 365). Weber notes that this does not mean that cultural scientific research can have results that are valid only for one person and not for another. The investigator is bound to the norms of thought. Weber seems to believe that it is possible for the social sciences to organize their material as a system of concepts that can be perfected through the observation of empirical regularities. This approach has been the object of criticism. Jürgen Habermas has noted that concept formation presupposes familiarity with language. This means that the researcher always has an ex ante understanding formed on the basis of a pre-theoretical knowledge of terms and concepts (Habermas 1981, p. 110). Furthermore, Habermas has noted that understanding in the social sciences has a communicative and performative dimension to the extent that it presupposes an engagement with values in the very formation of a concept and with how other human beings understand values (Ibid., p. 113). For instance, a researcher cannot make sense of the meaning of a right unless she interacts with the legal actors and authors who make sense of what a right is in contexts of social action. This implies that the researcher must consider the reasons that legal actors can have in various contexts for accepting the validity claims for a right, and they are themselves drawn into the process of assessing these validity claims (Ibid., p. 115). Weber himself understands that in the area of evaluation of legislation the distinction between value judgments and experiential knowledge is impossible. A critique of legislation implies ‘confrontation of value standards with others and ideally with one’s own’. And Weber recognizes that the concept of culture is an evaluative concept presupposing the choice of a particular perspective (Weber 2003, p. 377). The construction of our concepts depends on the posing of the problems. In this respect any cultural scientific knowledge cannot escape some presuppositions that are made by the researcher. In the area of comparative law concerning human rights issues the difficulties are even greater. In the area of the normative science that is the law, the difficulties in adopting this ‘objective’ point of view become more obvious. Questions of balancing rights involve a judgment of value, a commitment to a perspective in favour of some greater or lesser degree of protection of a right. The very definition of what constitutes a right presupposes a position and a situated understanding formed in a social context through communicative experience with others. This is all the more obvious in the case of socio-economic rights, given that there is significant disagreement all around the world about what should count as a socio-economic right. Hans-Georg Gadamer has noted that the researcher’s understanding of concepts and values is defined by her situation in a context of formation (Gadamer 2004, p. 235). This context conditions the ideas of the researcher. The researcher, in her effort to make sense of a text or a social phenomenon, carries in herself prejudices some of which are conscious and some unconscious. It is impossible to the legal researcher, as social scientist, to dissipate the unconscious prejudices in her effort to make sense of a new legal culture (Ibid.; see also Legrand 2011; 1995, p. 266). Nevertheless, even Gadamer seems to point towards a moral obligation for openness on the part of the social scientist. Gadamer discusses Martin Heidegger’s analysis of the hermeneutical circle (Heidegger 1962, p. 153). According to the metaphor of the circle, the process of understanding follows a circular movement in which the interpreter of a text initially projects some of her own ex ante understandings of the text in the meaning of the text. As the reading of the text progresses, the interpreter verifies her own ex ante understandings and preconceptions on the meaning of the text in reference to the newness of the text. For the comparatist as a social scientist, this means that she should be open to the newness of the material that she is studying. The legal researcher conducting a study in comparative law as a social scientist is conditioned by her circumstances, her weltanschauung and her conception of justice in her attempt to make sense of the legal rules in various contexts (cf. Gadamer 2004, p. 238). This is especially so for the comparativist whose understanding of the legal rules worthy of comparison is already conditioned by her situation in a legal culture. To some extent her interpretations will be conditioned and biased. Nevertheless, there is a standing moral obligation on behalf of the researcher to try to moderate her own prejudices and biases to the extent that this is possible. Arguably, moderation is the first maxim of virtue ethics. 21 x See Michael Frazer, ‘The Ethics of Causal and Interpretive Social Explanations’, Paper presented at the National University of Ireland Galway School of Law’s Legal and Political Theory Workshop, 8th April 2016, p. 19. The comparatist should be motivated primarily by respect of the collective experience consecrated through law that she studies, given that the law is much more than a facilitator of transactions (see Cotterrell 2006, p. 734), especially so in the area of rights. Furthermore, collaboration among researchers and openness to a wide variety of research materials globally can help moderate the impact of the researcher’s preconceptions on her work. The researcher will need to remain in close communication with legal actors and social scientists operating in the legal culture she is studying. Teamwork between scholars from different disciplines (cf. Husa 2014) as well as between scholars from the various legal and sociopolitical contexts studied will contribute to eliminating biases that come from one researcher’s methodological and sociopolitical background. Another concern that scholars have noted with approaches (a) and (c) proposed in this article is that following them might lead to getting entrapped in the social relativity of the various legal traditions under consideration, which means that the researcher becomes unable to engage in a reflective equilibrium between how various legal systems protect a right and how this right should be protected. 22 x For a presentation of this challenge see Samuel 1998, pp. 817-836, 823-824. Following this methodology thus means reducing law to the social and geographical relativity of ideology and negating the possibility of a theoretical reflection on the law. It would also mean that comparative law would be just a methodology that cannot necessarily provide any helpful reflections about what is the law. 23 x Ibid., at p. 827. In other words, comparative law needs a methodology, which promotes knowledge of the law as a normative science. Habermas’s analysis of the methodology of the social scientist as a communicative practice can help respond to this concern that comparatists may have as well. It helps restore a view that comparative law actually promotes the knowledge of what the law is. 24 x Geoffrey Samuel underlines this need for an understanding of comparative law as an epistemology, as a scientific discourse that promotes the knowledge of what is the law. The law is a science between the is and the ought . 25 x As Jürgen Habermas (1996) has analysed extensively. It is composed of a set of rules followed or not, written or not. To a great extent it is situated in place and time and expresses and consolidates social interests, local attitudes and consolidations of social power. Nevertheless, it has a normative character as well. It inevitably concerns how human beings should interact. This element points towards the search for a normative validity that transcends its facticity (Habermas 1996, p. 31). This means that the effort to describe legal rules always leads to the adoption of a position on the validity of these rules. Habermas’s analysis of the communicative nature of any analysis in the social sciences is relevant for the comparative law scholar (Habermas 1981, pp. 119-121). Since the researcher studies rights, which are a subcategory of legal rules, interaction with the purpose and the importance of a right implies making a validity claim on the right that the researcher studies from a comparative perspective. It means that by the very fact of engaging in this comparative approach she engages in a communicative perspective where she is forced to test her own value commitments in reference to those of the various foreign legal orders that she is studying. This communicative dimension of the research provides the critical means to transcend her ex ante understandings and the schemata she projects in order to approach her topic. Also, the very object of the study, a comparison, provides for the possibility of a reflective self-control of the process of comparison. The confrontation of the social contexts can lead to reflecting on them in a way that transcends their particularity. The comparativist constitutes and hypostasizes the object of her study, the study of a legal order’s attitude towards the protection of a right. Gadamer’s articulation of the hermeneutical circle (Gadamer 2004, pp. 272 seq.) is very helpful on this point. Ideally, the researcher will test her ex ante understanding of the dominant political ideas and interpretative schemata offered by others in reference to her new findings concerning the law in operation. A comparative law study offers an exemplary opportunity for what Gadamer calls the ‘fusion of horizons’ (Ibid.) between the author and the reader of the text. In Gadamer’s thought both the reader and the author of the text are situated in a sociopolitical context that defines their approach to the text, but at the same time they both aspire to transcend their situation. This is what the metaphor of the ‘horizon’ denotes. The person who gazes at a ‘horizon’ has a perspective that is situated. At the same time, it is a horizon that she gazes at. She is trying to extend her gaze beyond what surrounds her, towards the limitless. She is a finite being aspiring to the limitless. This is what Kant also had in mind when he described the condition of humanity as positioned to scan the heavens (Kant 1991, p. 63). She is making an effort to transcend her circumstances to the extent that this is possible. The difference between Kant and Gadamer lies in the extent of what they consider to be possible. Kant advocates the use of a priori reason, while Gadamer sees reason itself as situated. In the case of the comparativist the researcher is guided by her own assumptions defined by her own background. Nevertheless, comparative law is a communicative process. She is also guided by the expectation to discover the meaning of the new conception of the right that she studies that a foreign sociopolitical context assigns to it. In her effort to understand the validity of a right, she is inquiring into the validity of the rules themselves that she is studying. Rights are rules that regulate social interaction, and as such they are associated with validity claims. Reaching an understanding concerning this validity of a rule means that the researcher needs to discover the reasons that make possible an intersubjective recognition of the validity of the rule within a legal order. Strong collaboration and engagement with the way legal actors of the legal culture under study understand the need to protect a right is necessary and constitutive of this understanding. This presupposes an engagement with the political discourse of the legal system under consideration, which leads to blurring of the line of the practical and the theoretical. 26 x Cf. Michael Frazer, supra n. 21. This discussion has the potential to transcend the validity for this context under study and to reflect in abstracto on the validity of the limitations of a right as such. This means that the very nature of her study incites her to reflect on reasons that would intersubjectively be valid in reference to the proper limitations of a right. Habermas notes that a component of action coordination is inherent in the study of the social scientist. This is also present in the work of the comparatist. If the law is the science that par excellence aims at coordinating action, then the evaluation of validity of legal rules is, by definition, part of any effort to study action coordination. For cases of rights this means that the researcher is thus motivated to enlarge her definitions of and her understanding of validity claims in reference to the case she is studying. What kind of balancing of this right against other rights or collective considerations can be the best possible in one case or another? In this respect the comparatist will be led to offer a justification of her definitions and of the validity of the legal norms that she is studying. This can also be phrased as a moral obligation to the legal researcher to confront her own values to those she is studying. An example can be helpful here. The study of headscarf bans in various European states presupposes an effort of the researcher to engage thoroughly with the socio-political context that makes these headscarf bans acceptable. 27 x For an analysis in this spirit see Tourkochoriti 2012. What is the dominant philosophy on the role of the government that makes these limitations legitimate? The comparativist may be motivated by her own conception for or against the ban, and in this effort she may be prevented from actually engaging seriously with the ideas and the arguments on the other side. Nevertheless, as analysed earlier, a comparative enterprise is a communicative enterprise; the researcher aims at establishing the importance and the validity of the regulation of a human right within the sociopolitical context of her study. In this respect there is a moral requirement for openness to the newness of the sociopolitical context under study. Understanding this sociopolitical context implies also understanding why in that context this legal rule is valid. The reasons for this validity may be different from the ones that the comparativist is projecting upon the object of her study. Her project thus implies making an implicit claim about its validity. Ideally, the researcher will corroborate her projections with scholars trained in the legal system she is studying. Furthermore, understanding the validity of these limitations does not necessarily mean accepting them. This claim can lead to a reflection on the validity of these limitations on the basis of an abstract theory on the legitimate role of the government in the regulation of headscarves in various social contexts such as schools and workplaces. The very study of this normative question will lead to a normative interrogation of the just limits of government intervention in regulating the wearing of headscarves in public places.

• 5. Conclusion

This article discussed three possible approaches a researcher can follow when she engages in comparative rights jurisprudence. The choice of these three methods, among many other possible ones, depends on the aims of the researcher. First, the researcher may aim to propose a theoretical framework for understanding differences or similarities in the protection of rights among various legal systems. This will mean engaging in a study that focuses on the social and political context that led to the elaboration of similarities or differences in the protection of rights. Elements of philosophy of history are intertwined with this approach to the extent that a reflection on the meaning of some historical events can make sense from a comparative point of view in reference to some broader philosophical ideas. In the area of rights this approach implies studying theories of government and seeing how jurists and other political actors made sense of them in order to respond to their sociopolitical needs. Second, a researcher may engage in a normative enterprise. This means she may be interested in reflecting critically upon differences and similarities in the regulation of rights in order to propose ways of regulating rights that are in conformity with principles of justice. This approach focuses on engaging in a philosophical analysis informed by the study of differences or similarities in the regulation of rights. The study of differences and similarities in the balancing of rights can provide stimuli for a philosophical reflection on the proper balancing of rights. Third, a researcher may engage in an approach that combines elements from both these approaches. This means that she can engage first in understanding similarities or differences. Then this understanding may lead her to reflect critically on elaborating ways that can improve the state of the law. The study of the operation of the law in different contexts can provide insights into how they should be operating in order to protect rights better. This can provide guidance for future cases. According to this method, the comparative law means challenging the existing philosophical and sociopolitical frames that led to the elaboration of similarities and differences and reflecting on how the law can express principles of justice. This last approach is important in view of bringing about social change through the law. It is based on the idea that the researcher can reach a reflective equilibrium between how the law operates and how it should operate. All three approaches presuppose interdisciplinarity. The researcher needs to engage with research in social sciences, and this can help her understand the political and social purposes of legal rules. As such, all these approaches are extremely challenging for the researcher. They are challenging because of their ambitious interdisciplinary character. Comparative law involves transcending the researcher’s comfort zone as it implies studying legal rules in different social and political contexts from the researcher’s own legal system. 28 x I am grateful to David Oppenheimer for this point. It also implies expanding the horizons of one’s knowledge in the area of neighbouring disciplines, which can be extremely demanding. First, challenges concern the commensurability of the cases of rights under comparison. The researcher will need to ensure that the cases she is studying are comparable and that the comparison is worthwhile as it promotes the reflection on the justness of rules protecting rights. A second set of challenges relate to the difficulty in transcending the comparatist’s subjectivity. The comparatist’s formation in a context of meaning leads her to project meanings in her effort to make sense of the protection of rights in different legal contexts. These projections concern the formation of the research question, the choice of interpretative schemes and the conclusions of the researcher. Some prejudices, conscious and unconscious, will always condition her efforts to make sense of something new. The researcher has a moral obligation to check her prejudices to the extent that this is possible. She has a moral obligation to be open to the question she is studying. Overcoming one’s limited perspective also can be facilitated through collaborations with scientists coming from other disciplinary backgrounds as well as with jurists coming from the foreign legal system that she is studying. Another set of challenges concern the difficulties that emerge in the very possibility to reflect critically about the law if our reflection is conditioned by our situation in a context of formation and social meanings. The nature of the activity the comparatist is engaged in can lead to transcending this challenge. Studying legal rules that protect rights always implies taking a position on the rights under consideration. The law is a normative discipline. A purely descriptive attitude towards it is impossible. Since this is the case the researcher in her effort to adopt a position will come up with criteria of justice that, to some extent, transcend her situation in a context of formation. The researcher will be led to think in abstracto about the just character of the rules protecting rights she is studying. Comparative law offers the researcher the liberty to define her area of research, the goals of the research and the choice of methodology that is appropriate to her research. Nevertheless, liberty in the choice of methodology of comparative law does not mean anarchy. In the discourse of the legal science, which has as object a normative phenomenon, the law, justification is very important. Every legal interpreter of the law as a normative phenomenon is, by definition, involved in a process that leads him to present a justification of her choice of cases, methodology and validity of conclusions. She is also often forced to provide a justification that makes intersubjectively valid the substantive question that she studies. The liberty that the comparatist has in her choice of topic and methods can be the most creative element that can inspire a philosophical reflection on the very meaning and purpose in the area of rights jurisprudence. It can contribute to refining our evolving sense of justice in these issues. Every jurist that engages in legal interpretation is trying to reconstruct the meaning of a legal text. This is all the more the case for the legal comparatist. Even if to some extent despite the comparatist’s efforts ‘foreign laws’ singularity remains unsaturable’, 29 x Pierre Legrand, ‘Foreign Law: Understanding Understanding’, 89. the attempt to make sense of foreign legal cultures and to use this understanding in promoting a better vision about the law is always valuable. The researcher should be conscious of her limits. As William Ewald notes, comparative law is ‘an essentially philosophical enterprise’ 30 x William Ewald, ‘Comparative Jurisprudence (I): What Was it Like to Try a Rat?’, 1947. aiming to uncover the reasons and justifications that underlie legal rules seeking answers to legal questions. As such, it is submitted to the inherent limits of philosophy itself. Nevertheless, the limits and challenges should not be a discouraging element but an encouraging one. The effort is all the more worthwhile as it can always incite a theoretical reflection towards the improvement of our legal ideas and, by extension, of our legal rules.

Adams, M. & Griffiths, J. (2012) Against ‘comparative method’: explaining similarities and differences. In Adams M. and Bomhoff, J. (Eds.), Practice and theory in comparative law (pp. 279-301). Cambridge University Press.

Bomhoff, J. (2008). Balancing, the global and the local: judicial balancing as a problematic topic in comparative (constitutional) law. Hastings Int’l & Comp. L. Rev ., 31: 555-586.

Brand, O. (2006-2007). Conceptual comparisons: towards a coherent methodology of comparative legal studies. Brooklyn Journal of International Law , 32: 405-466.

Cotterrell, R. (2006). Comparative law and legal culture. In M. Reimann & R. Zimmermann (Eds.), The Oxford Handbook of Comparative Law (pp. 709-737). Oxford University Press.

Cotterrell, R. (2016). Law, culture and society, legal ideas in the mirror of social theory . London: Routledge.

Dannemann, G. (2006). Comparative law: study of similarities or differences? In M. Reimann & R. Zimmermann (Eds.), The Oxford handbook of comparative law (pp. 383-419). Oxford University Press.

Durkheim Émile, (Coser, L.A. trans.) (1984 [1893]). The division of labor in society . New York: The Free Press.

Ewald, W. (1995). Comparative jurisprudence (I): what was it like to try a rat? University of Pennsylvania Law Review , 143: 1889-2149.

Ewald, W. (1998). The jurisprudential approach to comparative law. The American Journal of Comparative Law , 46: 701-707.

Feyerabend, P. (1988 [1975]). Against method . London, New York: Verso.

Foucault, M. (1977). Discipline & punish . (Alan Sheridan, trans.). New York: Vintage Books.

Foucault, M. (2010). The archaeology of knowledge . (A.M. Sheridan Smith, trans.). New York: Vintage Books.

Gadamer, H.G. (2004). Truth and method (J. Weinshemere & D.G. Marshall trans., 2d 3d).

Geertz, C. (1993). Local knowledge: further essays in interpretive anthropology . London: Fontana.

Glendon, M.A., Carozza, P.G., & Picker, C.B. (2007). Comparative legal traditions . (St.Paul Minessota, Thomseon/West).

Glenn, P. (2015). Against method. In Adams M. & Heirbaut D. (Eds.), The method and culture of comparative law: essays in honour of Mark Van Hoecke (pp. 177-188). Oxford: Hart.

Grosswald Curran, V. (1998). Cultural immersion: difference and categories in U.S. comparative law. American Journal of Comparative Law , 46: 43-92.

Habermas, J. (1996). Between facts and norms, contributions to a discourse theory of law and democracy . (W. Regh trans.). MIT Press.

Habermas, J. (1981). Theory of communicative action , vol. I. Reason and the Rationalization of Society . (T. McCarthy trans.). Boston: Beacon Press.

Hart, H.L.A. (1961). The concept of law . Oxford: Calrendon Press.

Hegel, F. (1991). The philosophy of history . (J. Sibree trans.). Amherst: Prometheus Books.

Heidegger, M. (1962). Being and time . (J. Macquarrie & E. Robinson trans.).

Hirschl, R. (2005). The question of case selection in comparative constitutional law. American Journal of Comparative Law , 53: 125-155.

Husa, J. (2014). Interdisciplinary comparative law – between Scylla and Charybdis? The Journal of Comparative Law , 9: 28-42.

Husa, J. (2015). Research designs of comparative law – methodology or heuristics? In Adams M. & Heirbaut D. (Eds.), The method and culture of comparative law: essays in honour of Mark Van Hoecke (pp. 53-68).

Kant, I. (1991). On the common saying: it may be true in theory, but it does not apply in practice. In S. Reiss (Ed.) (H.B. Nisbet trans.). Political writings (pp. 61-92). Cambridge University Press.

Leckey, F. (2017). Review of comparative law. Social & Legal Studies , 26: 3-24.

Legrand, P. (1995). Comparative legal studies and commitment to theory. Modern Law Review , 58: 262-273.

Legrand, P. (1999). Fragments on law as culture . W.E.J. Tjeenk Willink, Schoordijk-Instituut.

Legrand, P. (2011). Foreign law: understanding understanding. Journal of Comparative Law , 6(2): 67-177.

Matagrin, A. (1910). La psychologie sociale de Gabriel Tarde . Paris: Félix Alcan.

Mautner, M. (2011). Three approaches to law and culture. Cornell Law Review , 96: 839-867.

McCrudden, C. (2017). What does it mean to compare, and what should it mean? In Comparing comparative law . Publications of the Swiss Institute of Comparative Law. Geneva/Zurich: Schulthess Editions Romandes 61-84.

Nelken, D. (2016). Comparative legal research and legal culture: facts, approaches, and values. The Annual Review of Law and Social Science , 12: 45-62.

Newcomb Hohfeld, W. (1964 [1913]). Some fundamental legal conceptions as applied in legal reasoning. New Haven: Yale University Press.

Palmer, V.V. (2005). From Lerotholi to Lando: some examples of comparative law methodology. The American Journal of Comparative Law , 47: 261-290.

Paris, M-L. (2016). The comparative method in legal research: the art of justifying choices. In L. Cahillane & J. Schweppe (Eds.), Legal research methods: principles and practicalities (pp. 39-55). Dublin: Clarus Press.

Rawls, J. (1973). A theory of justice . Oxford University Press.

Riles, A. (2006). Comparative law and socio-legal studies. M. Reimann & R. Zimmermann (Eds.), The Oxford handbook of comparative law (pp. 775-813). Oxford University Press.

Samuel, G. (1998). Comparative law and jurisprudence. International and Comparative Law Quarterly , 47: 817-836.

Schwartz, P.M. (2013). The EU-U.S. privacy collision: a turn to institutions and procedures. Harv. L.R .. 126: 1966-2009.

Schwartz, P.M. & Solove, D.J. (2014). Reconciling personal information in the United States and European Union. California Law Review , 102: 4, 877 - 916.

Smits, J. (2012). Rethinking methods in European private law. In Adams M. & Bomhoff, J. (Eds.), Practice and theory in comparative law (pp. 170-185). Cambridge: Cambridge University Press.

Suk, J. (2007a). Discrimination at will: job security protections and equal employment opportunity in conflict. Stanford Law Review , 60: 73-113.

Suk, J. (2007b). From antidiscrimination to equality: stereotypes and the life cycle in the United States and Europe. The American Journal of Comparative Law , 60: 75-98.

Tarde, G. (1893). Les monades et la sociologie. Révue Internationale de Sociologie 157-175, 231-246.

Tourkochoriti, I. (2012). The burka ban: divergent approaches to freedom of religion in France and in the U.S.A. Wm. & Mary Bill Rts. J ., 20: 799 - 852.

Tourkochoriti, I. (2013). Revisiting Hosanna-Tabor v. E.E.O.C.: the road not taken. Tulsa Law Review , 49: 47-98.

Tourkochoriti, I. (2014a). Should hate speech be protected? Group defamation, party bans, holocaust denial and the divide between (France) Europe and the United States. Columbia Human Rights Law Review , 45: 552-622.

Tourkochoriti, I. (2014b). The transatlantic flow of data and the national security exception in the European data privacy regulation: in search for legal protection against surveillance. University of Pennsylvania Journal of International Law , 36: 459-524.

Tourkochoriti, I. (2015). ‘Disparate impact’ and ‘indirect discrimination’: assessing responses to systemic discrimination in the U.S. and the E.U. European Journal of Human Rights , 3: 297-324.

Tourkochoriti, I. (2017). Jenkins v. Kingsgate and the migration of the U.S. disparate impact doctrine in EU law. In F. Nicola & B. Davies (Eds.), EU law stories (pp. 418-445). Cambridge University Press.

Tourkochoriti, I. Freedom of speech: a philosophical inquiry into the revolutionary roots of American and French legal thought . (manuscript).

Tushnet, M. (1998-1999). The possibilities of comparative constitutional law. Yale Law Journal , 108: 1225-1309.

Tushnet, M. (2017). The boundaries of comparative law. European Constitutional Law Review , 13: 13-22.

Valcke, C. (2004). Comparative law as comparative jurisprudence – the comparability of legal systems. American Journal of Comparative Law , 52: 713-740.

Valcke, C. (2012). Reflections on comparative law and methodology – getting inside contract law. In Adams M. & Bomhoff, J. (Eds.), Practice and theory in comparative law (pp. 22-48). Cambridge: Cambridge University Press.

Valcke, C. & Grellette, M. (2015). Three functions of function in comparative legal studies. In M. Adams & D. Heirbaut (Eds.), The method and culture of comparative law: essays in honour of Mark Van Hoecke (pp. 99-111). Oxford: Hart.

Van Hoecke, M. (2015). Methodology of comparative legal research. Law and Method , 15: 1-35.

Weber, M. (2003). The objectivity of knowledge in social science and social policy. In S. Whimster (Ed.), The essential Weber, a reader (p. 374). London and New York: Routledge.

Whitman, J. (2003). Harsh punishment and the widening divide between Europe – U.S.A . Oxford University Press.

Whitman, J.Q. (2004). The two western cultures of privacy: dignity versus liberty. The Yale Law Journal , 113: 1151-1221.

Whitman, J.Q. (2005). ‘Human dignity’ in Europe and the United States: the social foundations. In G. Nolte (Ed.), European and US constitutionalism (pp. 98 seq.). Strasbourg: Council of Europe Publishing, col. Science and technique of democracy.

Whitman, J.Q. (2000). Enforcing civility and respect: three societies. Yale Law Journal , 109: 1279-1398.

1 Although Rawls uses the concept in moral theory to describe a way of reasoning from moral intuitions to moral principles founded on reason, I use it here in the dialectic between the is and the ought .

2 Mark Tushnet notes that in the area of comparative law ‘The boundary between law and other academic disciplines has become blurred’, Tushnet 2017, p. 17.

3 The idea of ‘legal culture’ has been criticized by many comparatists as being very vague and difficult to define as such. See Nelken 2016; Riles 2006; Cotterrell 2006, p. 140.

4 For an extended analysis of free speech from this perspective, see Whitman 2000, pp. 1279-1398.

5 For this definition see Tushnet 1998-1999, p. 1228.

6 For instance, for his analysis of the French Revolution see p. 450 seq.

7 For an analysis of the ban on wearing conspicuous signs of religious affiliation in France, dictated by conception of secularism from the top to the bottom, see Tourkochoriti 2012.

8 William Ewald advocates a similar approach in Ewald 1995, p. 1944.

9 In this respect, this methodological approach lies beyond the debates on whether comparative law scholarship should focus on similarities or differences. Both can be equally helpful in stirring a theoretical reflection on the need to protect a right, and under what circumstances limits to the protection of this right may be accepted. See Dannemann 2006.

10 For this definition of functionalism, see Tushnet 1998-1999, p. 1228.

11 Ibid., p. 1265.

12 This thought is largely inspired by Samuel 1998, p. 833.

13 For a focus on cultural immersion as a prerequisite for effective comparative analysis, see also Grosswald Curran 1998.

14 Although Rawls uses the concept in moral theory to describe a way of reasoning from moral intuitions to moral principles founded on reason, I use it here in the dialectic between the is and the ought .

15 Hosanna Tabor v. E.E.O.C ., 565 U.S. 171 (2012).

16 For a study that follows this methodology on this topic, see Tourkochoriti 2013.

17 See infra p. 25.

18 On this point see Tourkochoriti Freedom of Speech (manuscript).

19 Husa 2015 defines the method of comparative law as a process articulated in several phases, characterized frequently by setbacks, at p. 54. The researcher has the possibility to redefine her research question during a process in a way that approximates commensurability.

20 See also Mark Van Hoecke 2015, noting that the danger always exists that looking at concepts, rules institutions in other societies happens at the background of the researcher’s legal system and doctrinal framework, at p. 27. Pierre Legrand 1999 also notes the ‘cultural’ unconscious elements that may be perspectival obstacles to understanding another legal mentality.

21 See Michael Frazer, ‘The Ethics of Causal and Interpretive Social Explanations’, Paper presented at the National University of Ireland Galway School of Law’s Legal and Political Theory Workshop, 8th April 2016, p. 19.

22 For a presentation of this challenge see Samuel 1998, pp. 817-836, 823-824.

23 Ibid., at p. 827.

24 Geoffrey Samuel underlines this need for an understanding of comparative law as an epistemology, as a scientific discourse that promotes the knowledge of what is the law.

25 As Jürgen Habermas (1996) has analysed extensively.

26 Cf. Michael Frazer, supra n. 21.

27 For an analysis in this spirit see Tourkochoriti 2012.

28 I am grateful to David Oppenheimer for this point.

29 Pierre Legrand, ‘Foreign Law: Understanding Understanding’, 89.

30 William Ewald, ‘Comparative Jurisprudence (I): What Was it Like to Try a Rat?’, 1947.

  E-mailattendering

• ↑ Naar boven

Journal code: 23527927

Journal title: Law and Method

Journal id: 114364

Meld een fout Suggestie? Disclaimer © Boom juridisch

(Stanford users can avoid this Captcha by logging in.)

• Send to text email RefWorks EndNote printer

The method and culture of comparative law : essays in honour of Mark Van Hoecke

Available online, at the library.

Law Library (Crown)

More options.

• Find it at other libraries via WorldCat
• Contributors

Description

Creators/contributors, contents/summary.

• 1. Prolegomena to the Method and Culture of Comparative Law Maurice Adams and Dirk Heirbaut
• 2. What is Legal Epistemology? Geoffrey Samuel
• 3. Comparative Law as Method and the Method of Comparative Law Jaap Hage
• 4. Research Designs of Comparative Law-Methodology or Heuristics? Jaakko Husa
• 5. Law as Translation Francois Ost
• 6. Controlled Comparison and Language of Description Maurice Adams
• 7. Three Functions of Function in Comparative Legal Studies Catherine Valcke and Mathew Grellette
• 8. Comparative Law and Legal History: A Few Words about Comparative Legal History Martin Loehnig
• 9. Comparative Contexts in Legal History: Are We All Comparatists Now? Heikki Pihlajamaki
• 10. The Curious Case of Overfi tting Legal Transplants Mathias M Siems
• 11. 'Ius commune', Comparative Law and Public Governance Alain Wijffels viii
• 12. Things Being Various: Normativity, Legality, State Legality Sean Patrick Donlan
• 13. Against Method? H Patrick Glenn
• 14. Comparatively Speaking: 'Law in its Regulatory Environment' Roger Brownsword
• 15. The Importance of Institutions John Bell
• 16. Live and Let Die: An Essay Concerning Legal-Cultural Understanding Jorn Oyrehagen Sunde
• 17. Policy and Politics in Contract Law Reform in Japan Souichirou Kozuka and Luke Nottage
• 18. The Eurocrises and What Socio-legal Studies Could Do about Them, or: Comparing European Pluralisms from Legal Cultural Approaches Joxerramon Bengoetxea
• 19. Comparing the Legitimacy of Constitutional Court Decision- Making: Deliberation as Method Toon Moonen
• 20. Making the Case for European Comparative Legal Studies in Public Law Susan Millns
• 21. Comparative Law and EU Legislation: Inspiration, Evaluation or Justifi cation? Rob van Gestel and Hans-W Micklitz.
• (source: Nielsen Book Data)

Bibliographic information

Browse related items.

• Stanford Home
• Maps & Directions
• Search Stanford
• Emergency Info
• Terms of Use
• Non-Discrimination
• Accessibility

© Stanford University , Stanford , California 94305 .

• Search Menu
• Browse content in Arts and Humanities
• Browse content in Archaeology
• Anglo-Saxon and Medieval Archaeology
• Archaeological Methodology and Techniques
• Archaeology by Region
• Archaeology of Religion
• Archaeology of Trade and Exchange
• Biblical Archaeology
• Contemporary and Public Archaeology
• Environmental Archaeology
• Historical Archaeology
• History and Theory of Archaeology
• Industrial Archaeology
• Landscape Archaeology
• Mortuary Archaeology
• Prehistoric Archaeology
• Underwater Archaeology
• Urban Archaeology
• Zooarchaeology
• Browse content in Architecture
• Architectural Structure and Design
• History of Architecture
• Residential and Domestic Buildings
• Theory of Architecture
• Browse content in Art
• Art Subjects and Themes
• History of Art
• Industrial and Commercial Art
• Theory of Art
• Biographical Studies
• Byzantine Studies
• Browse content in Classical Studies
• Classical Literature
• Classical Reception
• Classical History
• Classical Philosophy
• Classical Mythology
• Classical Art and Architecture
• Classical Oratory and Rhetoric
• Greek and Roman Papyrology
• Greek and Roman Archaeology
• Greek and Roman Epigraphy
• Greek and Roman Law
• Late Antiquity
• Religion in the Ancient World
• Digital Humanities
• Browse content in History
• Colonialism and Imperialism
• Diplomatic History
• Environmental History
• Genealogy, Heraldry, Names, and Honours
• Genocide and Ethnic Cleansing
• Historical Geography
• History by Period
• History of Emotions
• History of Agriculture
• History of Education
• History of Gender and Sexuality
• Industrial History
• Intellectual History
• International History
• Labour History
• Legal and Constitutional History
• Local and Family History
• Maritime History
• Military History
• National Liberation and Post-Colonialism
• Oral History
• Political History
• Public History
• Regional and National History
• Revolutions and Rebellions
• Slavery and Abolition of Slavery
• Social and Cultural History
• Theory, Methods, and Historiography
• Urban History
• World History
• Browse content in Language Teaching and Learning
• Language Learning (Specific Skills)
• Language Teaching Theory and Methods
• Browse content in Linguistics
• Applied Linguistics
• Cognitive Linguistics
• Computational Linguistics
• Forensic Linguistics
• Grammar, Syntax and Morphology
• Historical and Diachronic Linguistics
• History of English
• Language Evolution
• Language Reference
• Language Variation
• Language Families
• Language Acquisition
• Lexicography
• Linguistic Anthropology
• Linguistic Theories
• Linguistic Typology
• Phonetics and Phonology
• Psycholinguistics
• Sociolinguistics
• Translation and Interpretation
• Writing Systems
• Browse content in Literature

Bibliography

• Children's Literature Studies
• Literary Studies (Romanticism)
• Literary Studies (American)
• Literary Studies (Modernism)
• Literary Studies (Asian)
• Literary Studies (European)
• Literary Studies (Eco-criticism)
• Literary Studies - World
• Literary Studies (1500 to 1800)
• Literary Studies (19th Century)
• Literary Studies (20th Century onwards)
• Literary Studies (African American Literature)
• Literary Studies (British and Irish)
• Literary Studies (Early and Medieval)
• Literary Studies (Fiction, Novelists, and Prose Writers)
• Literary Studies (Gender Studies)
• Literary Studies (Graphic Novels)
• Literary Studies (History of the Book)
• Literary Studies (Plays and Playwrights)
• Literary Studies (Poetry and Poets)
• Literary Studies (Postcolonial Literature)
• Literary Studies (Queer Studies)
• Literary Studies (Science Fiction)
• Literary Studies (Travel Literature)
• Literary Studies (War Literature)
• Literary Studies (Women's Writing)
• Literary Theory and Cultural Studies
• Mythology and Folklore
• Shakespeare Studies and Criticism
• Browse content in Media Studies
• Browse content in Music
• Applied Music
• Dance and Music
• Ethics in Music
• Ethnomusicology
• Gender and Sexuality in Music
• Medicine and Music
• Music Cultures
• Music and Media
• Music and Culture
• Music and Religion
• Music Education and Pedagogy
• Music Theory and Analysis
• Musical Scores, Lyrics, and Libretti
• Musical Structures, Styles, and Techniques
• Musicology and Music History
• Performance Practice and Studies
• Race and Ethnicity in Music
• Sound Studies
• Browse content in Performing Arts
• Browse content in Philosophy
• Aesthetics and Philosophy of Art
• Epistemology
• Feminist Philosophy
• History of Western Philosophy
• Metaphysics
• Moral Philosophy
• Non-Western Philosophy
• Philosophy of Language
• Philosophy of Mind
• Philosophy of Perception
• Philosophy of Action
• Philosophy of Law
• Philosophy of Religion
• Philosophy of Science
• Philosophy of Mathematics and Logic
• Practical Ethics
• Social and Political Philosophy
• Browse content in Religion
• Biblical Studies
• Christianity
• East Asian Religions
• History of Religion
• Judaism and Jewish Studies
• Qumran Studies
• Religion and Education
• Religion and Health
• Religion and Politics
• Religion and Science
• Religion and Law
• Religion and Art, Literature, and Music
• Religious Studies
• Browse content in Society and Culture
• Cookery, Food, and Drink
• Cultural Studies
• Customs and Traditions
• Ethical Issues and Debates
• Hobbies, Games, Arts and Crafts
• Lifestyle, Home, and Garden
• Natural world, Country Life, and Pets
• Popular Beliefs and Controversial Knowledge
• Sports and Outdoor Recreation
• Technology and Society
• Travel and Holiday
• Visual Culture
• Browse content in Law
• Arbitration
• Browse content in Company and Commercial Law
• Commercial Law
• Company Law
• Browse content in Comparative Law
• Systems of Law
• Competition Law
• Browse content in Constitutional and Administrative Law
• Government Powers
• Judicial Review
• Local Government Law
• Military and Defence Law
• Parliamentary and Legislative Practice
• Construction Law
• Contract Law
• Browse content in Criminal Law
• Criminal Procedure
• Criminal Evidence Law
• Sentencing and Punishment
• Employment and Labour Law
• Environment and Energy Law
• Browse content in Financial Law
• Banking Law
• Insolvency Law
• History of Law
• Human Rights and Immigration
• Intellectual Property Law
• Browse content in International Law
• Private International Law and Conflict of Laws
• Public International Law
• IT and Communications Law
• Jurisprudence and Philosophy of Law
• Law and Society
• Law and Politics
• Browse content in Legal System and Practice
• Courts and Procedure
• Legal Skills and Practice
• Primary Sources of Law
• Regulation of Legal Profession
• Medical and Healthcare Law
• Browse content in Policing
• Criminal Investigation and Detection
• Police and Security Services
• Police Procedure and Law
• Police Regional Planning
• Browse content in Property Law
• Personal Property Law
• Study and Revision
• Terrorism and National Security Law
• Browse content in Trusts Law
• Wills and Probate or Succession
• Browse content in Medicine and Health
• Browse content in Allied Health Professions
• Arts Therapies
• Clinical Science
• Dietetics and Nutrition
• Occupational Therapy
• Operating Department Practice
• Physiotherapy
• Radiography
• Speech and Language Therapy
• Browse content in Anaesthetics
• General Anaesthesia
• Neuroanaesthesia
• Clinical Neuroscience
• Browse content in Clinical Medicine
• Acute Medicine
• Cardiovascular Medicine
• Clinical Genetics
• Clinical Pharmacology and Therapeutics
• Dermatology
• Endocrinology and Diabetes
• Gastroenterology
• Genito-urinary Medicine
• Geriatric Medicine
• Infectious Diseases
• Medical Toxicology
• Medical Oncology
• Pain Medicine
• Palliative Medicine
• Rehabilitation Medicine
• Respiratory Medicine and Pulmonology
• Rheumatology
• Sleep Medicine
• Sports and Exercise Medicine
• Community Medical Services
• Critical Care
• Emergency Medicine
• Forensic Medicine
• Haematology
• History of Medicine
• Browse content in Medical Skills
• Clinical Skills
• Communication Skills
• Nursing Skills
• Surgical Skills
• Medical Ethics
• Browse content in Medical Dentistry
• Oral and Maxillofacial Surgery
• Paediatric Dentistry
• Restorative Dentistry and Orthodontics
• Surgical Dentistry
• Medical Statistics and Methodology
• Browse content in Neurology
• Clinical Neurophysiology
• Neuropathology
• Nursing Studies
• Browse content in Obstetrics and Gynaecology
• Gynaecology
• Occupational Medicine
• Ophthalmology
• Otolaryngology (ENT)
• Browse content in Paediatrics
• Neonatology
• Browse content in Pathology
• Chemical Pathology
• Clinical Cytogenetics and Molecular Genetics
• Histopathology
• Medical Microbiology and Virology
• Patient Education and Information
• Browse content in Pharmacology
• Psychopharmacology
• Browse content in Popular Health
• Caring for Others
• Complementary and Alternative Medicine
• Self-help and Personal Development
• Browse content in Preclinical Medicine
• Cell Biology
• Molecular Biology and Genetics
• Reproduction, Growth and Development
• Primary Care
• Professional Development in Medicine
• Browse content in Psychiatry
• Addiction Medicine
• Child and Adolescent Psychiatry
• Forensic Psychiatry
• Learning Disabilities
• Old Age Psychiatry
• Psychotherapy
• Browse content in Public Health and Epidemiology
• Epidemiology
• Public Health
• Browse content in Radiology
• Clinical Radiology
• Interventional Radiology
• Nuclear Medicine
• Radiation Oncology
• Reproductive Medicine
• Browse content in Surgery
• Cardiothoracic Surgery
• Gastro-intestinal and Colorectal Surgery
• General Surgery
• Neurosurgery
• Paediatric Surgery
• Peri-operative Care
• Plastic and Reconstructive Surgery
• Surgical Oncology
• Transplant Surgery
• Trauma and Orthopaedic Surgery
• Vascular Surgery
• Browse content in Science and Mathematics
• Browse content in Biological Sciences
• Aquatic Biology
• Biochemistry
• Bioinformatics and Computational Biology
• Developmental Biology
• Ecology and Conservation
• Evolutionary Biology
• Genetics and Genomics
• Microbiology
• Molecular and Cell Biology
• Natural History
• Plant Sciences and Forestry
• Research Methods in Life Sciences
• Structural Biology
• Systems Biology
• Zoology and Animal Sciences
• Browse content in Chemistry
• Analytical Chemistry
• Computational Chemistry
• Crystallography
• Environmental Chemistry
• Industrial Chemistry
• Inorganic Chemistry
• Materials Chemistry
• Medicinal Chemistry
• Mineralogy and Gems
• Organic Chemistry
• Physical Chemistry
• Polymer Chemistry
• Study and Communication Skills in Chemistry
• Theoretical Chemistry
• Browse content in Computer Science
• Artificial Intelligence
• Computer Architecture and Logic Design
• Game Studies
• Human-Computer Interaction
• Mathematical Theory of Computation
• Programming Languages
• Software Engineering
• Systems Analysis and Design
• Virtual Reality
• Browse content in Computing
• Business Applications
• Computer Games
• Computer Security
• Computer Networking and Communications
• Digital Lifestyle
• Graphical and Digital Media Applications
• Operating Systems
• Browse content in Earth Sciences and Geography
• Atmospheric Sciences
• Environmental Geography
• Geology and the Lithosphere
• Maps and Map-making
• Meteorology and Climatology
• Oceanography and Hydrology
• Palaeontology
• Physical Geography and Topography
• Regional Geography
• Soil Science
• Urban Geography
• Browse content in Engineering and Technology
• Agriculture and Farming
• Biological Engineering
• Civil Engineering, Surveying, and Building
• Electronics and Communications Engineering
• Energy Technology
• Engineering (General)
• Environmental Science, Engineering, and Technology
• History of Engineering and Technology
• Mechanical Engineering and Materials
• Technology of Industrial Chemistry
• Transport Technology and Trades
• Browse content in Environmental Science
• Applied Ecology (Environmental Science)
• Conservation of the Environment (Environmental Science)
• Environmental Sustainability
• Environmentalist Thought and Ideology (Environmental Science)
• Management of Land and Natural Resources (Environmental Science)
• Natural Disasters (Environmental Science)
• Nuclear Issues (Environmental Science)
• Pollution and Threats to the Environment (Environmental Science)
• Social Impact of Environmental Issues (Environmental Science)
• History of Science and Technology
• Browse content in Materials Science
• Ceramics and Glasses
• Composite Materials
• Metals, Alloying, and Corrosion
• Nanotechnology
• Browse content in Mathematics
• Applied Mathematics
• Biomathematics and Statistics
• History of Mathematics
• Mathematical Education
• Mathematical Finance
• Mathematical Analysis
• Numerical and Computational Mathematics
• Probability and Statistics
• Pure Mathematics
• Browse content in Neuroscience
• Cognition and Behavioural Neuroscience
• Development of the Nervous System
• Disorders of the Nervous System
• History of Neuroscience
• Invertebrate Neurobiology
• Molecular and Cellular Systems
• Neuroendocrinology and Autonomic Nervous System
• Neuroscientific Techniques
• Sensory and Motor Systems
• Browse content in Physics
• Astronomy and Astrophysics
• Atomic, Molecular, and Optical Physics
• Biological and Medical Physics
• Classical Mechanics
• Computational Physics
• Condensed Matter Physics
• Electromagnetism, Optics, and Acoustics
• History of Physics
• Mathematical and Statistical Physics
• Measurement Science
• Nuclear Physics
• Particles and Fields
• Plasma Physics
• Quantum Physics
• Relativity and Gravitation
• Semiconductor and Mesoscopic Physics
• Browse content in Psychology
• Affective Sciences
• Clinical Psychology
• Cognitive Psychology
• Cognitive Neuroscience
• Criminal and Forensic Psychology
• Developmental Psychology
• Educational Psychology
• Evolutionary Psychology
• Health Psychology
• History and Systems in Psychology
• Music Psychology
• Neuropsychology
• Organizational Psychology
• Psychological Assessment and Testing
• Psychology of Human-Technology Interaction
• Psychology Professional Development and Training
• Research Methods in Psychology
• Social Psychology
• Browse content in Social Sciences
• Browse content in Anthropology
• Anthropology of Religion
• Human Evolution
• Medical Anthropology
• Physical Anthropology
• Regional Anthropology
• Social and Cultural Anthropology
• Theory and Practice of Anthropology
• Browse content in Business and Management
• Business Ethics
• Business History
• Business Strategy
• Business and Technology
• Business and Government
• Business and the Environment
• Comparative Management
• Corporate Governance
• Corporate Social Responsibility
• Entrepreneurship
• Health Management
• Human Resource Management
• Industrial and Employment Relations
• Industry Studies
• Information and Communication Technologies
• International Business
• Knowledge Management
• Management and Management Techniques
• Operations Management
• Organizational Theory and Behaviour
• Pensions and Pension Management
• Public and Nonprofit Management
• Strategic Management
• Supply Chain Management
• Browse content in Criminology and Criminal Justice
• Criminal Justice
• Criminology
• Forms of Crime
• International and Comparative Criminology
• Youth Violence and Juvenile Justice
• Development Studies
• Browse content in Economics
• Agricultural, Environmental, and Natural Resource Economics
• Asian Economics
• Behavioural Finance
• Behavioural Economics and Neuroeconomics
• Econometrics and Mathematical Economics
• Economic History
• Economic Methodology
• Economic Systems
• Economic Development and Growth
• Financial Markets
• Financial Institutions and Services
• General Economics and Teaching
• Health, Education, and Welfare
• History of Economic Thought
• International Economics
• Labour and Demographic Economics
• Law and Economics
• Macroeconomics and Monetary Economics
• Microeconomics
• Public Economics
• Urban, Rural, and Regional Economics
• Welfare Economics
• Browse content in Education
• Adult Education and Continuous Learning
• Care and Counselling of Students
• Early Childhood and Elementary Education
• Educational Equipment and Technology
• Educational Strategies and Policy
• Higher and Further Education
• Organization and Management of Education
• Philosophy and Theory of Education
• Schools Studies
• Secondary Education
• Teaching of a Specific Subject
• Teaching of Specific Groups and Special Educational Needs
• Teaching Skills and Techniques
• Browse content in Environment
• Applied Ecology (Social Science)
• Climate Change
• Conservation of the Environment (Social Science)
• Environmentalist Thought and Ideology (Social Science)
• Natural Disasters (Environment)
• Social Impact of Environmental Issues (Social Science)
• Browse content in Human Geography
• Cultural Geography
• Economic Geography
• Political Geography
• Browse content in Interdisciplinary Studies
• Communication Studies
• Museums, Libraries, and Information Sciences
• Browse content in Politics
• African Politics
• Asian Politics
• Chinese Politics
• Comparative Politics
• Conflict Politics
• Elections and Electoral Studies
• Environmental Politics
• European Union
• Foreign Policy
• Gender and Politics
• Human Rights and Politics
• Indian Politics
• International Relations
• International Organization (Politics)
• International Political Economy
• Irish Politics
• Latin American Politics
• Middle Eastern Politics
• Political Behaviour
• Political Economy
• Political Institutions
• Political Theory
• Political Methodology
• Political Communication
• Political Philosophy
• Political Sociology
• Politics and Law
• Public Policy
• Public Administration
• Quantitative Political Methodology
• Regional Political Studies
• Russian Politics
• Security Studies
• State and Local Government
• UK Politics
• US Politics
• Browse content in Regional and Area Studies
• African Studies
• Asian Studies
• East Asian Studies
• Japanese Studies
• Latin American Studies
• Middle Eastern Studies
• Native American Studies
• Scottish Studies
• Browse content in Research and Information
• Research Methods
• Browse content in Social Work
• Addictions and Substance Misuse
• Adoption and Fostering
• Care of the Elderly
• Child and Adolescent Social Work
• Couple and Family Social Work
• Developmental and Physical Disabilities Social Work
• Direct Practice and Clinical Social Work
• Emergency Services
• Human Behaviour and the Social Environment
• International and Global Issues in Social Work
• Mental and Behavioural Health
• Social Justice and Human Rights
• Social Policy and Advocacy
• Social Work and Crime and Justice
• Social Work Macro Practice
• Social Work Practice Settings
• Social Work Research and Evidence-based Practice
• Welfare and Benefit Systems
• Browse content in Sociology
• Childhood Studies
• Community Development
• Comparative and Historical Sociology
• Economic Sociology
• Gender and Sexuality
• Gerontology and Ageing
• Health, Illness, and Medicine
• Marriage and the Family
• Migration Studies
• Occupations, Professions, and Work
• Organizations
• Population and Demography
• Race and Ethnicity
• Social Theory
• Social Movements and Social Change
• Social Research and Statistics
• Social Stratification, Inequality, and Mobility
• Sociology of Religion
• Sociology of Education
• Sport and Leisure
• Urban and Rural Studies
• Browse content in Warfare and Defence
• Defence Strategy, Planning, and Research
• Land Forces and Warfare
• Military Administration
• Military Life and Institutions
• Naval Forces and Warfare
• Other Warfare and Defence Issues
• Peace Studies and Conflict Resolution
• Weapons and Equipment

• < Previous chapter
• Next chapter >

46 Comparative Criminal Law

Markus D. Dubber is Professor of Law & Criminology and Director of the Centre for Ethics at the University of Toronto.

Thanks to the Alexander-von-Humboldt Foundation, the Royal Society of Canada, the Social Sciences and Humanities Research Council of Canada, and Dean Nils Olsen (SUNY Buffalo), for financial support, and to Klaus Günther, Tatjana Hörnle, and Bernd Schünemann for their kind hospitality.

• Published: 09 May 2019
• Cite Icon Cite
• Permissions Icon Permissions

Criminal law occupies an odd position in the field of comparative jurisprudence. Historically speaking, one can occasionally read that comparative law as a serious academic discipline began as comparative criminal law, either in Germany or in France, or both. And yet, introductions to comparative law tend to assume that comparative law means comparative civil law first and foremost. The first section of this chapter describes criminal law’s parochialism. The second section discusses the histories and functions of comparative criminal law. The third section discusses selected topics in comparative law, such as punishment theory, victims, jurisdiction, the principle of legality, the an analysis of criminal liability, and general principles of criminal liability. The last section discusses comparative criminal law in context, arguing that comparative criminal law is best seen as a mode of critical analysis of law, that is, as one way to gain critical distance from a given legal system by placing it within a larger context.

Criminal Law’s Parochialism   1277

Histories and Functions of Comparative Criminal Law   1280

P. J. A. Feuerbach: A Good Place to Start   1280

Two Modes of Comparative Criminal Law   1284

The View fromAbove   1284

MuddlingThrough   1286

Domesticating Comparative Criminal Law   1288

Foreign Law as Comparative Criminal Law   1289

Toward a General Theory of Criminal Law   1292

International Criminal Law   1293

Selected Topics in Comparative Criminal Law   1294

General Part   1295

PunishmentTheory   1295

Victims   1296

Jurisdiction   1297

Analysis of CriminalLiability   1298

General Principles of CriminalLiability   1300

Special Part   1302

Comparative Criminal Law in Context   1304

I. Criminal Law’s Parochialism

Criminal law occupies an odd position in the field of comparative jurisprudence. Historically speaking, one can occasionally read that comparative law as a serious academic discipline began as comparative criminal law, either in Germany or in France, or both. And yet, few introductions to comparative criminal law fail to point out that comparative law means, and has meant for quite some time, comparative civil law first and foremost. Textbooks on comparative law feel no need to address, or even acknowledge the existence of, comparative studies in criminal law. The massive, seventeen-volume, International Encyclopedia of Comparative Law does not cover criminal law, devoting itself instead to virtually every aspect and variety of ‘civil, commercial and economic law’. 1

It’s easy to dismiss academics’ complaints about the relative, and undeserved, neglect of their subject—a condition they then set out to rectify—as an all-too familiar scholarly gripe. Still there is something to the fact that comparative criminal law has attracted little attention, at least as compared to other types of law. The persistent peculiar parochialism of criminal law is deeply bound up with the history of criminal law itself. It is worth exploring not only for its own sake, but also in the hope of framing the challenges that comparative analysis of criminal law continues to face.

Of all branches of law, criminal law historically has been the one most closely associated with sovereignty. To appreciate this point, it is helpful to think of criminal law as having emerged from the householder’s virtually unlimited discretion to discipline members of his household. 2 The Athenian oikonomos or the Roman paterfamilias enjoyed the unquestioned power to employ, against insiders and outsiders alike, whatever disciplinary sanctions he considered necessary to discharge his obligation to look after the welfare of his household (oikos or familia). The medieval householder wielded the same disciplinary authority, to correct and to punish, over his household—including his wife, offspring, servants, and animals—for the sake of keeping the peace (mund). 3 The consolidation and centralization of power, and the eventual creation of a state, consisted of the expansion of this model of household governance from the family to the realm. Criminal law served the function of protecting the ‘king’s peace’—and still does in English law—by preventing and punishing ‘breaches’ of that peace, which were considered offences against the (macro) householder, the king, himself. 4 Eventually, in the United States, the concept of the king’s peace was replaced by that of the ‘public peace’, as sovereignty was transferred from the king to ‘the people’. In the United States, the intimate connection between criminal law and sovereignty nonetheless remained in place, even after the fiction of the self-governing and sovereign people had replaced the person, and fiction, of the king as sovereign.

This essentially patriarchal model of criminal law as household discipline was not challenged until the Enlightenment, when the idea of personal autonomy emerged and cast doubt on any account of state power that distinguished radically between governor and governed and denied the latter a say in (their) government altogether. As persons endowed with the capacity to govern themselves, royal subjects were transformed, at least in theory, into citizens, leading eventually to the establishment of democracies as the form of government most consistent with the idea of personal autonomy.

The critique of traditional criminal law formed an important part of the critical project of Enlightenment political theory. Central Enlightenment figures like Voltaire (in France), Kant and P. J. A. Feuerbach (in Germany), Bentham (in England), and—most influentially by far—Beccaria (in Italy) recognized that the threat and infliction of punitive pain on the newly discovered autonomous citizen posed the most difficult, and the most important, challenge to Enlightenment ideals. 5

It makes sense, then, that the Enlightenment would trigger a systematic interest in the comparative analysis of criminal law and, in fact, an interest in comparative criminal law first and foremost, before an interest in other forms of comparative analysis. All comparative law carries critical, even subversive, potential by exposing the relativity of apparently ironclad rules. 6 The mere existence of alternative rules suggests that alternatives are possible; and if alternatives are possible, it is only a small step to the suggestion that they might be preferable. If comparative analysis is used in conjunction with, or—in Feuerbach’s case—as the positive foundation of, natural law arguments, the results of comparative research naturally lead to strong normative claims that the existing arrangements be rendered consistent with the demands of natural justice.

In a pre-Enlightenment system of criminal law, the very idea of comparative law is preposterous. A wise and curious sovereign might wish to consult the experiences of other sovereigns as they exercise quasi-patriarchal power over their households, but accounts of other practices elsewhere would have no critical bite—the exercise of disciplinary power over the state household was beyond critique. Criminal law—or rather penal discipline, in so far as, after the Enlightenment, the very concept of law implies the notion of an autonomous legal subject—is the least constrained power of the sovereign since it is the power closest to the very essence of sovereignty. A sovereign who cannot punish as he sees fit is no sovereign.

The significance of Enlightenment critique for the appearance of comparative criminal law as a discipline also helps to account for the fact that comparative criminal law not only began but also has struck considerably deeper roots in continental Europe than in Anglo-American jurisprudence. In the United States, criminal law continues explicitly to rest on a quasi-patriarchal foundation. Doctrinally speaking, the criminal law is the most intrusive manifestation of the state’s ‘police power’, which, since Blackstone, has been defined as the power of ‘the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners’. 7

In the United States, criminal law to this day is conceived of as protecting the state’s sovereignty against ‘offences’. 8 The power of the state to reassert its sovereignty against an offence is virtually unlimited within its geographical limits. Territoriality remains the dominant principle of criminal jurisdiction in the United States; any state is free to mete out penal discipline as it sees fit provided it does not interfere with another state’s discretion to do likewise within its territory. By contrast, continental criminal law has long recognized active and passive personality, based on the offender’s and the victim’s citizenship, respectively, as important bases for criminal jurisdiction, along with—more controversially—universal jurisdiction over certain international crimes (e.g. genocide) regardless of who committed them where against whom. 9 Again unlike in continental criminal law, 10 choice of law questions cannot arise in American criminal cases, since no sovereign could assert another’s authority; the very act of indirect reassertion would merely reaffirm the other state’s lack of authority. Similarly, double jeopardy protections stop at the state line: a single act that violates two states’ criminal norms gives offence to two sovereigns and, in that sense, constitutes not one offence but two, so that the constitutional prohibition of twice putting a defendant in jeopardy of life or limb for ‘the same offence’ does not come into play. 11 In the pre-Enlightened American view, sovereignty requires nothing less than leaving it to the discretion of each sovereign to decide whether, and how, to respond punitively to offences against its authority.

Even in countries where the Enlightenment’s fundamental assault on the traditional quasi-patriarchal regime of state punishment was felt more strongly than in the United States, comparative criminal law emerged only sporadically and without ever achieving anything close to the breadth and depth of work in private law. We now turn to an account of that slow and timid emergence, noting along the way the various functions comparative criminal law was meant to fulfil according to its proponents and practitioners over the past two centuries.

II. Histories and Functions of Comparative Criminal Law

The story of comparative criminal law is one of great promise, even excitement, followed by disappointing practice, even drudgery. Following a theoretically ambitious start at the turn of the nineteenth century, when its aims were laid out with great verve and high hopes, comparative criminal law flattened out quickly. Already by the second generation, it had been turned over to professional comparatists who lacked the broad vision that animated its creation and were largely content to accumulate foreign law materials, often in the service of some reform project or other.

At the outset of our historical inquiry, it must be noted that the study of comparative criminal law can be oddly ahistorical. Quite often criminal comparatists are content to note the similarities and differences between doctrinal rules in two legal systems, without spending much time on their respective historical roots. 12 This is not only regrettable, but also surprising since comparative law and legal history are so obviously related. History, after all, can be seen as one form of comparison, across time. As the contemporary criminal comparatist might try to detail—and, if she feels ambitious, perhaps even to explain 13 —the differences in the criminal laws of various states, countries, regions, cities, and so on across space, so the historian would set out to capture, and hopefully to account for, the intertemporal differences in various legal rules, institutions, or practices. (Of course the practitioner of comparative legal history faces the formidable task of comparing across two dimensions. 14 ) It is often said that comparative law highlights the relativity of legal rules; but intertemporal comparison illustrates the relativity of current law no less clearly than does interspatial comparison.

And yet, while even exhortations to expand the scope of comparative criminal law beyond abstract legal doctrine emphasize the need to consider criminal law in its ‘sociocultural’ and ‘socioeconomic context’, as well as its ‘political setting’, they rarely mention the importance of historical context. 15 Clearly, however, comparative research in criminal law without history makes no more sense than comparative criminal law without sociology, and notably criminology, economics, politics, or culture.

1. P. J. A. Feuerbach: A Good Place to Start

As far as they go, comments on the history of comparative criminal law tend to locate its origins in Germany in the early nineteenth century—though some authors, particularly French comparatists, also point to roughly contemporaneous developments in France. 16 More specifically, P. J. A. Feuerbach, the influential German jurist, codifier, author, and judge, is often identified as the father of modern comparative criminal law and, in fact, of modern comparative law in general. 17 Feuerbach’s 1800 essay on Islamic criminal law 18 in particular tends to be mentioned as a formative document. 19 This early attempt at legal anthropology—written at a time of frequent anthropologizing and intense interest in the ‘exotic’ world of Muslim culture—is remembered today not for its forgettable observations about the ‘criminal jurisprudence of the Koran’, but for programmatic pronouncements such as the following:

Without knowledge of the real and the existing, without comparison of different legislations, without knowledge of their relation to the various conditions of peoples according to time, climate, and constitution, a priori nonsense is inevitable. 20

Feuerbach’s insistence on the comparative method in criminal law thus must be seen as part of his general rejection of traditional natural law, which attempted to deduce substantive principles of right, or justice, from reason alone. Feuerbach instead developed a formal theory of natural law, insisting that universal principles of law be derived from a thorough appreciation of the legal norms of particular societies, which was impossible without the required careful study of each society’s ‘constitution’. Note that Feuerbach’s conception of comparative law incorporates the study of legal history, among other things.

Still, Feuerbach’s critique of natural law should not be misunderstood as a rejection of natural law, which at the time was thought to be synonymous with legal theory. 21 Feuerbach did not doubt the possibility of deriving universal principles of law; he simply thought traditional natural law had been going about that derivation in the wrong, purely rationalistic, way.

For decades Feuerbach laboured on a large comparative project, which he alternately described as a ‘world history of legislation’, a ‘universal legal history’, or simply a ‘universal jurisprudence’. To that end, he collected materials not only from Europe, but also from East Asia, Southeast Asia, the Middle East, and the United States.

Feuerbach never managed to complete his grand comparative opus. Still, he better captured the theoretical ambitions of comparative law than anyone since, and placed them within the context of a larger human and scientific endeavour, the discovery of universals:

Why does the legal scholar not yet have a comparative jurisprudence? … Just as the comparison of various tongues produces the philosophy of language, or linguistic science proper, so does a comparison of laws and legal customs of the most varied nations, both those most nearly related to us and those farther removed, create universal legal science, ie legal science without qualification, which alone can infuse real and vigorous life into the specific legal science of any particular country. 22

Here Feuerbach makes explicit the connection between comparative jurisprudence and another, far better known, comparative enterprise: comparative linguistics associated with Jacob Grimm and Wilhelm von Humboldt and, more generally, comparative language studies, which also included comparative dictionary projects as well as attempts to work out a ‘philosophical universal linguistics’. 23 Humboldt went on to posit that a universal linguistic competence, or ‘sense of language’ (or grammar), could be distilled from comparative linguistic studies—an idea later revived by Noam Chomsky. 24 Although Feuerbach is often credited with introducing the concept of a ‘sense of law’ (or justice), this juristic competence turned out to be distinctly non-universal. 25 Feuerbach invoked the sense of justice to make a very parochial point: he argued against importing the French jury, which he praised as a theoretical matter, into German criminal procedure on the ground that early nineteenth-century Germans lacked the sense of justice required for the jury to protect, rather than to threaten, individual rights. 26

If Feuerbach’s project sounds very much like Montesquieu’s Spirit of the Laws (1748), not only in the reference to climate, that’s no accident. Feuerbach was a great admirer of Montesquieu’s; he occasionally referred to his overarching comparative project as his ‘German esprit des lois’. Unlike Feuerbach, however, Montesquieu showed virtually no interest in comparative criminal law, or in other matters of criminal law as such—beyond his general but influential call for punishment ‘in the spirit of’ the crime. 27

A little later, Cesare Beccaria, whose essay Of Crimes and Punishments (1764) kicked off the Enlightenment attack on established penal practices—and notably of the use, or at least overuse, of capital punishment—in earnest, likewise took an acomparative approach to the subject of criminal law, or rather of state punishment. ‘Follow[ing] the steps’ of the ‘immortal Montesquieu’ who ‘has but slightly touched on this subject’, Beccaria’s famous essay analyses human society in general and critiques laws throughout Europe and throughout history, rather than drawing detailed contrasts and comparisons among individual systems of criminal law. Beccaria here ‘pleads the cause of humanity’, applying ‘philosophical truths’ that are ‘eternally the same’ to state punishment, chief among them of course the universal principle that a good law is one that pursues ‘the greatest happiness of the greatest number’.

Bentham took from Beccaria not only his greatest happiness principle, but also his ahistorical and acomparative approach. There is no trace of comparative sensibility in Bentham’s systematic, and often tedious, application of Beccaria’s principle to every corner of law, including all aspects of penal law, from substance, to procedure, to modes of punishment execution. Bentham was indiscriminately abstract: he attacked Blackstone’s common law and the American Revolution’s natural law from the same high perch of rigorous utilitarianism. Bentham’s inability, or unwillingness, to consider comparative nuance or context was particularly ironic, and ultimately self-defeating, in light of his repeated offers to draft criminal codes for governments throughout the world, including the federal and state governments in the United States, all of which were rejected. Bentham’s interest in what he termed ‘international law’ is not to the contrary; in his view, international law concerned itself not with a community of nations marked by apparently irreconcilable historical, cultural, and economic—yes, even climatic—differences, but with the drafting of a ‘universal international code’.

Nonetheless, it would be a mistake to think of Bentham’s project as an attempt to export a superior legal system to other less fortunate, or less enlightened, countries, a common occurrence in the history of comparative law, and comparative criminal law in particular. Bentham thought the English common law required radical utilitarian reform just as much as, if not more so than, the legal systems of other countries. His project was universalistic, not chauvinistic, though acomparative all the same.

In an important sense, in fact, the common law—the frequent object of Bentham’s withering ridicule—can be viewed as an essentially, and increasingly, comparative project. In Bentham’s (and Blackstone’s) day, the only comparative dimension of the common law was intertemporal. In Blackstone’s Commentaries on the Laws of England (1764–9), which Bentham so mercilessly mocked, non-English criminal law appears nowhere. Nor does Blackstone, it must be said, even follow his common-law predecessors, most importantly Coke, in carefully tracing the development of criminal law doctrine over time. References to foreign law of any kind in Blackstone’s discussion of criminal law are limited to vague references to alien, and essentially non-English and therefore presumptively threatening, customs, such as polygamy. The foreigners themselves occasionally pop up in the form of ‘outlandish persons calling themselves Egyptians, or gypsies’, association with whom is punished by death, or of ‘Jews and other infidels and heretics’ not entitled to benefit of clergy.

At the same time, it’s worth noting that, as a matter of procedure, English law specifically provided for the disposition of foreign criminal (and civil) defendants. From 1190 until 1870, foreigners—notably Jews and foreign merchants—were tried before a mixed jury (de medietate linguae). 28 This procedural device, however, hardly turned trials of foreigners into an opportunity for the exploration of comparative criminal law. The mixed jury applied the same substantive common law (or law merchant, as the case may have been) as the unmixed jury deciding the faith of a native Englishman. Still, even if the mixed jury did not introduce choice of law questions into English criminal trials, it at least recognized the existence, and interests, of non-English defendants, who for ‘oeconomic’ reasons of household governance—as opposed to considerations of their individual rights—were put under the king’s protection. 29

2. Two Modes of Comparative Criminal Law

Common criminal law analysis became more explicitly comparative when it left the English motherland and entered the colonies. Here, we might distinguish two types of interaction between English and colonial (or Commonwealth) law: (1) the consideration of foreign law by English courts, notably the Privy Council, and (2) the consideration of English law by colonial (or postcolonial) courts. In both cases, courts turn to comparative analysis, be it between various non-English legal systems or between non-English and English law.

(a) The View from Above

The first—hierarchical or unidirectional—mode of comparative analysis operates within an imperialist framework that guides English courts’ application of English law to resolve disputes and to help develop other, lesser, systems of law. This framework should not be obscured by frequent references to the application and development of a uniform common law within the British Empire or the Commonwealth, which by definition recognizes no distinction between English and ‘foreign’ law. 30

In this, imperialist, mode of comparative criminal law, the comparison proceeds from the assumption that the domestic system is superior to the foreign one. Arguably, imperialist comparative law does not qualify as comparative law in the first place, at least in so far as, in the formulation of Hans-Heinrich Jescheck, ‘the basic intellectual approach toward all comparative work consists of the willingness to learn’. 31 Imperialist comparative law seeks, at best, to teach and, at worst, to oppress, but never to learn.

The most obvious instance of imperialist comparative law in the area of criminal law is the exportation of criminal codes to colonies, a common practice among colonial powers in the nineteenth century. 32 The most prominent example is Macaulay’s Indian Penal Code (1837). Macaulay looked to Indian customs—which, as is standard colonial practice, were denied the status of laws, thus making comparative law impossible by definition—only in so far as they indicated the need for extraordinary legal measures—as, for instance, to combat Indians’ presumed predilection for perjury—or might help render the code more effective by placing its commands within a familiar local context—as evidenced by his innovative use of illustrations of code sections. 33

There is a contemporary—non-colonial—version of this imperialist approach to comparative criminal law. It also operates from a position of superiority, but without the aid of open political might and, ordinarily, with greater subtlety. The sense of superiority of non-colonial exporter nations in comparative criminal law comes in different forms. German scholars of comparative criminal law, for instance, may be convinced of the superior, and even unmatched, complexity of their domestic law’s doctrine of substantive criminal law, which is taken as an indication of the superiority of German substantive criminal law as a matter of scientific progress. 34 Note, for instance, that Jescheck, in the same programmatic essay cited earlier, remarks that German substantive criminal law has little use for comparative research as a source of alternative approaches because it ‘has largely exhausted the field of doctrinal possibilities’. 35 In fact, in his popular criminal law textbook, Jescheck argued for the need to develop a complex doctrinal system of substantive criminal law in part by attributing the—in his view—wrong result in a landmark nineteenth-century English criminal case to English criminal law’s lack of doctrinal sophistication. 36 Here comparative criminal law is used not as an opportunity for critical reflection, but as an opportunity for self-affirmation. 37

Germany has been a major exporter of criminal law doctrine and theory over the past century: the sun rarely sets on German criminal law theory. Leading textbooks on German criminal law—including Jescheck’s—have been translated into several languages, including Spanish, Portuguese, Chinese, Japanese, and Korean. Scores of budding scholars have studied with German criminal law professors, often with generous German foundation support, returning to their home countries to spread German criminal law doctrine. 38 German criminal law theory has been particularly influential in Spain, Latin America, Japan, South Korea, and Taiwan, as well as in several Eastern and Southern European countries (e.g. Greece, Poland, Turkey).

In criminal procedure, Germany has been less influential, though Turkey adopted the German criminal procedure code as an effort at Westernization, along with the Italian criminal code of 1899. In the area of comparative criminal procedure, the United States is far more likely to suffer from a superiority complex. 39 US criminal procedure, it is convenient to forget, was entirely forgettable both domestically and internationally until the so-called Warren Court Revolution in criminal procedure, which in the 1950s and 1960s turned the subject into a subdiscipline of constitutional law. Claims to the superiority of US criminal procedure law do not invoke scientific progress, but assert a political, even moral, superiority. Perhaps for that reason they are advanced most vigorously not by scholars, but by government and foundation representatives who are dispatched to criminal law reform projects throughout the world to do battle with champions of the inquisitorial model. 40

Scientific or moral chauvinism has been less common in the comparative law of punishment execution and sanctions. There a less ideologically charged exchange of ideas and practices has occurred since the late eighteenth century, when European reformers first took an interest in American penitentiaries; Beaumont and Tocqueville were only the most famous among many foreign visitors and inquirers at the time. 41 Today, the two illustrious Frenchmen would have no reason to study American penal institutions, which have long since abandoned the correctional project, unless they were charged with learning about private or maximum security prisons in the ‘prison-industrial complex’.

It is no accident that when Jescheck set out to illustrate the successes of comparative criminal law as an engine of domestic criminal law reform in German, every example was drawn from the law of punishment execution and sanctions: (1) ‘uniform type of imprisonment’ (citing Italian and Austrian practice in support of abandoning the traditional distinction among Zuchthaus (penal servitude), Gefängnis (imprisonment), and Haft (detention) in German criminal law), (2) ‘the day-fine system’ (drawing on a Scandinavian model that tailors the amount of the daily fine to the economic resources of the defendant and the number of daily fines to the seriousness of her offence), and (3) ‘warning combined with suspended fine’ (looking to English, French, Italian, and East German (!) law—but apparently not to US law—to develop a new type of alternative sanction). 42

(b) Muddling Through

A second—egalitarian or multidirectional—mode of comparative criminal law in the common law world emerged in the United States after the American Revolution, although it tends not to be regarded as an exercise in comparative law at all. Every federal system composed of independent bodies of state law offers opportunities for comparative analysis of law. 43 American criminal law, for the first hundred years or so of its existence, relied almost exclusively on English precedent. Eventually, however, as each state—and more recently federal law as well—developed its own jurisprudence on a wide range of issues in criminal law, an American court could consider a wide palette of approaches to a given issue before it. Decisions from other states, and to a lesser extent from federal courts, could then be considered alongside English decisions. English law thus became integrated into a comparative analysis, rather than functioning as the model against which (lesser) colonial efforts must be measured.

This comparative criminal law-making was still thought of as a form of common lawmaking, with the various, and increasingly differing, rules fitting together into an increasingly incoherent whole. As time went on, and differences continued to emerge, it became increasingly difficult, however, to maintain the fiction of a common law of crimes. The Model Penal Code of the American Law Institute, completed in 1962, attempted to systematize the internally inconsistent body of American criminal law that had accumulated over the years. 44 ‘The common law’ is ordinarily thought of as the Model Penal Code’s raw material, and even as its doctrinal alternative in jurisdictions that did not follow the Code. The Code drafters, however, in fact engaged in a comprehensive comparative analysis of the general principles of criminal law in the various American state and federal jurisdictions, drawing on statutes as well as on case law. Based on this ambitious exercise in comparative criminal law, the drafters proposed rules that retained certain features of the criminal laws in American jurisdictions while rejecting others, in an effort to render American criminal law as a whole more consistent both internally and in light of what they regarded as the basic functions of a modern system of criminal law (legality, deterrence, treatmentism).

In the wake of the widespread reform and codification of criminal law in jurisdictions throughout the United States—with notable exceptions, such as California and federal law—American criminal law today is essentially a creature of domestic comparative criminal law. 45 There is no American ‘common law’ of crime; there are only separately codified independent systems of criminal law that are developed in occasional reference to other American systems. 46 Still, the myth of a uniform common law of crimes—which is often, in a particularly anachronistic twist, treated as though it included even English criminal law—continues to shape American thinking about, and teaching of, criminal law. If its internally comparative dimension were recognized more fully, the study of American criminal law, as well as the jurisprudence itself, could become conscious of, and eventually refine, its method. Even without a full-blown comparative investigation, the comparatist’s sceptical eye for apparent similarities and differences in doctrinal questions and answers, her sensitivity to procedural, institutional, theoretical, and even historical context, would serve American criminal law well, as its practitioners and theoreticians draw on statutes and court opinions from throughout the land to resolve a given issue. 47

3. Domesticating Comparative Criminal Law

The idea of internal comparative criminal law might be further developed to extend beyond the boundaries of criminal law itself. As a matter of theory, as well as of doctrine, the study of criminal law requires a comparative dimension that places its subject within the broader context of law, and, ultimately, of state action generally speaking. The discipline of criminal law rumbles along in almost complete ignorance of other areas. American criminal law has yet to develop a satisfactory account of its relation to the law of torts, contracts, or property, or for that matter, to the law of taxation or bankruptcy. As a result, American criminal law has the least to say about the very issues that matter the most in criminal law-making—namely the proper role of criminal law in public policy, and the proper scope and definition of offences within that role.

As a species of law, criminal law must be distinguished from other modes of state governance, most importantly administrative regulation. 48 In addition, criminal law must be differentiated from other legal modes of governance, including both so-called public and private law. This differentiation requires a comparative analysis of the various doctrinal points of contact between criminal law and other areas, including—if we use tort law as an example—act, commission through omission, harm, voluntariness, intention, recklessness, negligence, strict liability, causation, mistake, reasonableness, justification, public and private necessity, self-defence, use of force in law enforcement, consent, excuse, insanity, infancy, attempt, as well as—in the special part—protected interests and the host of torts paralleling criminal offences, such as assault, battery, false imprisonment, trespass on land, and trespass to chattels.

The Model Penal Code drafters did not engage in this sort of interdisciplinary domestic comparative law analysis. As a result, some critical features of the Model Code remain troublingly indeterminate. The drafters failed to account for their adoption of differing definitions of similar, if not identical, concepts in other areas of law—for example, rejecting an affirmative definition of the fundamental concept of ‘act’ along the lines of the American Law Institute’s own Restatement of Torts. What’s more, the relationship between criminal law and other areas remains unarticulated even where the Model Code makes specific reference to non-criminal law—for example, in justification defences that turn on the general, criminal and civil, ‘lawfulness’ of the conduct in question.

The drafters of the Model Penal Code were not particularly interested in transnational, as opposed to intranational, comparative criminal law either. Eager to devise a piece of model legislation with a chance of adoption in American jurisdictions throughout the land, they instead focused on domestic law alone. The only foreign criminal law system that received some attention was English law (presumably it was—still—not quite considered ‘foreign’). Even English law, however, appeared not so much in the form of primary materials, that is, cases and to a lesser extent statutes, but through the work of a contemporary commentator, Glanville Williams, who is widely regarded as a key figure in the making of modern English criminal law scholarship. It is no accident that the publication of Williams’s ground-breaking work, Criminal Law: The General Part , coincided with the drafting of the Model Code between 1952 and 1962. The Code drafters cited German criminal law only very rarely, even though the Code’s basic analytic framework resembles that developed by German criminal law scholars at the beginning of the twentieth century (see Section III.1.(d) ). 49

It is worth nothing at this point that the Model Penal Code, in its primarily internal comparative approach, resembled Feuerbach’s Textbook of the Common Penal Law in Force in Germany , which dominated German criminal law teaching during the first half of the nineteenth century. 50 As the textbook’s title makes clear, Feuerbach faced a challenge not unlike that encountered by the Model Code drafters. What’s more, he viewed his task in similar terms—as revision, reform, and rationalization of an existing, often hopelessly self-contradictory and arbitrary, ‘common’ criminal law that had evolved over centuries. Like the Model Code drafters, Feuerbach also realized that this formidable critical project presupposed a different, but no less daunting, analytical one: a careful comparative study of the rules of law as they existed at the time.

Note, however, that, in Feuerbach’s telling, the sources of criminal law included ‘the philosophy of criminal law, insofar as it is not limited in its application by positive statutory provisions’. Feuerbach was criticized—not without justification—for paying too much attention to the philosophy of criminal law, and too little to positive law, common and otherwise. Recall, however, that under his view, philosophical principles themselves should derive from a careful study of positive law. The Model Penal Code drafters, by contrast, studiously avoided extended discussions of criminal theory, preferring instead to cast their Code as animated by a spirit of ‘principled pragmatism’.

4. Foreign Law as Comparative Criminal Law

The more telling contrast, however, pits Feuerbach and the Model Penal Code, on the one hand, against what has come to be regarded as traditional comparative law, on the other. Feuerbach’s work—both in his textbook and his Bavarian Criminal Code of 1813, which was based closely on the views laid out in the textbook and other, more theoretical, writings— and the Model Penal Code exemplify the use of internal comparative analysis of legal rules in the service of criminal law reform. Comparative analysis was of integral, and in fact foundational, importance to the law reform projects undertaken by Feuerbach and the Model Penal Code drafters. The materials subjected to comparative analysis were the very subject-matter of the reform effort itself.

Contrast this integral and internal form of comparative analysis with the use of comparative law in other criminal law reform efforts, which self-consciously turn to studies of foreign law to aid domestic projects. The prime example of this style of reform-oriented comparative criminal law is the publication of a sixteen-volume ‘comparative depiction of German and foreign criminal law’, published under the auspices of the German Justice Ministry 1905–9 in connection with proposals for reform of the German criminal code. 51 This collection is a treasure trove of information about non-German criminal systems as of the early twentieth century. It is, however, at bottom a work of reportage, a series of essays on how the French do it, how the English do it, and so on. 52 It is fascinating as a study of ‘foreign’ criminal law, from a German perspective. It tells us a great deal about non-German systems of criminal law and, at least as interesting, about German criminal law thought at a time of great scholarly creativity, when the basic building blocks of German criminal law theory were being assembled.

It is not, however, a work of comparative law. The basic structure of German criminal law was developed without reference to the extensive study of foreign models. 53 There is also no indication that this enormous project influenced the effort to reform the German criminal code, which failed at any rate. The code was not fundamentally revised until the 1960s. At that time, another foreign criminal law study was commissioned by the German Justice Ministry, with far less impressive results; it likewise had no noticeable effect on the reform of the code.

The accumulation of materials on, references to, and brief—or not so brief—summaries of foreign criminal law has a long tradition in comparative criminal law. Already Feuerbach’s textbook bears its early traces, in the run-on notes of its later editions. These editions were the work of Carl Joseph Anton Mittermaier, who spent his early years collecting and translating foreign criminal codes for Feuerbach. Mittermaier went on to considerable fame, becoming the internationally best-known German jurisprude of his time. If Feuerbach established the modern discipline of comparative criminal law, Mittermaier was the first professional criminal law comparatist. Unlike Feuerbach, Mittermaier had no theoretical ambitions for his work in general, or for comparative criminal law in particular. He spent his long career amassing accounts of foreign criminal law, ultimately with an eye toward reform, notably of the German criminal process in light of the English and French systems and the abolition, or at least limitation, of capital punishment.

Mittermaier’s main contribution to Feuerbach’s textbook, apart from critiquing Feuerbach’s preoccupation with matters philosophical and adding countless footnotes, consisted of inserting long lists of snapshots of foreign criminal law. In Mittermaier’s hands, then, Feuerbach’s textbook came to contain an early miniature version of the still more expansive foreign criminal law project of 1905–9. The reader could find out quickly—though not necessarily reliably—how the French, the English, and so on dealt with a particular question, without any attempt, however, to integrate these descriptions into the textbook’s doctrinal analysis of German criminal law.

One finds the same use of foreign criminal law in Jescheck’s textbook on German criminal law more than a century later. Here, too, discussions of German criminal law were often followed—in smaller print, indicating their relative insignificance—by capsules of foreign law. These one-sentence summaries, which generally consisted of citations to criminal code sections from one country after another, were as a rule not incorporated into the discussion of German criminal law, nor were they interconnected across topics, preventing the reader from gleaning a parallel view of non-German systems across the book. 54 They serve no analytic purpose, though they may help to satisfy the curiosity of anyone looking for a thumbnail sketch of where some non-German criminal law systems address a given issue in their criminal code, assuming they have one. In the end, they were at best impressive displays of cosmopolitan erudition.

Not surprisingly, integrating a comparative approach into one’s exploration of issues in criminal law becomes more difficult when the points of comparison are drawn from a foreign legal system, rather than from another constituent jurisdiction of the same legal system. Making US criminal law relevant to a treatment of German criminal law is more challenging than bringing California’s criminal law to bear on New York’s with an eye toward rationalizing American criminal law. Getting foreign criminal law right is just as difficult as any other inquiry into foreign law. Different systems draw on different sources of criminal law, ranked in different orders of significance, and functioning in different ways.

The comparatist interested in US criminal law, for instance, would do well to consult not only the Model Penal Code, but also the relevant jurisdictions’ criminal codes (should they exist), non-criminal codes (if any), unconsolidated criminal and non-criminal statutes, sentencing guidelines, code commentaries (which may not exist and, if they do, may differ dramatically in form, content, and ambition), secondary literature, treatises, and—of course—the jurisprudence of the relevant courts, in addition to that of the US Supreme Court. One must learn not only how to find the relevant sources, but also how to read them. And once the comparatist has assembled an image of a foreign legal rule, she must be prepared to adjust that image in light of current developments. It is no accident that examples of external comparative criminal law that attempt to engage a foreign system, rather than merely citing a necessarily oversimplified nutshell to add foreign flavour to one’s doctrinal explorations, are quite rare. One such example from the German literature is Thomas Weigend’s nuanced consideration of the Model Penal Code’s mens rea scheme, as adopted and interpreted in New York criminal law, in the context of a searching exploration of the doctrine of intention in German jurisprudence. 55

Retaining for the moment our focus on the comparative analysis of German and US criminal law, it should be noted that neither shows much interest in the other. German criminal law finds it difficult to take US substantive criminal law seriously and, for that reason, sees no particular need to go beyond capsule summaries of US doctrine. At the same time, US criminal law pays just as little attention to its German counterpart—or for that matter to the criminal law of any other nation—though not out of a sense of superiority but for simple lack of curiousity, aside from the obvious language barriers that plague all comparative law work. Yet interest in German criminal law in the United States has grown over the past fifty years, at least among academics, in the wake of the work of Jerome Hall, G. O. W. Mueller, and—most importantly—George Fletcher.

5. Toward a General Theory of Criminal Law

Fletcher’s work distinguishes itself not only from other comparative, and non-comparative, criminal law scholarship in the United States, but also from much comparative criminal law scholarship in other countries through its intellectual ambition and instrumental approach to comparative research. Fletcher’s mode of comparative scholarship recalls Feuerbach’s more than it does Mittermaier’s. In fact, Fletcher even uses a contemporary version of Feuerbach’s linguistic analogy; he compares his project to Chomsky’s search for a universal grammar. 56 Fletcher pursues an essentially theoretical project, unattached to any particular legal system; aspects of various criminal law regimes throughout the world—notably German and Anglo-American criminal law, and, to a lesser extent, French, Italian, Israeli, Russian, and international criminal law—are pressed into service in the pursuit of a universal criminal theory. Unlike Weigend, for instance, Fletcher does not turn to comparative analysis to address problems in domestic law; foreign materials thus aren’t integrated into an underlying domestic framework. There is no domestic law, no foreign law; there is only one criminal law, and all criminal law is comparative. In Fletcher’s work, the point of comparative criminal law is not reform, nor ornamentation; comparative criminal law serves the establishment of a ‘universal jurisprudence’, in Feuerbach’s term.

Fletcher’s work on substantive criminal law theory fits into the comprehensive programme for a ‘general theory of criminal law’ encompassing all of its branches—including substantive criminal law, procedural criminal law, and the law of punishment execution and sanctions—that was eloquently sketched by Jescheck in 1955, with obvious Feuerbachian roots:

As there is a general theory of the state and a general theory of macroeconomics, a general theory of criminal law also must be possible, namely one that derives not only from general-philosophical preconditions, but also proceeds from empirical-comparative foundations. For as much as the conditions of criminality might differ from country to country, the same variables are always at issue: human conduct, the violation of legal norms and legal interests, guilt and atonement, protection and rehabilitation, juveniles, adolescents, and adults, first-time offenders and recidivists, and the great problem of the selection and design of sanctions. 57

This ambitious, and exciting, project still awaits serious scholarly attention; 58 instead, since Mittermaier, comparative criminal law scholars—including Jescheck himself—have devoted themselves largely to the collection of foreign legal materials. The greatest achievement of comparative criminal law in Germany, France, Italy, and the United States remains the publication of foreign criminal codes in translation, rather than the incorporation of these primary materials into the analysis of domestic criminal law or, for that matter, a ‘general theory of criminal law’.

The danger of an abstract approach is, of course, that it neglects the very detail and context—the local nuances—that distinguish comparative criminal law from pure criminal philosophy—or ‘natural law’, in the old terminology. Comparative criminal law thus might be reduced to serve as a ready-made grab bag of possible solutions to problems that the theoretician did not, or could not, generate using her powers of thought and imagination. At the same time, there is always the danger of confusing the established doctrines of one’s domestic criminal law system with the dictates of reason, thus reducing comparative criminal law to a unilateral campaign of civilization and enlightenment—or, if you prefer, a type of criminal law missionary work. There is also the less dramatic concern that the resulting theory is beside the point, or entirely self-referential. Comparative criminal law theorizing that claims independence from any domestic system may, in the end, say a great deal about nothing in particular as it becomes too disconnected from any single body of law to affect actual doctrine anywhere in the world.

These concerns about theoretical comparative criminal law are at least as old as Feuerbach. Feuerbach cleverly, and unusually, evaded the charge of insufficient attention to positive criminal law by creating his very own positive criminal law—the Bavarian code of 1813. Not every comparatist has that luxury, if only because criminal codes are no longer drafted by academics on (royal) order.

6. International Criminal Law

Today’s theoretical comparatist, however, can point to a body of positive law that simply did not exist in Feuerbach’s time, or for that matter, in Jescheck’s time: international criminal law. It is only fitting, then, that Fletcher eventually turned his attention to international criminal law, which he contrasts with ‘parochial’ criminal law. 59 Criminal comparatists are hard at work assembling a ‘general part’ of international law, which attempts to draw on various legal systems and whatever little precedent there is in the field of international criminal law to create a system of general principles of criminal responsibility, in analogy to the general part of domestic criminal law and codes. 60

The notoriously vague and often outright puzzling provisions of the Rome Statute of the International Criminal Court are best read as reflecting negotiated diplomatic compromises rather than some carefully constructed comprehensive view of criminal responsibility. At any rate, they have been taken by criminal comparatists as open invitations to explore how different domestic doctrines of criminal law handle central questions of criminal liability such as intent and other forms of mens rea, accomplice and group liability, inchoate criminality (conspiracy, attempt, solicitation), and the availability of defences (e.g. self-defence, necessity, duress, superior orders, and ignorance of law). 61

The internationalization—and regionalization 62 —of criminal law is also creating new opportunities for comparative work in procedural criminal law. Left without specific procedural guidelines, international criminal tribunals have been forced to generate procedural rules on the fly, based on general overviews of norms, institutions, and practices in various legal systems across the world prepared by the court’s staff. These norms, as well as their application in particular cases, must then be subjected to review under applicable international human rights norms, which in turn cannot be interpreted except in light of the various procedural traditions represented by the tribunal’s judges. 63

III. Selected Topics in Comparative Criminal Law

After some general remarks about the enterprise of comparative criminal law, it’s time to explore some more or less illustrative issues that have attracted, or might attract, the attention of comparatists. 64 Under a familiar analytic scheme, the field of penal law is divided into three aspects. Substantive criminal law or criminal law proper (Strafrecht) concerns itself with the general principles of criminal liability, in its general part, and specific offence definitions, in its special part. Criminal procedure (Strafprozeßrecht) deals with the imposition of the general and specific norms of substantive criminal law in particular cases. The law of punishment execution and sanctions (Strafvollzugsrecht) covers the quantity and quality of sanctions for violation of criminal norms as well as the conditions of their actual infliction on convicted offenders.

The following selection of topics is subjective, and so is the selection of comparative materials. Topics have been drawn from substantive criminal law; no attempt has been made to provide a comprehensive overview of comparative penal law as a whole, or even of comparative substantive criminal law in particular. 65 For simplicity’s sake, familiar comparative labels such as ‘Anglo-American’ and ‘continental’, ‘civil’ and ‘common’ will appear from time to time. Their use does not imply a commitment to the position that any of them capture some distinctive essence; they are used merely for convenience. In the end, comparative work always requires careful attention to the law of specific jurisdictions, which may or may not permit generalization to a more abstract—collective or systematic—level of comparison. Comparison that begins with generic contrasts between artificial blocs all too easily descends into the fruitless reaffirmation of unexamined prejudices (or, if you prefer, preconceived notions), particularly if the blocs were assembled for the very purpose of tendentious comparison. This has been a danger particularly in comparative criminal procedure, where ‘adversarial’ and ‘inquisitorial’ systems have long, and with increasing futility, locked horns. 66

Throughout, an effort has been made to highlight issues for comparative analysis, rather than to provide a panoramic view of criminal law throughout the world. 67 US law figures prominently in the discussion, reflecting both the author’s personal perspective and the increasing significance of US law as a point of reference, particularly for purposes of law reform, where it is often compared and contrasted with German criminal law. 68

1. General Part

(a) punishment theory.

Common law and civil law systems generally operate with the same palette of rationales for punishment: retribution, general and specific deterrence, incapacitation, rehabilitation. German criminal law in 1933 adopted a two-track system that distinguishes between punishments and measures; only the latter may rely exclusively on considerations of incapacitation and rehabilitation, while ‘true’ punishments must reflect the defendant’s culpability. This distinction may retain the principled purity of punishments properly speaking, but is difficult to maintain once it becomes clear that measures may include indeterminate detention for life. 69

Rehabilitation has fallen into disfavour in the United States, where the dominant rationale for punishment in the War on Crime has been incapacitation, resulting in record incarceration rates and a renaissance of capital punishment. While rehabilitation continues to enjoy greater support in continental systems, a new rationale for punishment has been championed in continental criminal law. ‘Positive general prevention’ attempts to justify the threat, imposition, and infliction of punishment not in terms of its effect on potential law-breakers but as a means to reinforce the commitment to law among the law-abiding. Positive general prevention is said to avoid both retribution’s barbaric pointlessness and deterrence’s immoral use of threats to cow citizens into compliance. In the end, however, it is unclear whether it does more than attach a more palatable label to familiar, and familiarly troubled, rationales, not unlike rehabilitation’s failed attempt to evade the problem of legitimation altogether by redefining punishment as ‘treatment’. 70

(b) Victims

The victim has undergone a ‘rediscovery’ in both Anglo-American and continental criminal law in recent decades. In German criminal proceedings, the victim can appear as a parallel prosecutor (Nebenkläger), for instance, in sexual assault cases. In cases of petty crime, the victim may even assume the role of private prosecutor (Privatkläger), such as in shoplifting prosecutions. 71 In the United States, victims also have been granted various procedural rights, including—most notably—the right to contribute victim impact statements to be considered at sentencing, along with the right to be consulted regarding plea agreements, the right to be accompanied to trial by a ‘victim’s advocate’, and so on. 72

Upon closer inspection, however, it turns out that the victim’s renaissance in US criminal law has very little to do with developments in civil law countries and, for that matter, in other common law countries, including the United Kingdom. 73 In the United States, the rise of the ‘victims’ rights movement’ coincided with the War on Crime and the triumph of incapacitation over other rationales for punishment, and rehabilitation in particular. The pursuit of victims’ rights was thought to be inconsistent with the protection of the rights of those suspected of, charged with, and convicted of crime. The fight for victims’ rights, in fact, was first and foremost a fight against defendants’ rights. So from the very beginning an important component of the victims’ rights agenda in the United States included calls for the reform of the law of criminal evidence to require the introduction of all relevant evidence of guilt even where its relevance was outweighed by its potential for confusing or inflaming the jury, the long-term incapacitation of repeat offenders, the reintroduction and expansion of capital punishment, the harshening of prison conditions, and every other item on an ever-growing wish list of tough-on-crime measures. 74

The rediscovery of the victim elsewhere was considerably less punitive in nature. For instance, one of the central victim-based reforms in German criminal law was the introduction of a provision that permitted the resolution of certain criminal cases through victim-offender mediation, rather than through a traditional criminal trial (StGB § 46 a). By contrast, the mainstream US victims’ rights movement showed remarkably little interest in restorative justice programmes or other forms of less punitive responses to crime such as victim compensation laws, which had first appeared in the 1960s.

(c) Jurisdiction

Among the formal prerequisites for the imposition of criminal liability, jurisdiction recommends itself for comparative analysis not only because different legal systems have taken different approaches to the issue but also because they have given it different levels of attention. Anglo-American criminal law traditionally has largely ignored the question of criminal jurisdiction (in sharp contrast to the question of civil jurisdiction). Criminal jurisdiction was territorial; it was simply taken for granted that the place of the crime determined jurisdiction. The question attracted no theoretical interest, and doctrinal questions were by and large limited to the issue whether a particular offence was committed in one place or another, or perhaps both, in which case two sovereigns were found to have territorial jurisdiction.

Even today, criminal jurisdiction in Anglo-American law is rarely, if ever, covered in criminal law courses and continues to be treated as virtually synonymous with territoriality. 75 This is puzzling since other bases of jurisdiction have begun to enter positive law, with federal criminal law leading the way in the United States. The non-territorial bases of federal criminal jurisdiction are difficult to detect because the federal criminal law contains no comprehensive provision on jurisdiction. Specific federal statutes, however, have extraterritorial reach, generally on the basis of the passive personality principle, which attaches criminal jurisdiction on the basis of the victim’s citizenship. 76 Active personality, which turns on the offender’s status rather than the victim’s, has long since been recognized as not merely one, but the only, basis of military criminal jurisdiction in US law. 77 It also plays an important role in Native American criminal law, which depends crucially on the offender’s status (‘Indian’ versus ‘non-Indian,’ tribe member versus non-tribe member) 78 and continues to stump courts accustomed to associating criminal jurisdiction with territoriality. 79

By contrast, other legal systems recognize the fundamental importance of the question of criminal jurisdiction, conceptualized as part of the more general issue of applicability, which also includes the question of retroactivity, or temporal applicability. Even there, however, the doctrine remains undertheorized as policy considerations, the interpretation of international treaties, and technical questions of extradition have attracted the lion’s share of attention in the literature and in the doctrine. 80 Still, the failure to even recognize the need to develop a grounded and comprehensive account of the basis of criminal jurisdiction is symptomatic of a general assumption in Anglo-American criminal law that the power to punish is essentially discretionary and thus beyond the scope of critical inquiry. Once the sovereign has taken offence at the violation of one of its criminal norms, it is free to respond in any way it chooses.

Even the introduction of non-territorial criminal jurisdiction in US criminal law is best seen not as the result of a deep reconsideration of the bases of the state’s punitive power, but rather as the reaffirmation of the sovereign’s power to reassert its authority even beyond the polity’s geographical boundaries. One might argue, for instance, that the active personality principle is more easily justified than, say, territoriality because the offender’s citizenship is a better proxy for consent to criminal jurisdiction than the location of the offence. It is no accident that the question of extraterritorial jurisdiction has attracted attention in the United States only when the sovereign itself took offence at the possibility that it, in the person of its official representatives, might be subject to another polity’s criminal jurisdiction. The suggestion that a Belgian court might have universal jurisdiction over a former President of the United States and Secretary of State (George H. W. Bush and Colin Powell, respectively, for the bombing of a civilian shelter during the 1991 Gulf War) was rebuffed as a matter of international politics, not on principled grounds of criminal law doctrine. After all, it could hardly be said to violate some as yet undeveloped basic tenets of criminal jurisdiction in US law. US resistance to the international criminal jurisdiction asserted by the international criminal court has followed suit, with the exception that it is has proved more difficult to exert political pressure on scores of signatory nations than on a single country. 81

(d) Analysis of Criminal Liability

It is generally assumed that the analysis of criminal liability differs widely in common law and civil law, with one system requiring actus reus and mens rea, and the other Tatbestandsmäßigkeit (tipicidad, tipicità), Rechtswidrigkeit (antijuridical, antigiuridicità), and Schuld (culpabilidad, colpevolezza). The significance of these structural matters tends to be exaggerated; nonetheless, they are worth one’s attention if only because supposed structural incompatibility can be an unnecessary impediment to comparative analysis.

Modern US criminal law uses an analytic structure that is easily compatible with the German scheme. The Model Penal Code defines a crime as ‘conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests’. 82 Criminal liability thus has three basic components: (1) conduct, (2) without justification, and (3) without excuse. To count as a crime, ‘conduct’ must, however, meet several additional criteria, namely it must: (a) inflict or threaten (b) substantial harm to individual or public interests. If we put the two together, we get the Model Penal Code’s complete scheme of criminal liability. A person is criminally liable if he engages in (1) conduct that (a) inflicts or threatens (b) substantial harm to individual or public interests (2) without justification and (3) without excuse.

This scheme comfortably maps onto the traditional common law scheme. It is impossible to crystallize a single coherent liability analysis from hundreds of years of Anglo-American common law. Let’s assume, however, that a crime in the common-law sense consists of two ‘offence’ elements, (1) actus reus (the guilty act) and (2) mens rea (the guilty mind). Actus reus and mens rea are necessary, but not sufficient, prerequisites of criminal liability under the common law; criminal liability requires both a criminal ‘offence’ (consisting of actus reus and mens rea) and the absence of ‘defences’. Particularly in the law of homicide, which has always managed to attract the lion’s share of doctrinal attention, courts generally divided these defences into two types, justifications and excuses. Criminal liability thus attached to an offence committed (2) without justification and (3) without excuse. The analytic schemes of the Model Penal Code and the common law therefore are more or less interchangeable depending on how one views the connection between conduct and mens rea. The Model Code defines conduct as encompassing both: conduct is ‘an action or omission and its accompanying state of mind’. Replacing ‘actus reus and mens rea’ with ‘conduct’, the common-law scheme of criminal liability therefore looks like this: (1) conduct, (2) without justification, and (3) without excuse.

The similarity to the German tripartite scheme now is clear. (1) The inquiry into Tatbestandsmäßigkeit asks whether the accused’s conduct matches the definition of a criminal offence, and is thus criminal in the formal sense. (2) The second level probes the formally criminal conduct’s Rechtswidrigkeit, or unlawfulness, which is easily reframed as an inquiry into the presence or absence of a justification. (3) Assuming Tatbestandsmäßigkeit and Rechtswidrigkeit, the third and final prerequisite for criminal liability is Schuld, which might be rendered as guilt, responsibility, or perhaps blameworthiness, or—to put it differently once again—the absence of an excuse.

Despite this basic structural compatibility, which should suffice for meaningful comparative analysis, some general differences remain (besides the inevitable distinctions in specific rules). For one, US criminal law attaches far less significance to the definitions of, and distinctions among, the various levels of inquiry. Even the Model Penal Code considered them as no more than occasionally convenient analytic devices. Unlike in other traditions (notably in German criminal law), they are not generally thought to reflect the ontology, or the phenomenology, of criminal liability. 83 Moreover, even modern Anglo-American criminal law has retained the basic distinction between offence and defence, classifying justifications and excuses (themselves defensive concepts) as types of defence, rather than as preconditions for the attachment of criminal liability. This distinction, which is largely ignored in continental criminal law, reflects the continued dominance of procedure over substance in Anglo-American criminal law. The distinction, however arbitrary, also carries considerable doctrinal significance as it separates issues that must be proved by the state, beyond a reasonable doubt, from those that the defendant may be required to prove.

(e) General Principles of Criminal Liability

Criminal liability requires conduct; mere thoughts or beliefs may not be criminalized. That much is clear, at least as a matter of principle (notwithstanding the criminalization of attempt and conspiracy, for instance). Unlike other systems, US criminal law has constitutionalized the so-called act requirement, though it is unclear whether the constitutional norm limits criminal liability to acts or, more narrowly, to voluntary acts. 84 Also unusually, US criminal law distinguishes between acts (as mere bodily movements) and voluntary acts. The constitutional norm does not reach the widespread criminalization of possession, which is widely recognized as a non-act; it bars the criminalization of the status of being a drug addict, but not the criminalization of drug possession by that same addict. 85

Generally speaking, US criminal law in particular, and Anglo-American criminal law in general, is thought to be less inclined to criminalize another non-act: omission, or the failure to act by one who is obligated to act. The general German omission statute is regularly held up as a model for more callously individualistic criminal law systems to follow. It is worth noting that this provision originally was added to the German Criminal Code in 1935. It proscribed violations of one’s ‘duty according to sound popular sentiment’, a central concept of National Socialist legal ideology, which regarded all serious crime as an act of treason, that is, as the violation of one’s loyalty to the Volk community or its personal manifestation, the Führer.

The connection between the mens rea schemes in modern Anglo-American criminal law (which has been heavily influenced by the US Model Penal Code) and in continental (German-influenced) criminal law still awaits detailed exploration. The great comparatist Jiménez de Asúa surely oversimplified matters when he claimed that the Model Penal Code drafters merely rediscovered (and relabelled) the traditional civil law mental states of dolus (purpose), dolus eventualis (knowledge), conscious culpa (recklessness), and unconscious culpa (negligence). 86 For one, the Model Code concept of recklessness lacks the subjective element of conditional acceptance that is generally thought to be required for conscious culpa (though an argument can be made that the Model Code’s concept of recklessness makes room for an element of acceptance by requiring ‘conscious disregard’ of a risk, rather than mere awareness of it). 87

After traditionally opposing corporate criminal liability, civil law countries have gradually moved closer to the contrary Anglo-American position. Even Germany, which in principle continues to maintain that corporate entities are capable neither of engaging in criminal conduct nor of forming culpable mental states, has quietly recognized corporate ‘order contraventions’ (Ordnungswidrigkeiten), to be distinguished from corporate ‘criminal acts’ (Straftaten). These ‘order offences’ are subject to—potentially hefty—‘monetary fines’ (Geldbußen), to be distinguished from ‘monetary penalties’ (Geldstrafen). 88

In general, the modern US law of complicity—which is related to corporate liability in so far as it involves imputing one (natural) person’s conduct to another (juristic) person—today resembles continental law less than it did before the Model Penal Code. The distinctions in traditional Anglo-American criminal law among principals in the first and in the second degree and accessories before, at, and after the fact rivalled the continental taxonomy of Täter, mittelbarer Täter, Mittäter, Nebentäter, and Teilnehmer in complexity. German criminal law retained—and in fact further refined—the traditional taxonomy, reaffirming it around the organizing concept of ‘act dominion’ (Tatherrschaft). 89 The Model Penal Code instead flattened the common law of complicity as unnecessarily and distractingly formalistic, retaining only a distinction between principal and accomplice and expanding criminal liability to attempted complicity. While the requirement of purpose was retained for accomplice liability, some US jurisdictions now criminalize non-purposive facilitation as a separate offence.

In the law of defences, some historical differences have been eroding. German criminal law continues to reject a formal proportionality requirement in the law of self-defence. Nonetheless, it has begun to recognize limits on the right to stand one’s ground that in the final analysis approximate the long-standing Anglo-American requirement that even those who are in the right must retreat if they can do so in complete safety. In the law of necessity, Anglo-American criminal law continues to have some difficulty with a defence of circumstantial (as opposed to personal) duress, which has long been recognized in German criminal law. At the same time, German criminal law continues to insist that necessity cannot provide a defence in homicide cases because it is improper, or impossible, to measure the value of human life. This position also retains strength in Anglo-American criminal law, despite the countervailing influence of the Model Penal Code which rejected the taboo in favour of a general lesser-evil rule. 90

The traditional Anglo-American position on insanity, which recognized only a limited defence in case of incapacity to know the difference between right and wrong, has shown remarkable resilience (and, in fact, many US jurisdictions abandoned, or at least significantly limited, the insanity defence in the wake of John Hinckley’s 1982 insanity acquittal for his botched assassination attempt of Ronald Reagan 91 ). The Model Penal Code position, which was adopted in several US jurisdictions, more closely resembles the continental position in also recognizing insanity based on the volitional incapacity to control one’s behaviour. 92 Anglo-American criminal law remains hostile to intoxication as a defence, either precluding it altogether or, more commonly, limiting it to certain offences (e.g. those requiring intent or knowledge, rather than recklessness). German criminal law places no such limitations on the use of intoxication as a defence, but then criminalizes the intoxication itself (StGB § 323a). 93

2. Special Part

Any attempt to provide even a preliminary overview of the enormous number and variety of criminal offences that constitute the special parts of various jurisdictions found in various criminal law systems would far exceed the scope of this essay. Given the continuous expansion of modern criminal law in criminal and non-criminal, consolidated and unconsolidated, statutes and administrative rules and regulations, capturing the breadth of the special part of any single jurisdiction would be difficult enough. For that reason we will focus on some of the broader characteristics of special parts in common and civil law systems, rather than on specific offences.

The concept of Rechtsgut (bien jurídico, bene giuridico) plays a central role in the structure of the special part of continental criminal law, as well as in its theory of criminal law in general. 94 A crime is defined as a violation of a Rechtsgut, and the special part consists of offence provisions designed to protect various Rechtsgüter. The closest analogue, at least functionally, to the ‘Rechtsgut principle’ in Anglo-American criminal law is the much-cricitized ‘harm principle’. 95 The all-important question of what qualifies as a Rechtsgut remains unsettled. While it is easy enough to define a Rechtsgut as any interest that a criminal provision is designed to protect, a circular definition of this sort has no critical bite. Even if one could identify a criminal statute that does not protect an interest that could be classified as a Rechtsgut, it is unclear what such a finding would imply. Given that the Rechtsgut is grounded in preconstitutional criminal law theory rather than in a constitutional guarantee, it is generally understood that an offence without a Rechtsgut is not, for that reason alone, unconstitutional or invalid. 96 Even without critical force, however, the Rechtsgut may provide a useful analytic device for statutory interpretation that could take the place of a hodgepodge of concepts used by Anglo-American courts for that purpose.

Without a concept of Rechtsgut, US courts have turned to constitutional law, rather than criminal law, in cases that raise the question of the permissible scope of the special part. For instance, the US Supreme Court considered whether homosexual sex may be criminalized in keeping with the constitutional right to privacy of consenting adults, 97 whether the private consumption of pornography may be punished in keeping with the right to freedom of thought, 98 whether criminalizing assisted suicide violates a constitutionally recognized right to die, 99 and so on.

Both common law and civil law extend the protection of the relevant interests or rights to acts that fall short of actual interference. Apart from the law of inchoate offences such as attempt, a criminal offence may be consummated by posing a threat or even engaging in conduct that ordinarily poses a threat of harm even if it may not have posed a threat in the particular case. Anglo-American criminal law boasts a wide and ever-expanding variety of implicit and explicit endangerment offences, even if the taxonomy of criminal offences has not been mapped out as systematically as in continental criminal law.

Traditionally, the Anglo-American law of inchoate (incomplete, preparatory, anticipatory) offences has differed significantly from continental criminal law. Notably the offence of conspiracy, which historically could attach not only to any criminal offence but even to non-criminal yet otherwise objectionable (‘corrupt, dishonest, fraudulent, or immoral’) behaviour, has no direct analogue in continental criminal law, as the Allies noticed as they prepared for the Nuremberg Trials:

During much of the discussion, the Russians and French seemed unable to grasp all the implications of the concept; when they finally did grasp it, they were genuinely shocked. The French viewed it entirely as a barbarous legal mechanism unworthy of modern law, while the Soviets seemed to have shaken their head in wonderment—a reaction, some cynics may believe, prompted by envy. But the main point of the Soviet attack on conspiracy was that it was too vague and so unfamiliar to the French and themselves, as well as to the Germans, that it would lead to endless confusion. 100

The Model Penal Code retained the offence of conspiracy, though limiting it to criminal objectives. It may well be that modern continental criminal law can achieve much of the same result through a broad use of doctrines of complicity and attempt. 101 Still, it should be kept in mind that even the modern US view of conspiracy remains extremely broad: The Model Penal Code expanded conspiracy to cover so-called ‘unilateral’ conspiracies, which require merely the belief that one has entered into an agreement with another, and generally punished conspiracies (and all other inchoate offences) as harshly as consummated offences. Federal criminal law, in fact, provides for harsher punishments of conspiracies to commit an offence than for the commission of the offence itself, permits punishment for both the conspiracy to commit an offence and its commission, and generally treats proof of conspiracy as sufficient for liability for complicity in the object offence. The Model Penal Code in turn significantly broadened the scope of attempt liability to include any act that amounts to a ‘substantial step’ toward the commission of the object offence, provided that act is indicative of the defendant’s criminal purpose. Note also that in US law—unlike in German law, for instance—attempt, conspiracy, and solicitation are general inchoate offences that attach to any criminal offence, including misdemeanours.

IV. Comparative Criminal Law in Context

Comparative criminal law is best seen as a mode of critical analysis of law, that is, as one way to gain critical distance from a given system of criminal law by placing it within a larger context. Criminal law history is another. 102 So is other transdisciplinary research, drawing on the tools and insights of the social sciences and humanities. Within comparative criminal law, transnational analysis is only one possible approach among many. Others include intranational comparison among various types of law (torts, contracts, property, taxation, victim compensation) and regulation within a given jurisdiction and among criminal law systems across domestic jurisdictions.

It is important, in other words, to place comparative criminal law itself within a larger context. Detached from a broader vision of thinking about, teaching, and critiquing law, comparative criminal law all too easily slips into essayistic travel reportage or the collection of criminal exotica, if not the considerably less harmless confirmation of preconceived notions about the superiority—or inferiority—of one’s domestic criminal law system. Comparative analysis has the potential to make an important contribution to criminal law, a subject that is both more parochial and more in need of critical analysis than any other form of state action through law. Although comparative criminal law has made strides in recent years, by starting to lay the foundation for sophisticated and impactful work, much of its scholarly, pedagogic, and practical potential remains untapped.

Luis Jiménez de Asúa , Tratado de derecho penal (4th edn, 1964 )

Google Scholar

Google Preview

George P. Fletcher , Rethinking Criminal Law ( 1978 )

Juan Bustos Ramírez and Manuel Valenzuela Bejas , Derecho penal latinoaméricano comparado ( 1981 )

Mirjan R. Damaška , The Faces of Justice and State Authority: A Comparative Approach to the Legal Process ( 1986 )

Albin Eser , George P. Fletcher , and Karin Cornils (eds), Justification and Excuse: Comparative Perspectives ( 1987 )

Markus D. Dubber , ‘ American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure ’, ( 1997 ) 49 Stanford LR 547 ff.

George P. Fletcher , Basic Concepts of Criminal Law ( 1998 )

James Q. Whitman , Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe ( 2003 )

Alberto Cadoppi , Introduzione allo studio del diritto penale comparato (2nd edn, 2004 )

Liora Lazarus , Contrasting Prisoners’ Rights: A Comparative Examination of Germany and England ( 2004 )

Markus D. Dubber , The Police Power: Patriarchy and the Foundations of American Government ( 2005 )

Richard Vogler , A World View of Criminal Justice ( 2005 )

George P. Fletcher , The Grammar of Criminal Law: American, Comparative, and International (vol I: Foundations, 2007 )

Kevin J. Heller and Markus D. Dubber (eds), The Handbook of Comparative Criminal Law ( 2007 )

Stephen C. Thaman , Comparative Criminal Procedure: A Casebook Approach (2nd edn, 2008 )

Dirk van Zyl Smit and Sonja Snacken , Principles of European Prison Law and Policy Penology and Human Rights ( 2009 )

Markus D. Dubber , ‘ The Comparative History and Theory of Corporate Criminal Liability ’, ( 2013 ) 16 New Criminal LR 203 ff.

Markus D. Dubber , ‘The Legality Principle in American and German Criminal Law: An Essay in Comparative Legal History’, in Georges Martyn , Anthony Musson , and Heikki Pihlajamäki (eds), From the Judge’s Arbitrium to the Legality Principle: Legislation as a Source of Law in Criminal Trials 365 ( 2013 )

Chiesa, Luis , Substantive Criminal Law: Cases, Comments and Comparative Materials ( 2014 )

Markus D. Dubber (ed), Foundational Texts in Modern Criminal Law ( 2014 )

Markus D. Dubber and Tatjana Hörnle , Criminal Law: A Comparative Approach ( 2014 )

Markus D. Dubber and Tatjana Hörnle (eds), The Oxford Handbook of Criminal Law ( 2014 )

Jean Pradel , Droit pénal comparé (4th edn, 2016 )

Markus D. Dubber , The Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective ( 2018 )

Adolf Sprudzs, ‘The International Encyclopedia of Comparative Law: A Bibliographical Status Report’, (1980) 28 AJCL 93 ff, 94.

See generally Markus D. Dubber, The Police Power: Patriarchy and the Foundations of American Government (2005); Markus D. Dubber and Mariana Valverde (eds), The New Police Science: The Police Power in Domestic and International Governance (2006); Markus D. Dubber, The Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective (2018).

See F. Pollock and F. W. Maitland, The History of English Law Before the Time of Edward I, vol I (2nd edn, 1898) 454; cf the German offence of Hausfriedensbruch (breach of the house peace) even today: StGB § 123; see also StGB § 125 (Landfriedensbruch: breach of the land peace). For an insightful recent historical study of ‘house peace’, see Inken Schmidt-Voges, Mikropolitiken des Friedens: Semantiken und Praktiken des Hausfriedens im 18. Jahrhundert (2015).

See Frederick Pollock, ‘The King’s Peace’, (1885) 1 LQR 37 ff; Gustav Radbruch, ‘Der Ursprung des Strafrechts aus dem Stande der Unfreien’, in Elegantiae Juris Criminalis: Vierzehn Studien zur Geschichte des Strafrechts (1938; 2nd edn, 1950), 1 ff (transl Gustav Radbruch, ‘The Origin of Criminal Law in the Status of the Unfree’, in Markus D. Dubber (ed), Foundational Texts in Modern Criminal Law (2014) 407 ff).

As a matter of comparative criminal law history, no similar urgency to radically rethink state punishment was felt in the United States. See Markus D. Dubber, ‘“An Extraordinarily Beautiful Document”: Jefferson’s Bill for Proportioning Crimes and Punishments and the Challenge of Republican Punishment’, in Markus D. Dubber and Lindsay Farmer (eds), Modern Histories of Crime and Punishment (2007), 115 ff. To have recognized the Enlightenment challenge to the legitimacy of state punishment is one thing; to address it is another. See, e.g., Arnd Koch, et al (eds), Feuerbachs Bayerisches Strafgesetzbuch: Die Geburt liberalen, modernen und rationalen Strafrechts (2014).

See, e.g., Günter Frankenberg, ‘Critical Comparisons: Rethinking Comparative Law’, (1985) 26 Harvard Journal of International Law 411 ff.

William Blackstone, Commentaries on the Laws of England (vol 4, 1769), at 162; see generally Dubber, The Police Power (n 2 ).

See Markus D. Dubber, ‘Toward a Constitutional Law of Crime and Punishment’, (2005) 55 Hastings LJ 509 ff.

See, e.g., StGB §§ 3–7; see Markus D. Dubber and Tatjana Hörnle, Criminal Law: A Comparative Approach (2014), Ch. 4.

See Albin Eser, ‘The Importance of Comparative Legal Research for the Development of Criminal Sciences’, in Roger Blanpain (ed), Law in Motion (1997) 492 ff, 499 (passive personality jurisdiction).

See Dubber (n 8).

There are notable exceptions, of course. See e.g. George P. Fletcher, Rethinking Criminal Law (1978), Ch 2.

See James Q. Whitman, ‘The Comparative Study of Criminal Punishment’, (2005) 1 Annual Review of Law & Social Science 17 ff, 20.

For an example in the field of comparative criminal legal history, see James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (2003).

See, e.g., Marc Ancel, ‘Some Reflections on the Value and Scope of Studies in Comparative Criminal Law’, in Edward M. Wise and Gerhard O. W. Mueller (eds), Studies in Comparative Criminal Law (1975), 3 ff, 10.

See, e.g., Marc Ancel, Introduction comparative aux codes pénaux Européens (1956), 5 (discussing Joseph-Louis-Elzéar Ortolan, Cours de législation pénale comparée (2 vols, 1839–41); also Jean Pradel, Droit pénal comparé (2nd edn, 2002), 18–19 (discussing comparative aspects of Pellegrino Rossi’s Traité de droit pénal (1829)).

See, e.g., Walther Hug, ‘The History of Comparative Law’, (1932) 45 Harvard LR 1027 ff, 1054 (Feuerbach ‘the first to conceive the science of comparative law’).

Paul Johann Anselm Feuerbach, ‘Versuch einer Criminaljurisprudenz des Koran’, (1800) 2 Bibliothek für die peinliche Rechtswissenschaft und Gesetzkunde 163 ff.

On Feuerbach as comparatist, see Gustav Radbruch, Paul Johann Anselm Feuerbach: Ein Juristenleben (3rd edn, 1969), 190 ff.

Feuerbach (n 18), 164.

See the subtitle of Hegel’s Philosophy of Right of 1821: Natural Law and State Science in Outline ( Naturrecht und Staatswissenschaft im Grundrisse ).

Feuerbach (n 18 ), 163.

See Barbara Kaltz, ‘Christian Jacob Kraus’ Review of “Linguarum totius orbis vocabularia comparativa” (ed Peter Simon Pallas, St Petersburg, 1786): Introduction, Translation and Notes’, (1985) 12 Historiographia Linguistica 229 ff.

cf George P. Fletcher, The Grammar of Criminal Law: American, Comparative, and International (Volume One: Foundations) (2007).

See generally Markus D. Dubber, The Sense of Justice: Empathy in Law and Punishment (2006).

See Markus D. Dubber, ‘The German Jury and the Metaphysical Volk : From Romantic Idealism to Nazi Ideology’, (1995) 43 AJCL 227 ff. The jury, and lay participation generally, has remained a popular topic in comparative criminal procedure to this day. See, e.g., Symposium ‘Lay Participation in Modern Law’, (2016) 3:2 Comparative Legal History 224–324.

On Montesquieu’s two ‘very simple and almost simplistic’ comments on comparative criminal law in Spirit of Laws , see Pradel (n 16 ), 15; see also David Carrithers, ‘Montesquieu’s Philosophy of Punishment’, (1998) 19 History of Political Thought 213 ff.

See Marianne Constable’s stimulating classic study, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law and Knowledge (1994).

On the traditional concept of ‘oeconomy’ and its connection to ‘police’, see Dubber, The Police Power (n 2 ).

See, in this regard, Esin Örücü, Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition (1999).

Hans-Heinrich Jescheck, Entwicklung, Aufgaben und Methoden der Strafrechtsvergleichung (1955), 38.

On the fascinating (but much neglected) history of German colonial criminal law, see Wolfgang Naucke, ‘Deutsches Kolonialstrafrecht 1886–1918’, (1988) 7 Rechtshistorisches Journal 297 ff; see also Markus D. Dubber, ‘Colonial Criminal Law and Other Modernities: European Criminal Law in the Nineteenth and Twentieth Century’, in Heikki Pihlajamäki, Markus D. Dubber, and Mark Godfrey (eds), The Oxford Handbook of European Legal History (2018), 1052 ff.

On the exportation of English-drafted criminal codes to the colonies, see, e.g., Barry Wright, ‘Macaulay’s Indian Penal Code: Historical Context and Originating Principles’, in Wing-Cheong Chan, Barry Wright, and Stanley Yeo (eds), Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform (2011), 19–55; M. L. Friedland, ‘R. S. Wright’s Model Criminal Code: A Forgotten Chapter in the History of the Criminal Law’ (1981) 1 Oxford Journal of Legal Studies 307 ff. For an altogether different model of European influence on criminal law reform in a developing but independent nation, see Steven Lowenstein, Materials on Comparative Criminal Law as Based Upon the Penal Codes of Ethiopia and Switzerland (1965).

On the scientific ambitions of German criminal law, see Markus D. Dubber, ‘The Promise of German Criminal Law: A Science of Crime and Punishment’, (2005) 6 German LJ 1049 ff; see also Markus D. Dubber, ‘Die Anspruchslosigkeit des awissenschaftlichen Strafrechts’, (2009) 121 Zeitschrift für die gesamte Strafrechtswissenschaft 977 ff.

Jescheck (n 31 ), 28.

Hans-Heinrich Jescheck and Thomas Weigend, Lehrbuch des Strafrechts: Allgemeiner Teil (5th edn, 1996), 195 (discussing the famous cannibalism on the high seas case of Regina v Dudley and Stephens , [1884] 14 QBD 273). Jescheck was in excellent company. See already G[ustav] L. Radbruch, ‘Jurisprudence in the Criminal Law’, (1936) 18 Journal of Comparative Legislation & International Law 212; Gustav Radbruch, Der Geist des englischen Rechts (1947), 74. For further discussion, see Dubber, The Dual Penal State (n 2 ), 67–74.

As the discussion of Feuerbach (and even of Mittermaier) makes clear, German comparative criminal law didn’t start out this way. When, and why, it took a different turn is a question both interesting and beyond the scope of this chapter.

See, e.g., Hans Joachim Hirsch (ed), Krise des Strafrechts und der Kriminalwissenschaften? (2001) (proceedings of a conference of foreign criminal law scholars who have received funding from the Alexander von Humboldt Foundation). Between 1953 and 2000, the Humboldt Foundation alone sponsored almost 200 foreign scholars doing research on criminal law in Germany.

Domestically, however, the American criminal process has come under attack from comparatists who claim a European, and notably a German, advantage in criminal procedure. Compare John H. Langbein, ‘Land without Plea Bargaining: How the Germans Do It’, (1979) 78 Michigan LR 204 ff with Markus D. Dubber, ‘American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure’, (1997) 49 Stanford LR 547 ff; see also Symposium, ‘The European Advantage in Criminal Procedure’, (2001) 100 West Virginia LR 765 ff.

See Eser (n 10 ), 492 ff, 516 (‘common-law missionaries’ in ‘the successor states to the ex-Soviet Union’).

Gustave de Beaumont and Alexis de Tocqueville, Du système pénitentiaire aux États-Unis, et de son application en France; suivi d’un appendice sur les colonies pénales et de notes statistiques (1833); on the influence of the American penitentiary movement on German criminal law, see Markus D. Dubber, ‘The Right to be Punished: Autonomy and its Demise in Modern Penal Thought’, (1998) 16 Law & History Review 113 ff.

Hans-Heinrich Jescheck, ‘The Significance of Comparative Law for Criminal Law Reform’, (1981) 5 Hastings International & Comparative LR 1 ff, 20 ff.

cf already Karl Stooß, Die Schweizerischen Strafgesetzbücher zur Vergleichung zusammengestellt (1890); Die Grundsätze des Schweizerischen Strafrechts vergleichend dargestellt (1892–3).

On the Model Penal Code project, see Markus D. Dubber, ‘Penal Panopticon: The Idea of a Modern Model Penal Code’, (2000) 4 Buffalo Criminal LR 53 ff; Markus D. Dubber, ‘The Model Penal Code, Legal Process, and the Alegitimacy of American Penality’, in Dubber (n 4 ), 239; Markus D. Dubber, An Introduction to the Model Penal Code (2nd edn, 2015).

Consider in this regard the Model Penal Code for Latin America, a self-consciously (transnational) comparative project inspired by the ALI’s Model Penal Code and Uniform Commercial Code. Juan Bustos Ramirez and Manuel Valenzuela Bejas, Le système pénal des pays de L’Amerique Latine (transl Jacqueline Bernat de Celis, 1983), 7; see also Jescheck (n 42 ), 1 ff, 18 (Model Penal Code as example of ‘regional’ comparative criminal law reform project).

On American criminal law as domestic comparative law, see Markus D. Dubber, ‘Reforming American Penal Law’, (1999) 90 Journal of Criminal Law & Criminology 49 ff.

For a casebook based on this approach, see Markus D. Dubber and Mark G. Kelman, American Criminal Law: Cases, Statutes, and Comments (2nd edn, 2009).

See Markus D. Dubber, ‘Policing Possession: The War on Crime and the End of Criminal Law’, (2002) 91 Journal of Criminal Law & Criminology 829 ff; see generally Dubber, The Dual Penal State (n 2 ).

For rare citations to the German criminal code in the official Commentaries to the Model Code, see, e.g., Model Penal Code Commentaries (1985), § 3.02, at 11, § 210.3, at 65. On the similarity between the structure of the Model Code and German criminal law, see Dubber, Introduction (n 44 ).

P. J. A. Feuerbach, Lehrbuch des gemeinen in Deutschland gültigen peinlichen Rechts (1801) (English translation (excerpts): P. J. A. Feuerbach, ‘Textbook of the Common Penal Law in Force in Germany’, in Dubber (n 4 ), 373 ff).

Vergleichende Darstellung des deutschen und ausländischen Strafrechts: Vorarbeiten zur deutschen Strafrechtsreform (16 vols, 1905–9).

Also cf the use of surveys assembled by the Max-Planck-Institute for Foreign and International Criminal Law in the jurisprudence of the German Constitutional Court. See, e.g., BVerfGE 120 at 224 (26 February 2008) (Incest Case).

Instead, they were largely derived from a phenomenology of crime curiously above all comparative nuance. See generally Dubber, ‘Promise’ (n 34 ), 1049 ff; Dubber, The Dual Penal State (n 2 ).

For an approach to comparative criminal law based on a broader, systemic, comparison, see Dubber and Hörnle (n 9 ).

Thomas Weigend, ‘Zwischen Vorsatz und Fahrlässigkeit’, (1981) 93 Zeitschrift für die gesamte Strafrechtswissenschaft 657 ff.

George P. Fletcher, Basic Concepts of Criminal Law (1998), 5; see Fletcher (n 24 ).

Jescheck (n 31 ), 27 (emphasis in original).

Although Fletcher has continued to make strides in this direction; Fletcher (n 24 ).

George P. Fletcher, ‘Parochial versus Universal Criminal Law’, (2005) 3 Journal of International Criminal Justice 20 ff; Fletcher (n 24 ).

See, e.g., Antonio Cassese and Paola Gaeta, Cassese’s International Criminal Law (3rd edn, 2013); Kai Ambos, Treatise on International Criminal Law (3 vols, 2013–2016); Gerhard Werle, Principles of International Criminal Law (3rd edn, 2014).

For an alternative view of the international criminal law enterprise, see Markus D. Dubber, ‘Common Civility: The Culture of Alegality in International Criminal Law’ (2011) 24 Leiden Journal of International Law 923.

See, e.g., the emergence of “European criminal law” as a subject. e.g. Helmut Satzger, Internationales und Europäisches Strafrecht (7th edn, 2016); André Klip, European Criminal Law: An Integrative Approach (3rd edn, 2016).

See, e.g., the different views of the requirement of ‘equality of arms’ in the criminal process explored in Prosecutor v Aleksovski , Case No. IT-95-14/1-AR73, PP 23–25 (Appeals Chamber, International Criminal Tribunal for the Former Yugoslavia, 16 February 1999).

For a detailed exploration of these and other issues from a comparative perspective focused on German and US criminal law, see Dubber and Hörnle (n 9 ); for a broader overview, see Kevin J. Heller and Markus D. Dubber (eds), The Handbook of Comparative Criminal Law (2007). Many of the contributions to the Oxford Handbook of Criminal Law , which cover a wide range of topics in criminal law doctrine and scholarship, also take a comparative perspective. See Markus D. Dubber and Tatjana Hörnle (eds), The Oxford Handbook of Criminal Law (2014).

Substantive criminal law, or criminal law proper, traditionally has attracted less comparative interest than its sister disciplines criminal procedure and—at least historically—punishment execution. Even Feuerbach, whose main interest lay in substantive criminal law, showed a programmatic enthusiasm for comparative substantive criminal law, but in fact produced more significant comparative work on criminal procedure (notably on the hotly contested question of lay participation in general, and of the jury in particular). Other chestnuts of comparative criminal procedure include the control, desirability, and inevitability of prosecutorial and police discretion, the roles of judges, prosecutors, and defence attorneys in the criminal process, the control and legitimacy of plea bargaining, and the procedural role of victims. Representative comparative works on all three aspects of penal law appear in the bibliography.

cf Máximo Langer, ‘The Long Shadow of the Adversarial and Inquisitorial Categories’, in Dubber and Hörnle (n 69 ), 887 ff.

For just such a panoramic view of the law of criminal procedure, see the excellent collection of essays in Craig Bradley, Criminal Procedure: A Worldwide Study (1999).

For a more detailed exploration of these and other issues from the comparative perspective focused on German and US criminal law, see Dubber and Hörnle (n 9 ).

See Dubber (n 41 ), 113 ff, 131.   

See William T. Pizzi and Walter Perron, ‘Crime Victims in German Courtrooms: A Comparative Perspective on American Problems’, (1996) 32 Stanford Journal of International Law 37 ff.

See generally Markus D. Dubber, ‘The Victim in American Penal Law: A Systematic Overview’, (1999) 3 Buffalo Criminal LR 3 ff.

See generally Symposium, ‘Victims and the Criminal Law: American and German Perspectives’, (1999) 3 Buffalo Criminal LR 1 ff.

See generally Markus D. Dubber, Victims in the War on Crime: The Use and Abuse of Victims’ Rights (2002).

But see Dubber and Kelman (n 47 ), Ch 2 ; see generally Focus Feature, ‘Criminal Jurisdiction: Comparison, History, Theory’, (2013) 63 University of Toronto LJ 193–309.

See, e.g., 18 USC § 2332 (homicide and serious bodily injury).

See Uniform Code of Military Justice Art 2.

Poarch Band of Creek Indians Code § 4–1–2.

See, e.g., United States v Lara , 541 US 193 (2004).

StGB § 3, 5, 6, 7. For a recent attempt to elevate German discourse on jurisdiction, see Michael Pawlik, Strafe oder Gefahrenbekämpfung?: Die Prinzipien des deutschen Internationalen Strafrechts vor dem Forum der Straftheorie , [2006] Zeitschrift für Internationale Strafrechtsdogmatik 274; for an explicitly comparative analysis, see Markus D. Dubber, ‘Criminal Jurisdiction and Conceptions of Penality in Comparative Perspective’, 63 University of Toronto LJ 247 (2013).

The Belgian parliament revised the universal jurisdiction law in response to US pressure.

Model Penal Code § 1.02; see Dubber, Introduction (n 44 ), § 3.

See generally Dubber, ‘Promise’ (n 34 ), 1049 ff; Dubber, the Dual Penal State (n 2 ).

See Dubber and Hörnle (n 9 ), Ch 4 .B.

See People v Davis , 33 NY 2d 221 (1973); see generally Dubber (n 48 ).

Luis Jimenez de Asúa, Tratado de Derecho Penal (vol 1, 1964), 669. See generally L. A. Zaibert, ‘Philosophical Analysis and the Criminal Law,’ (2001) 4 Buffalo Crim LR 100 ff. For a careful comparative reading of the Model Code scheme, see Weigend (n 55 ), 657 ff.

Dubber, Introduction (n 44 ), 73–6.

See Markus D. Dubber, ‘The Comparative History and Theory of Corporate Criminal Liability’, (2013) 16 New Criminal LR 203 ff.

In this form, German complicity law has recently attracted attention among international criminal law scholars. See, e.g., Jens David Ohlin, ‘Co-Perpetration: German Dogmatik or German Invasion?’, in Carsten Stahn (ed), The Law and Practice of the International Criminal Court: A Critical Account of Challenges and Achievements (2015), 517 ff; see generally Dubber, The Dual Penal State (n 2 ) (extensive discussion of Tatherrschaft ).

The taboo may be weakening even in Germany. See, e.g., Michael Pawlik, ‘§ 14 Abs. 3 des Luftsicherheitsgesetzes: Ein Tabubruch?’, [2004] Juristenzeitung 1045 ff (legitimacy of statute authorizing the use of arms to intercept aircraft that threaten human lives); see generally Tatjana Hörnle, ‘Shooting Down a Hijacked Airplane: The German Discussion and Beyond’, [2011] Criminal Law and Philosophy 111 ff.

See Clark v Arizona , 548 US 735 (2006); Finger v State , 27 P 3d 66 (Nev 2001).

Compare StGB §§ 20 & 21 with Model Penal Code §§ 4.01 & 4.02.

cf Brian Foley, ‘Same Problem, Same Solution? The Treatment of the Voluntarily Intoxicated Offender in England and Germany’, (2001) Trinity College LR 119 ff; see generally Dubber and Hörnle (n 9 ), Ch 8 .D.

See Markus D. Dubber, ‘Theories of Crime and Punishment in German Criminal Law’, (2006) 53 AJCL 679 ff. The ‘discovery’ of the concept of Rechtsgut tends to be attributed to an early-nineteenth century article by J. M. F. Birnbaum, ‘Ueber das Erforderniß einer Rechtsverletzung zum Begriffe des Verbrechens, mit besonderer Rücksicht auf den Begriff der Ehrenkränkung’, in [1834] Archiv des Criminalrechts, Neue Folge 149 ff (English translation: ‘Concerning the Need for a Right Violation in the Concept of a Crime, having particular Regard to the Concept of an Affront to Honour’, in Dubber (ed), Foundational Texts (n 4 ) 407 ff.).

See Dubber, ‘Theories’ (n 94); Roland Hefendehl, Andrew von Hirsch, and Wolfgang Wohlers (eds), Die Rechtsgutstheorie: Legitimationsbasis des Strafrechts oder dogmatisches Glasperlenspiel? (2003).

See BVerfGE 120 at 224 (26 February 2008) (Incest Case).

Lawrence v Texas , 539 US 558 (2003) (no); but see Bowers v Hardwick , 478 US 186 (1986) (yes).

Stanley v Georgia , 394 US 557 (1969) (yes).

Washington v Glucksberg , 521 US 702 (1997) (no).

Stanislaw Pomorski, ‘Conspiracy and Criminal Organizations’, in The Nuremberg Trial and International Law (1990), 213, 218–19 (quoting Bradley F. Smith, Reaching Judgment at Nuremberg (1977), 51).

See generally Dubber, Introduction (n 44 ).

See Dubber, The Dual Penal State (n 2 ).

• About Oxford Academic
• Publish journals with us
• University press partners
• What we publish
• New features  
• Open access
• Institutional account management
• Rights and permissions
• Get help with access
• Accessibility
• Advertising
• Media enquiries
• Oxford University Press
• Oxford Languages
• University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

• Copyright © 2024 Oxford University Press
• Cookie settings
• Cookie policy
• Privacy policy
• Legal notice

This Feature Is Available To Subscribers Only

Sign In or Create an Account

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

All Areas of Interest

Area of Interest Comparative Law

Comparative legal inquiry permeates the Harvard curriculum, ranging from courses focused on other nations to the inclusion of comparative issues in courses on U.S. law to a robust co-curricular program. Its goals include acquainting students with the approaches that other societies take toward the resolution of challenging societal issues and facilitating understanding of the assumptions and choices that inform law in the United States.

From Harvard Law Today

Hls professors, william p. alford.

Jerome A. and Joan L. Cohen Professor of Law

Alan M. Dershowitz

Felix Frankfurter Professor of Law, Emeritus

Charles Donahue

Paul A. Freund Professor of Law

Susan H. Farbstein

Clinical Professor of Law

Noah R. Feldman

Felix Frankfurter Professor of Law

Idriss Fofana

Assistant Professor of Law

Mary Ann Glendon

Learned Hand Professor of Law, Emerita

Vicki C. Jackson

Laurence H. Tribe Professor of Constitutional Law

Reinier H. Kraakman

Ezra Ripley Thayer Professor of Law

Adriaan M. Lanni

Touroff-Glueck Professor of Law

Charles J. Ogletree

Jesse Climenko Professor of Law, Emeritus

Intisar A. Rabb

Professor of Law

Holger Spamann

Lawrence R. Grove Professor of Law

Nicholas Stephanopoulos

Kirkland & Ellis Professor of Law

Kristen A. Stilt

Mark tushnet.

William Nelson Cromwell Professor of Law, Emeritus

Roberto Mangabeira Unger

Roscoe Pound Professor of Law

Visiting Professors & Lecturers

Climenko Fellow and Lecturer on Law

Yas Banifatemi

Lecturer on Law

Mikhal Bar-Asher Siegal

Caroline Zelaznik Gruss and Joseph S. Gruss Visiting Associate Professor in Talmudic Civil Law

Jacques de Werra

Hieken Visiting Professor in Patent Law

Nancy Gertner

Senior Lecturer on Law

Havva Guney-Ruebenacker

Sheila s. jasanoff.

Harvard University Affiliated Professor

Daniel Kahn

Henry J. Steiner Visiting Professor in Human Rights

Aminta Ossom

Hassaan shahawy, daniel l. smail, alain laurent verbeke.

Visiting Professor of Law

Salma Waheedi

Alicia yamin, research programs and centers, animal law & policy program, center on the legal profession, east asian legal studies program, foundations of private law, human rights program, john m. olin center: law, economics and business, julis-rabinowitz program on jewish and israeli law, program in islamic law, program on international law and armed conflict, program on law and society in the muslim world, related courses, additional programs.

• International and Comparative Law Program of Study
• International Legal Studies

Modal Gallery

Gallery block modal gallery.

UCL Faculty of Laws

Comparative Constitutional Law (LAWS0361)

This module will introduce students to the comparative study of constitutions, constitutional rights, constitution-making and constitutional change.

The course aims to equip students with a solid understanding of the creation, contestation, and enforcement of constitutions. We will start with an examination of methodological questions such as why and what we compare and when do constitutional courts make recourse to comparative material. We will continue with a comparative exploration of institutional arrangements, models of rights protection, constitutional review mechanisms, and processes for constitutional reform. We will also consider the rise of authoritarianism and democratic backsliding and constitutional safeguards against them. The overall objective is to go beyond doctrine and draw out the thorniest questions in constitutional scholarship in practice today. 

Readings will cover both influential jurisdictions such as the US, the UK, France, Germany, India, and South Africa, and what are often considered jurisdictions at the periphery, from Eastern and Central Europe, Latin America, Africa and the Middle East. We will look at both liberal democratic constitutions and what have been termed ‘authoritarian' and ‘hybrid’ constitutional systems. 

Running themes throughout the course will include: the interplay between constitutional law and politics and between constitutional and international law, tensions between constitutionalism and democracy, constitutions as documents enshrining fundamental values versus entrenching political compromise, and constitutions as the basis for the empowerment versus the suppression of citizens. 

The weekly seminars are highly participatory. There will be occasional optional film screenings, as well as expert guest speakers coming from the practical world of constitution-building assistance.

Module Syllabus

Please note that this module may be subject to change. 

Topics covered will include: 

• Comparative constitutional law methodology 
• Constitution-making: experts, citizens, international actors 
• Comparing territorial structures: unitary, federal and mixed states; secession 
• The constitutionalisation of the executive  
• Models of constitutional rights entrenchment 
• Key constitutional rights battles (abortion, same-sex marriage, elections etc.) 
• Constitutions and their others: women, indigenous people, minority groups 
• Constitutional change: amendment, replacement, revolution 
• Constitutional enforcement and states of emergency 
• The constitutionalisation of new subjects and new spheres (e.g. the environment) 
• Authoritarian rule of law 
• Democratic backsliding and the erosion of liberal constitutionalism 

Recommended Materials

Module reading lists and other module materials will be provided via online module pages, once students have made their module selections upon enrolment. 

Preliminary Reading

Useful general references include: 

• Michel Rosenfeld and András Sajó, eds., The Oxford Handbook of Comparative Constitutional Law (OUP 2012) 
• Denis J. Galligan and Mila Versteeg, eds., Social and Political Foundations of Constitutions (CUP 2013) 
• Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (OUP 2014) 
• Erin F. Delaney and Rosalind Dixon, eds., Comparative Judicial Review (Edward Elgar 2018) 
• David Landau and ‎Hanna Lerner, eds., Comparative Constitution Making (Edward Elgar 2019) 
• Xenophon Contiades and ‎Alkmene Fotiadou, eds., Routledge Handbook of Comparative Constitutional Change (Routledge 2020) 
• David S. Law, Constitutionalism in Context (Cambridge University Press 2022) 

Key information

Find out more.

• Life at Laws
• Student Support
• Careers Support
• UCL Laws Open Days
• Register your interest

Please read the FAQs for graduate applicants and graduate offer holders . If you still need to contact UCL Admissions, you can submit an enquiry via the Admissions Contact Form on the page.

You can also contact the LLM admissions team, particularly for queries relating to scholarships:

Email:  [email protected]  Tel:  +44 (0)20 3108 8430

Unfortunately, the UCL Laws Graduate Office does not accept drop-in visitors. 

Summer School

Our Summer School programme, open to current students and graduates, provides opportunities to delve deep into learning about key legal concepts.

Explore our courses

Comparative Law

• 15 credits cr.
• Gå till denna sida på svenska webben

The course Comparative Law aims to provide students with knowledge of the use of comparative law methodology in research and practical legal life.

Comparative Law is given as an elective course within the framework of the exchange programmes at the Department of Law, Stockholm University. Swedish law students admitted by the department are also given access to the course.

Read more about exchange programmes at the Department of Law  

The course is divided into four blocks. The first block focuses on the overarching comparative law theories and methods. The second block addresses different national legal systems, namely Swedish, English, American and German. The third block will focus on the analysis of various legal issues from a comparative law perspective. The issues discussed will cover contract law, labour law, family law, criminal law, real estate law and international private law, among others. The fourth block consists of authoring a comparative law essay. The essay is to be presented orally. Students will also oppose another student’s essay both in writing and orally.

Course structure

The learning objectives, activities, and examination criteria for the course are outlined in the syllabus. Therefore, the syllabus serves as the foundational document dictating the course's content and structure.

To access the current syllabus, please navigate to the right-hand column and locate the section titled " Syllabus - Legal document ." Alternatively, if you are using a mobile device, you can find it towards the end of this page.

Teaching format

Instruction is primarily given in the form of seminars. Each student is to present and defend an essay, as well as act as opponent with respect to another student’s essay, in the last week of the course.

Examination is carried out through active participation at the mandatory seminars, the writing and presentation of the investigation, the opposition on another student's investigation, and through a seminar introduction.

• Schedule JU44BB Autumn 2024 Day-time 100%

Course reports

• Course report JU44BB AU 2023
• Course report JU44BB AU 2022
• Course report JU44BB AU 2021

More information

Learning platform.

During the course, registered students will receive additional course information on the Athena learning platform.

https://athena.itslearning.com/

The Department

Read more about education at the Department of Law at Stockholm University on our homepage.

Education - Department of Law  

Course contact:  [email protected]  Course coordinator:   Oskar Klingborn Course manager:  Filippo Valguarnera  

Know what you want to study?

What can I study?

Selected reading

Discover Stockholm and Sweden

As a student at Stockholm University you get the benefit of living in the Swedish capital.

Meet us online and around the world

Stockholm University arranges regular webinars and participates in educational fairs and events virtually and around the world to meet students and inform them about our study programmes. Meet us and ask what it's like to study with us!

Students of Stockholm University

Every year Stockholm University welcomes thousands of international students from all over the world. Each bringing their own backpack full of experiences, expectations and dreams. Each with their own story.

Our researchers. Your teachers

As a student at Stockholm University, you will have direct contact with leading researchers in your field and access to the most recent scientific findings. Our researchers. Your teachers. Meet a few of them here.

Hear from our alumni

Are you wondering what former students thought about your programme? Are you curious about what your education can lead to after graduation? Hear from our alumni!

Comparative Essay

How to Write a Comparative Essay – A Complete Guide

10 min read

People also read

Learn How to Write an Editorial on Any Topic

Best Tips on How to Avoid Plagiarism

How to Write a Movie Review - Guide & Examples

A Complete Guide on How to Write a Summary for Students

Write Opinion Essay Like a Pro: A Detailed Guide

Evaluation Essay - Definition, Examples, and Writing Tips

How to Write a Thematic Statement - Tips & Examples

How to Write a Bio - Quick Tips, Structure & Examples

How to Write a Synopsis – A Simple Format & Guide

Visual Analysis Essay - A Writing Guide with Format & Sample

List of Common Social Issues Around the World

Writing Character Analysis - Outline, Steps, and Examples

11 Common Types of Plagiarism Explained Through Examples

Article Review Writing: A Complete Step-by-Step Guide with Examples

A Detailed Guide on How to Write a Poem Step by Step

Detailed Guide on Appendix Writing: With Tips and Examples

Comparative essay is a common assignment for school and college students. Many students are not aware of the complexities of crafting a strong comparative essay. 

If you too are struggling with this, don't worry!

In this blog, you will get a complete writing guide for comparative essay writing. From structuring formats to creative topics, this guide has it all.

So, keep reading!

• 1. What is a Comparative Essay?
• 2. Comparative Essay Structure
• 3. How to Start a Comparative Essay?
• 4. How to Write a Comparative Essay?
• 5. Comparative Essay Examples
• 6. Comparative Essay Topics
• 7. Tips for Writing A Good Comparative Essay
• 8. Transition Words For Comparative Essays

What is a Comparative Essay?

A comparative essay is a type of essay in which an essay writer compares at least two or more items. The author compares two subjects with the same relation in terms of similarities and differences depending on the assignment.

The main purpose of the comparative essay is to:

• Highlight the similarities and differences in a systematic manner.
• Provide great clarity of the subject to the readers.
• Analyze two things and describe their advantages and drawbacks.

A comparative essay is also known as compare and contrast essay or a comparison essay. It analyzes two subjects by either comparing them, contrasting them, or both. The Venn diagram is the best tool for writing a paper about the comparison between two subjects.  

Moreover, a comparative analysis essay discusses the similarities and differences of themes, items, events, views, places, concepts, etc. For example, you can compare two different novels (e.g., The Adventures of Huckleberry Finn and The Red Badge of Courage).

However, a comparative essay is not limited to specific topics. It covers almost every topic or subject with some relation.

Comparative Essay Structure

A good comparative essay is based on how well you structure your essay. It helps the reader to understand your essay better. 

The structure is more important than what you write. This is because it is necessary to organize your essay so that the reader can easily go through the comparisons made in an essay.

The following are the two main methods in which you can organize your comparative essay.

Point-by-Point Method 

The point-by-point or alternating method provides a detailed overview of the items that you are comparing. In this method, organize items in terms of similarities and differences.

This method makes the writing phase easy for the writer to handle two completely different essay subjects. It is highly recommended where some depth and detail are required.

Below given is the structure of the point-by-point method. 

Block Method 

The block method is the easiest as compared to the point-by-point method. In this method, you divide the information in terms of parameters. It means that the first paragraph compares the first subject and all their items, then the second one compares the second, and so on.

However, make sure that you write the subject in the same order. This method is best for lengthy essays and complicated subjects.

Here is the structure of the block method. 

Therefore, keep these methods in mind and choose the one according to the chosen subject.

Mixed Paragraphs Method

In this method, one paragraph explains one aspect of the subject. As a writer, you will handle one point at a time and one by one. This method is quite beneficial as it allows you to give equal weightage to each subject and help the readers identify the point of comparison easily.

How to Start a Comparative Essay?

Here, we have gathered some steps that you should follow to start a well-written comparative essay.  

Choose a Topic

The foremost step in writing a comparative essay is to choose a suitable topic.

Choose a topic or theme that is interesting to write about and appeals to the reader. 

An interesting essay topic motivates the reader to know about the subject. Also, try to avoid complicated topics for your comparative essay. 

Develop a List of Similarities and Differences 

Create a list of similarities and differences between two subjects that you want to include in the essay. Moreover, this list helps you decide the basis of your comparison by constructing your initial plan. 

Evaluate the list and establish your argument and thesis statement .

Establish the Basis for Comparison 

The basis for comparison is the ground for you to compare the subjects. In most cases, it is assigned to you, so check your assignment or prompt.

Furthermore, the main goal of the comparison essay is to inform the reader of something interesting. It means that your subject must be unique to make your argument interesting.  

Do the Research 

In this step, you have to gather information for your subject. If your comparative essay is about social issues, historical events, or science-related topics, you must do in-depth research.    

However, make sure that you gather data from credible sources and cite them properly in the essay.

Create an Outline

An essay outline serves as a roadmap for your essay, organizing key elements into a structured format.

With your topic, list of comparisons, basis for comparison, and research in hand, the next step is to create a comprehensive outline. 

Here is a standard comparative essay outline:

How to Write a Comparative Essay?

Now that you have the basic information organized in an outline, you can get started on the writing process. 

Here are the essential parts of a comparative essay: 

Comparative Essay Introduction 

Start off by grabbing your reader's attention in the introduction . Use something catchy, like a quote, question, or interesting fact about your subjects. 

Then, give a quick background so your reader knows what's going on. 

The most important part is your thesis statement, where you state the main argument , the basis for comparison, and why the comparison is significant.

This is what a typical thesis statement for a comparative essay looks like:

Comparative Essay Body Paragraphs 

The body paragraphs are where you really get into the details of your subjects. Each paragraph should focus on one thing you're comparing.

Start by talking about the first point of comparison. Then, go on to the next points. Make sure to talk about two to three differences to give a good picture.

After that, switch gears and talk about the things they have in common. Just like you discussed three differences, try to cover three similarities. 

This way, your essay stays balanced and fair. This approach helps your reader understand both the ways your subjects are different and the ways they are similar. Keep it simple and clear for a strong essay.

Comparative Essay Conclusion

In your conclusion , bring together the key insights from your analysis to create a strong and impactful closing.

Consider the broader context or implications of the subjects' differences and similarities. What do these insights reveal about the broader themes or ideas you're exploring?

Discuss the broader implications of these findings and restate your thesis. Avoid introducing new information and end with a thought-provoking statement that leaves a lasting impression.

Below is the detailed comparative essay template format for you to understand better.

Comparative Essay Format

Comparative Essay Examples

Have a look at these comparative essay examples pdf to get an idea of the perfect essay.

Comparative Essay on Summer and Winter

Comparative Essay on Books vs. Movies

Comparative Essay Sample

Comparative Essay Thesis Example

Comparative Essay on Football vs Cricket

Comparative Essay on Pet and Wild Animals

Comparative Essay Topics

Comparative essay topics are not very difficult or complex. Check this list of essay topics and pick the one that you want to write about.

• How do education and employment compare?
• Living in a big city or staying in a village.
• The school principal or college dean.
• New Year vs. Christmas celebration.
• Dried Fruit vs. Fresh. Which is better?
• Similarities between philosophy and religion.
• British colonization and Spanish colonization.
• Nuclear power for peace or war?
• Bacteria or viruses.
• Fast food vs. homemade food.

Tips for Writing A Good Comparative Essay

Writing a compelling comparative essay requires thoughtful consideration and strategic planning. Here are some valuable tips to enhance the quality of your comparative essay:

• Clearly define what you're comparing, like themes or characters.
• Plan your essay structure using methods like point-by-point or block paragraphs.
• Craft an introduction that introduces subjects and states your purpose.
• Ensure an equal discussion of both similarities and differences.
• Use linking words for seamless transitions between paragraphs.
• Gather credible information for depth and authenticity.
• Use clear and simple language, avoiding unnecessary jargon.
• Dedicate each paragraph to a specific point of comparison.
• Summarize key points, restate the thesis, and emphasize significance.
• Thoroughly check for clarity, coherence, and correct any errors.

Transition Words For Comparative Essays

Transition words are crucial for guiding your reader through the comparative analysis. They help establish connections between ideas and ensure a smooth flow in your essay. 

Here are some transition words and phrases to improve the flow of your comparative essay:

Transition Words for Similarities

• Correspondingly
• In the same vein
• In like manner
• In a similar fashion
• In tandem with

Transition Words for Differences

• On the contrary
• In contrast
• Nevertheless
• In spite of
• Notwithstanding
• On the flip side
• In contradistinction

Check out this blog listing more transition words that you can use to enhance your essay’s coherence!

In conclusion, now that you have the important steps and helpful tips to write a good comparative essay, you can start working on your own essay. 

However, if you find it tough to begin, you can always hire our professional essay writing service . 

Our skilled writers can handle any type of essay or assignment you need. So, don't wait—place your order now and make your academic journey easier!

Frequently Asked Question

How long is a comparative essay.

A comparative essay is 4-5 pages long, but it depends on your chosen idea and topic.

How do you end a comparative essay?

Here are some tips that will help you to end the comparative essay.

• Restate the thesis statement
• Wrap up the entire essay
• Highlight the main points

Write Essay Within 60 Seconds!

Dr. Barbara is a highly experienced writer and author who holds a Ph.D. degree in public health from an Ivy League school. She has worked in the medical field for many years, conducting extensive research on various health topics. Her writing has been featured in several top-tier publications.

Paper Due? Why Suffer? That’s our Job!

Keep reading

Study record managers: refer to the Data Element Definitions if submitting registration or results information.

Search for terms

• Advanced Search
• See Studies by Topic
• See Studies on Map
• How to Search
• How to Use Search Results
• How to Find Results of Studies
• How to Read a Study Record

• Learn About Studies
• Other Sites About Studies
• Glossary of Common Site Terms

• Submit Studies to ClinicalTrials.gov PRS
• Why Should I Register and Submit Results?
• FDAAA 801 and the Final Rule
• How to Apply for a PRS Account
• How to Register Your Study
• How to Edit Your Study Record
• How to Submit Your Results
• Frequently Asked Questions
• Support Materials
• Training Materials

• Selected Publications
• Clinical Alerts and Advisories
• Trends, Charts, and Maps
• Downloading Content for Analysis

• ClinicalTrials.gov Background
• About the Results Database
• History, Policies, and Laws
• ClinicalTrials.gov Modernization
• Media/Press Resources
• Linking to This Site
• Terms and Conditions
• Search Results
• Study Record Detail

An Open Comparative Study of the Effectiveness and Incomparable Study of the Immunogenicity and Safety of the Vaccine (CoviVac) for Adults Aged 60 Years and Older

• Study Details
• Tabular View
• No Results Posted

Inclusion Criteria:

Volunteers must meet the following inclusion criteria:

Type of participants

• Healthy volunteers or volunteers with a history of stable diseases that do not meet any of the criteria for non-inclusion in the study.

Other inclusion criteria

• Written informed consent of volunteers to participate in a clinical trial
• Volunteers who are able to fulfill the Protocol requirements (i.e., fill out a self-observation Diary, come to control visits).

Exclusion Criteria:

SARS-CoV-2 infection • A case of established COVID-19 disease confirmed by PCR and/or ELISA in the last 6 months.

Diseases or medical conditions

• Serious post-vaccination reaction (temperature above 40 C, hyperemia or edema more than 8 cm in diameter) or complication (collapse or shock-like condition that developed within 48 hours after vaccination; convulsions, accompanied or not accompanied by a feverish state) to any previous vaccination.
• Burdened allergic history (anaphylactic shock, Quincke's edema, polymorphic exudative eczema, serum sickness in the anamnesis, hypersensitivity or allergic reactions to the introduction of any vaccines in the anamnesis, known allergic reactions to vaccine components, etc.).
• Guillain-Barre syndrome (acute polyradiculitis) in the anamnesis.
• The axillary temperature at the time of vaccination is more than 37.0 ° C.
• Acute infectious diseases (recovery earlier than 4 weeks before vaccination) according to anamnesis.
• Donation of blood or plasma (in the amount of 450 ml or more) less than 2 months before inclusion in the study.
• Severe and/or uncontrolled diseases of the cardiovascular, bronchopulmonary, neuroendocrine systems, gastrointestinal tract, liver, kidneys, hematopoietic, immune systems.
• Is registered at the dispensary for tuberculosis, leukemia, oncological diseases, autoimmune diseases.
• Any confirmed or suspected immunosuppressive or immunodeficiency condition in the anamnesis.
• Splenectomy in the anamnesis.
• Neutropenia (decrease in the absolute number of neutrophils less than 1000/mm3), agranulocytosis, significant blood loss, severe anemia (hemoglobin less than 80 g/l) according to anamnesis.
• Anorexia according to anamnesis.

Prior or concomitant therapy

• Vaccination with any vaccine carried out within 30 days before vaccination / the first dose of the studied vaccine or planned administration within 30 days after vaccination / the last dose of the studied vaccine.
• Prior vaccination with an experimental or registered vaccine that may affect the interpretation of the study data (any coronavirus or SARS vaccines).
• Long-term use (more than 14 days) of immunosuppressants or other immunomodulatory drugs (immunoregulatory peptides, cytokines, interferons, immune system effector proteins (immunoglobulins), interferon inducers (cycloferon) during the six months preceding the study, according to anamnesis.
• Treatment with systemic glucocorticosteroids (≥ 20 mg of prednisone, or an analog, for more than 15 days during the last month).
• Volunteers who received immunoglobulin preparations or blood transfusion during the last 3 months prior to the start of the study according to anamnesis.

Other non-inclusion criteria

• Participation in any other clinical trial within the last 3 months.

Exclusion criteria:

• Withdrawal of Informed consent by a volunteer;
• The volunteer was included in violation of the inclusion/non-inclusion criteria of the Protocol;
• Any condition of a volunteer that requires, in the reasoned opinion of a medical researcher, the withdrawal of a volunteer from the study;
• Taking unauthorized medications (see section 6.2);
• The volunteer refuses to cooperate or is undisciplined (for example, failure to attend a scheduled visit without warning the researcher and/or loss of communication with the volunteer), or dropped out of observation;
• For administrative reasons (termination of the study by the Sponsor or regulatory authorities), as well as in case of gross violations of the Protocol that may affect the results of the study.
• For Patients and Families
• For Researchers
• For Study Record Managers
• Customer Support
• Accessibility
• Viewers and Players
• Freedom of Information Act
• HHS Vulnerability Disclosure
• U.S. National Library of Medicine
• U.S. National Institutes of Health
• U.S. Department of Health and Human Services

Symposium to Explore Significance of 18th-Century Philosopher’s Essay on Perpetual Peace in Today’s World

A one-day symposium April 19, supported by the Central New York Humanities Corridor, will explore how philosopher Immanuel Kant’s 1795 essay “Toward Perpetual Peace” can help lay the foundation for lasting peace.

Philosopher Immanuel Kant’s 1795 essay “Toward Perpetual Peace” still holds significant relevance even now more than two centuries after it was first published. With ongoing wars across the globe, securing peace remains elusive.

An upcoming one-day symposium will explore how Kant’s principles can help lay the foundation for lasting peace. The symposium is supported by the Central New York Humanities Corridor , whose administrative home is based at the Syracuse University Humanities Center . The event, “ The Contemporary Relevance of Perpetual Peace, ” will be held Friday, April 19, at Cornell University, with a symposium and workshop on one of Kant’s most widely read essays, Zum ewigen Frieden (“Toward Perpetual Peace”).

The symposium, as part of the Perpetual Peace Project , is organized by Gregg Lambert , Dean’s Professor of the Humanities in the College of Arts and Sciences and a founder and co-director of the Perpetual Peace Project, and Peter Gilgen , director of the Institute for German Cultural Studies and associate professor in the Department of German Studies and Graduate Field of Comparative Literature at Cornell University.

The Perpetual Peace Project, an ongoing international forum on the concept of peace, began as an initiative of the Humanities Center in 2008.

Gregg Lambert

“The purpose of the project is to raise awareness and attention to the fact that war is not one regional issue,” Lambert says. “It is a global issue, and the number of wars only seems to increase each year.”

Open to the public, Friday’s symposium, which also is a celebration of Kant’s 300th birthday, will begin with three individual papers that examine different aspects of Kant’s treatise and its contemporary relevance.

“Kant’s popular essay was reviewed and cited as an inspiration by numerous thinkers from the start,” Gilgen says. “Anyone thinking about peace and what it means and implies had/has to take Kant’s profound remarks into account.”

The treatise served as an inspiration for the League of Nations, the first worldwide intergovernmental organization, founded in 1920, as well as its successor organization, the United Nations, in 1945.

“At the symposium, we hope to draw on a wide audience interested in Kant’s political philosophy as well as the theory and practice of peace—a topic that could not be more timely in light of the many ongoing conflicts in different parts of the world,” Gilgen says.

Peter Gilgen

The second half of the event is dedicated to a workshop on the Perpetual Peace Project.

Lambert, who is also founding director of the Syracuse University Humanities Center in the College of Arts and Sciences, and Adam Nocek , associate professor in the School of Arts, Media and Engineering, Arizona State University, and co-director of the Perpetual Peace Project, will present the workshop, which will launch the Perpetual Peace Academy. The academy will feature a curriculum created by faculty from all over the world, contributing designs of courses that they would teach in a virtual setting.

“We are really trying to engage students on all campuses and other participants in talking about the Perpetual Peace Project, and then we’re going to inaugurate the Perpetual Peace Academy,” Lambert says. “The academy will be driven by international faculty who want to contribute their ideas from across the disciplines.”

Along with his presence at the symposium, Nocek also joined Lambert in Lambert’s undergraduate seminar, Problems in Marxism: Perpetual Peace , Tuesday for a discussion with students, and other participants, about the Perpetual Peace Academy. Nocek’s time at the symposium and in the seminar is supported as part of Syracuse University’s Distinguished Visiting Collaborator (DVC) initiative of the CNY Humanities Corridor.

Vivian May, director of the SU Humanities Center and lead director of the CNY Humanities Corridor, says the scholar mini-residency bridges the Syracuse University campus with another corridor campus, a model that deepens collaborative networks.

“In conversation with Lambert, Gilgen, and a range of other interlocutors over the course of his visit,  Adam Nocek , founding director of the Center for Philosophical Technologies at Arizona State University, will discuss the importance of philosopher Immanuel Kant’s yet-to-be-realized concept of ‘perpetual peace,’” May says. “I encourage everyone who can to engage with this year’s DVC events and activities, as they offer an important opportunity for us to step back, refuse broad acceptance of violence and devastation, and actively pursue planetary peace—a peace that centers climate justice and holistic thriving.”

Since its start in 2008, the Perpetual Peace Project, structured around Kant’s six preliminary articles, has gone through three phases, with the first at Syracuse University and the United Nations in New York. This first phase included a co-edited and re-issue of a new book publication of Kant’s “Perpetual Peace” and several different events.

In partnership with the Humanities Center and the Centre for Humanities at Utrecht University in the Netherlands, the second phase from 2013-15 included a series of events commemorating the Treaty of Utrecht and a documentary film.

This latest phase has reinaugurated the project following the invasion of Ukraine by Russia in 2022. Lambert partnered with Nocek to kick off this latest phase, including a launch event conference at the University of Warsaw, Poland, followed by conferences at the Institute of Philosophy of the Czech Academy and the Jan Evangelista Purkyně University in Ústí nad Labem, both in the Czech Republic.

Friday’s symposium features a presentation by Gilgen, moderated by Elke Siegel, German studies, Cornell; a presentation by Patchen Markell, associate professor, government, Cornell, and moderated by Karin Nisenbaum , Renée Crown Professor in the Humanities and assistant professor, College of Arts and Sciences, Syracuse University; and a presentation by Neil Saccamano, associate professor, literatures in English, Cornell, and moderated by Verena Erlenbusch-Anderson , associate professor, philosophy, College of Arts and Sciences, Syracuse University.

For this latest phase, Lambert edited a new version of Kant’s original treatise, which has been published and is available for event participants.

Kathleen Haley

• Faculty and Staff: Join Your Colleagues at the Syracuse WorkForce Run/Walk/Roll for Food, Fitness and Fun Friday, April 19, 2024, By News Staff
• Behind the Scenes Heroes: The Impactful Role of Public Safety Dispatchers Friday, April 19, 2024, By Alex Haessig
• ‘The Droll (Or, a Stage-Play about the END of Theatre)’ Closes Out Department of Drama 2023-24 Season Thursday, April 18, 2024, By Joanna Penalva
• Auxiliary Services Welcomes New Executive Chef for Campus Dining Thursday, April 18, 2024, By Abby Haessig
• Campus Dining and Stores to Become Fully Cashless in Fall 2024 Thursday, April 18, 2024, By Abby Haessig

More In Media, Law & Policy

College of law to add housing clinic for fall 2024.

The College of Law is adding a Housing Clinic to its clinical legal education offerings beginning in the Fall 2024 semester. The Housing Clinic will operate in partnership with Legal Services of Central New York and the Legal Aid Society…

The Power of Curiosity Fuels Award-Winning News Anchor Mary Calvi ’90

Mary Calvi’s early path to become an award-winning news reporter and anchor is a familiar one: Calvi ’90 fell in love with journalism at a young age, cultivated an intense curiosity and became determined to cover the news. But it…

Pollster Joins Maxwell School Panel to Explore Super Tuesday and Beyond

The 2024 presidential race between frontrunners President Joe Biden and former President Donald Trump is the “highest intensity, lowest interest” race Maxwell alumnus John Zogby G’74 said he has seen in his 40-plus years of leading national public opinion polls….

Data Journalism Project Launches, Focuses on Impact of Police Vehicle Accidents in New York

Police vehicle accidents and the impact such crashes have had on communities across New York State are the focus of a new data journalism project involving Newhouse School students working in partnership with reporters from the USA Today Network and Central Current….

IDJC Receives Neo4j Research Grant to Track 2024 Campaign Misinformation

The Institute for Democracy, Journalism and Citizenship (IDJC) has been awarded a $250,000 research grant from Neo4j and use of the company’s graph database technology as part of an initiative to identify misinformation trends in the U.S. presidential election and…

Subscribe to SU Today

If you need help with your subscription, contact [email protected] .

Connect With Us

For the media.

Comparative investigations of aftersintering of UO 2 fuel pellets

• Theory and Processes of Formation and Sintering of Powdered Materials
• Published: 06 May 2010
• Volume 51 , pages 173–176, ( 2010 )

Cite this article

• V. V. Basov 1  

23 Accesses

Explore all metrics

The basic parameters of comparative tests of UO 2 fuel pellets produced by the technology of powder metallurgy for aftersinterability using their repeated thermal treatment (aftersintering) in different gas media, namely, with and without humidification, are presented. The results of an evaluation of the level of aftersinterability of these pellets by different procedures is presented, they are analyzed, and a substantiation of the expediency of using this operation manual for evaluating afersintering without the humidification of the gas medium developed at the OAO Machine Building Works (MSZ), Elektrostal’, Moscow oblast, is presented.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Price includes VAT (Russian Federation)

Instant access to the full article PDF.

Rent this article via DeepDyve

Institutional subscriptions

Similar content being viewed by others

Fuel pellets based on uranium dioxide and alloyed with nanodispersed additives of Al(OH)3 and TiO2

V. S. Panov, V. Yu. Lopatin, … V. V. Martynov

Effects of Dual Oxidizers on the Properties of Composite Solid Rocket Propellants

Development Background and Research Progress of UN-U3Si2 Composite Fuel

An Acceptable Model and Related Statistical Methods for the Analysis of Fuel Densification , US Nuclear Regulatory Commission, Regulatory Guide 1.126.1978.

Freshley, M.D., Brite, D.M., Daniel, I.L., and Hart, P.E., J. Nucl. Mater , 1976, vol. 62, pp. 138–166.

Article   CAS   ADS   Google Scholar  

Radford, K. and Pope, I., J. Nucl. Mater , 1977, vol. 64, pp. 289–299.

Radford, K., et al., US Patent 4430276, 1984.

Basov, V.V., Metodika provedeniya ispytanii tabletok is dioksida urana na “dospekaemost’ “ (Procedure for Performance of the Tests of the Pellets made of Uranium Dioxide for Aftersinterability), Electrostal’: PO MSZ, 1994.

Google Scholar  

Bakhteev, A.N., Opredelenie termicheskoi stabil’nosti geometricheskikh razmerov toplivnykh tabletok tipa “V” i “R”: Metodika vypolneniya izmerenii (Determination of Thermal Stability of Geometric Sizes for Fuel Pellets of Types “V” and “R”: Procedure of Carrying out the Measurements), Moscow: VNIINM, 1992.

Basov, V.V., Opredelenie kharacteristik termicheskoi stabil’nosti toplivnykh tabletok tipov “R”, “R-E”, “V”: Metodika (tekhnologicheskaya instruktsiya) (Determination of Characteristics of Thermal Stability of Fuel Pellets of Types “R”, “R-E”, and “V”: Procedure (Technological Instruction), Electrostal’: OAO MSZ, 1999.

Kotel’nikov, R.B., Bashlykov, S.N., Kashtanov, A.I., et al., Vysokotemperaturnoe yadernoe toplivo (HighTemperature Nuclear Fuel), Moscow: Metallurgiya, 1978.

Download references

Author information

Authors and affiliations.

OAO Machine Building Works, ul. K. Marksa 12, Elektrostal’, Moscow oblast, 144001, Russia

V. V. Basov

You can also search for this author in PubMed   Google Scholar

Additional information

Original Russian Text © V.V. Basov, 2009, published in Izvestiya VUZ. Poroshkovaya Metallurgiya i Funktsional’nye Pokrytiya, 2009, No. 3, pp. 27–30.

About this article

Basov, V.V. Comparative investigations of aftersintering of UO 2 fuel pellets. Russ. J. Non-ferrous Metals 51 , 173–176 (2010). https://doi.org/10.3103/S1067821210020185

Download citation

Published : 06 May 2010

Issue Date : April 2010

DOI : https://doi.org/10.3103/S1067821210020185

Share this article

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• fuel pellets
• model of fuel compaction
• repeated thermal treatment
• aftersintering
• aftersinterability
• procedure of carrying out aftersintering
• aftersintering installation
• stoichiometric composition
• isothermal sintering
• thermal shrinkage
• Find a journal
• Publish with us
• Track your research