Example: In contract interpretation it looks like England, France and Germanyare taking rather diverging positions as to what determines the meaning of thecontract. In England it is (only) the text of the agreement that counts, in Francethe subjective will of the contracting parties, and in Germany an ‘objectivated’will (what each party could reasonably have understood the intention of the othercontracting party was). A historical research, however, reveals that the (French)subjective will theory was dominant in Germany in the second half of nineteenthcentury and obtained a central position in English law in about the same period,whilst a more objective approach to interpretation became popular among Frenchlawyers by the end of eighteenth century. Actually, each of those approaches tocontract law happens to have held a strong position in each of those countriesat some time in history. It is mainly a matter of historical coincidence, which‘explains’ the differences among the compared legal systems in a more recentpast

Actually, the historical method is just one part of the ‘law-in-context method’,the context being here the historical origins of the present-day laws, which arecompared. A specific feature of this historical approach is that its use cannot beavoided in any comparative research. Fully understanding the law as it functionstoday in some society, is only possible when one knows where it comes from andwhy it is as it is today. It is not accidental that also among legal historians ‘com-parative legal history’ has become quite popular over the last decade or so

Putting law in context aims at understanding the law, as a foreigner to that legalsystem and, hence, explaining why the law is as it is. Inevitably, this implies empiri-cal observation. This may lead to general explanatory propositions, as emphasizedby John Henry Merryman, such as ‘developed legal systems contain proceduresfor controlling administrative legality’ (Merryman 1999). These are hypothesesabout more universal characteristics of (sets of) legal systems. They should andcan be tested against empirical data

n his law-in-context approach, Rodolfo Sacco has been focusingon the ‘legal formants’, on what has made the law as it is. In this approach it isnotably the legal context which seems to be most important: constitutional andlegislative rules, case law, and legal doctrine, but also ‘implied patterns’ and otherhidden elements, such as world views, influencing the way law is interpreted andhandled. He calls them ‘cryptotypes’ (Sacco 1991, p. 384-386): ‘Some cryptotypesare more specific, others more general. The more general they are, the harderthey are to identify. In extreme cases they may form the conceptual frameworkfor the whole system’ (Sacco 1991, p. 386). This ‘conceptual framework’, whichI have called the ‘paradigmatical framework’ (Van Hoecke & Warrington 1998,p. 513-520) indeed plays a decisive role in the way law is perceived, interpretedand applie

There is a whole range of possible law-in-context methods of research. One mayjust point to some generally known context element, such as the liberal economicworld view underlying the European Union; one may use data from historical,sociological, anthropological, psychological, etc. research, or even carry out suchresearch oneself; one may set up a large interdisciplinary comparative project inwhich several non-legal disciplines are brought together. Much will depend on thefocus of the research and on the available knowledge with the involved research-ers, time and financial means when choosing the type and size of the law-in-con-text approach.

The functional method refers already by definitionto a context: which societal problem is solved with what kind of legal construc-tion? If a society wants its citizens to act responsibly and carefully, so as to avoidto create damages to others, it may use tort law, contract law, statutory obliga-tions, ‘subjective’ or ‘objective’ liability, accept ‘pure economic loss’ or not, etc.In different legal systems and situations legislators (or judges) may have chosendiverging means to reach such an end. In order to guarantee the payment of dam-ages they may have introduced compulsory insurance or other ways that shouldlead to a balanced redistributive justice, as conceived in the world view of (themajority in) that society. Hence, the functional method is at least to some extentincluding a law-in-context method

All legal scholars will agree that comparative research cannot be limited to pureblack-letter comparison of legal rules, concepts or systems. Even domestic legaldoctrine will at least take into account the way the law works in practice, as faras it transpires from judicial decisions. On the other hand, law-in-context as amethod cannot be isolated from the other methods. They are complementary andinterdependent for an adequate understanding of the law.

The most ambitious attempt to determine the ‘legal grammar’ of legal systemsin view of their analytical and structural comparison is to be found in the workof Leopold Pospisil (1971). As an anthropologist of law, he tried to work out amodel that could be used for cross-cultural comparison, valid for both primitivesocieties and developed modern legal systems. Be

A thorough analytical approach may, eventually, offer in its turn building blocksfor a structural comparison of legal systems.In 1973, André-Jean Arnaud published his Essai d’analyse structurale du Code civilfrançais. In this book, Arnaud aimed at ‘decoding’ the Code Napoléon, at draw-ing its ‘eucledian geometry’. As regards, for instance, the law of obligations, hediscerns ‘jural opposites’, such as voluntary/involuntary, action based on the law(legislation) or on an act (e.g., a contract), a duty to give or to do (including not todo), a duty to give a thing or to give money, equilibrium or not, reciprocity or not,etc. (Arnaud 1973, p. 94-125). When revealing the deep structure of the (French)law of obligations, he finds a taxonomy with, as a grand total, 32 possible or evenimaginable relations (Arnaud 1973, p. 122).18 Arnaud concludes that his oppo-sites do not exactly correspond to the ‘official’ opposites, as used in the Code (forexample: synallagmatic/unilateral, aleatory/commutative), but that they offer aconceptual framework which is fundamentally valid for the law of (civil) obliga-tions in any legal system (Arnaud 1973, p. 121). Whether this is correct has stillto be checked, but at least it has the advantage of offering a structure built on thebasis of an analytical research in one legal system with, as a working hypothesis,its validity for any legal system. If this were true, even only partially, this mightbe an important building block for the methodology of comparative law, as it isnot just offering concepts, but a whole structure covering a whole field of law, akind of Table of Mendeleev for the law of obligation

The above mentioned examples also point to the conclusion that it is not possibleto disconnect concepts from the rules of the legal system to which they belong.The content of a legal concept is defined by the actual rules governing the field cov-ered by the concept, within a particular legal system at a specific moment of time.However, sometimes these are minor differences, and some common core may bedetected, with concepts such as ‘will’, ‘ownership’, ‘state’, etc. For this reason, ÅkeFrändberg made a distinction between concepts that are ‘system-dependent’ andconcepts that are (relatively) ‘system-independent’ (Frändberg 1987, p. 88-91).He proposed to work with ‘ideal types’ of such concepts.17

According to them, such a set of basic concepts should allow for correctrepresentations of the contents of private law and render it comprehensive andnon-redundant (Brouwer & Hage 2007, p. 7). Characteristic of a basic concept is,moreover, that it cannot be specified in terms of other, more elementary concepts(Brouwer & Hage 2007, p. 12). For Brouwer and Hage there are only two basic legalconcepts in private law: ‘duty’ and ‘competence’ (p. 18ff)

Here, we are mainly interested in the analytical force of such a distinction for com-parative law. Many legal concepts, in all legal systems, contain a bundle of ‘rights’of a different kind. ‘Property’, for instance, includes a claim (of non-interference),a liberty (to use) and a power (to transfer the property rights partly or fully). Bylooking at this deeper level we may better distinguish differences and common-alities between legal systems as to apparently similar or different concepts (e.g.,‘ownership’ of land vs ‘fee simple absolute in possession’, ‘easement’ vs ‘servitude’,‘mortgage’ vs ‘hypothèque’) used in each legal language. A broad concept such as‘trust’ in the Anglo-Saxon tradition is unknown in Continental Europe.16 How-ever, upon a closer look, it appears that, depending on the context, rather similarconstructions may sometimes be discovered and clear differences at other times(e.g., the power of the creditor in some cases to seize money directly with a thirdperson, as if it were his property (‘imposed trust’), which is impossible on theContinent). Only at the deeper ‘Hohfeldian’ level, adequate comparison betweenthe ‘trust’ and continental legal concepts and constructions becomes possible

Structural analyses may be made in many different ways, on the basis of a largevariety of distinctions and criteria. At the most basic level one could actuallyargue that all legal systems structurally have a common core, which is linked tothe definition of law as an identifiable system in any society. One such basic dis-tinction typical for all legal systems is the presence of (primary) rules of behav-iour and, in addition, secondary rules that govern the coming into being and theapplication of those primary rules (Hart 1961, p. 77-96). Joseph Raz has arguedthat, at the level of the secondary rules, there is some minimum content which iscommon to all legal systems:‘The minimum content and the minimum complexity of all legal systems,together with the principles of individuation, determine the necessary inter-nal relations existing in every legal system, that is the internal structurewhich is necessarily common to all legal systems’ (Raz 1980, p. 141)

Also, the traditional ‘legal families’ classifications assume that one specific cri-terion or structure may be considered decisive for classifying the totality of eachlegal system into one and the same family. However, as all these classificationsare based on private law only, it is obvious that a public law classification maylead to quite different results, again depending on the criteria used (kingdom orrepublic, federal or centralized state, direct elections of the key governing bodiesor not, states with or without a constitutional court, degree of respect of humanrights, etc.).

Example: assume one wants to compare land law worldwide and to try to classifythem into ‘legal families’. The obvious starting point will be to follow the tradi-tional distinction between the ‘Anglo-Saxon’ and the ‘Romano-Germanic’ legalfamilies. However, one may prefer to start from the distinction between publicor rather private law governing the matter: in the so-called ‘socialist’ or ‘commu-nist’ regimes in Eastern Europe during several decades in the twentieth centurydisposing of means of production (ownership) was a matter of public law, whereasin most other countries it was a matter of private law (mainly ownership or rent).From another point of view, one might consider that a basic distinction is the onewhere the state owns all the land and citizens have more limited rights than fullownership, even if they may be the proprietor of the house they have built on it.When using this criterion, it would bring together countries such as the UnitedKingdom (‘The Queen owns all land’), the Democratic Republic of Congo (citizensmay obtain an ‘eternal’ concession on the land, companies and foreigners only aconcession for 25 years), and the People’s Republic of China (the state owns allland, but not necessarily the buildings built on it). Nevertheless the legal systemsof those countries wouldn’t be considered to belong to one and the same legalfamily, when looked at from almost any other perspective. However, there is no‘objective’ reason why this criterion would be less relevant compared to other cri-teria.

When elaborating classifications of ‘legal families’, a structural approach hasbeen underlying them. Differences between legal systems at the level of concreterules become irrelevant if they share enough structural commonalities, such asRoman law principles and concepts in private law, to classify them as membersof the same ‘legal family’, as opposed to other legal systems and families whichdo not share those commonalities

Functionalism typically applies at the level of micro-comparison. From a broaderperspective a more structural analysis of (parts of) legal systems may be used.When discussing this approach in social sciences in general, but presenting itas an alternative to the functional method in comparative law, Geoffrey Samuelnotes:‘This is a grille de lecture whereby the observer focuses on the structures hid-den within the phenomenon being observed. These structures can be loose inthe way they interrelate (for example plot structures in literature) or they canbe a collection of elements that form a system, this latter notion being char-acterised by the creative interaction of the elements within a totality that canbe identified as having frontiers and thus being independent’ (Samuel 2014,p. 81-82).

What makes functionalism easier than the other ‘methods’ listed, is that itrequires a less thorough analysis of the broader cultural context, if any, and,hence, is more accessible to the average legal researcher. It reduces the complexityof comparing legal systems in a very attractive way for most researchersThe price paid for it is that the explanatory force of research using the functionalmethod is more reduced and that more creative work can be done, e.g., in compar-ative legal history, or using the law-in-context method

In its most common understanding, the functional method doesn’t compare pri-marily rules, but solutions to practical problems with conflicting interests. It istrue that there are relatively universal human attitudes to certain situations,such as taking care of children, respecting property rights, executing contractualobligations, compensating in one way or another damages caused by one’s wrong-ful conduct, and so on. Hence, practical solutions to similar problems in thoseareas in different legal systems will often more converge than the legal roads usedto reach those results.

ll societies have some form of ‘law’which helps to solve those problems. Legal concept, legal rules and legal proce-dures may sometimes rather diverge, but still the solutions given to some prob-lems may be similar or even identical. In other words, the legal solution may bethe same, notwithstanding the diverging roads used to reach that solution. Thefunctional method is looking for such ‘functional equivalents’ at the level of thesolutions

The idea behind functionalism is to look at theway practical problems of solving conflicts of interest are dealt with in differentsocieties according to different legal systems. This allows us to perceive thoseproblems (largely) independently from the doctrinal framework of each of thecompared legal systems (Husa 2011, p. 221-222).

ndeed, ‘functionalism’ is used in quite diverging meanings, serving rather dif-ferent goals: understanding law, comparing (tertium comparationis), focusing onsimilarities (praesumptio similitudinis), building a system (of ‘legal families’, forinstance), determining the ‘better law’, unifying law, critical appraisal of the legalorders (Michaels 2006, p. 364-380). This variety of ‘functional methods’ points tothe importance of the research aim and research question for choosing an appro-priate comparative method. B

Following Zweigert and Kötz and their popular introductory book on comparativelaw, it is often taught at universities that ‘the’ method of comparative law is the‘functional method’, optimistically supported by the alleged conclusion that rulesand concepts may be different, but that most legal systems will eventually solvelegal problems in a similar way.12Apart from the conclusion that both authors never seem to have elaborated, oreven applied, this ‘method’ themselves, the ‘functional method’ and its under-lying ‘praesumptio similitudinis’ have increasingly been criticized in recent years.Ralf Michaels, summarises his critical analysis as follows:‘In short, “the functional method” is a triple misnomer. First, there is notone (“the”) functional method, but many. Second, not all allegedly functionalmethods are “functional” at all. Third, some projects claiming adherence toit do not even follow any recognizable “method”’ (Michaels 2006, p. 342)

Following Berthelot, Geoffrey Samuel has distinguished six different ‘schemes ofintelligibility’: causal, functional, structural, hermeneutical, actional and dialec-tical. They are, according to Berthelot and Samuel, to be identified as separateepistemological readings in that not one of the six can be reduced, in terms of itsfundamental logical relations, to one of the others

On the basis of these writings,we may distinguish six different methods for comparative research: the func-tional method, the structural method, the analytical method, the law-in-contextmethod, the historical method and the common-core method. Probably they con-stitute together the whole toolbox for comparative research

Sometimes ‘comparing’ is considered to be a ‘method’ in its own right and called‘the comparative method’ without further explanation or concrete guidelines.The only ‘method’ proposed in comparative literature, which goes one step fur-ther, is the so-called ‘functional method’. It offers one concrete guideline in thatit suggests to focus on (common) legal problems and legal solutions in the com-pared legal systems, rather than on the (diverging) rules and doctrinal frame-works.

Comparing case law (and legislation) will require some knowledge of the histori-cal and socio-economic context that transpires from the available sources. Whencomparing neighbouring countries, the researcher may have a general idea of his-torical and/or socio-economic similarities and differences. For differences, somebetter insight into that context will be required. Also, focusing on practical solu-tions to legal problems should not dissociate the legal solutions from their doctri-nal context, as some solutions may be accidentally similar, which may hide moreimportant differences at the level of the concepts used and the systemic buildingof that area of the law

elevant legislation and(published) case law may be found relatively easily. In the first place, in doctri-nal books and articles (much less in Italy, however, where legislation is often dis-cussed without direct references to case law) and, for more recent months andyears, through electronic databases. But what to do with the context of the law?Occasionally, some explanations may be found in doctrinal legal writings, butuntil now this has been rather exceptional. Sometimes it was explained widely inthe international press, such as the financial crisis as the context and explanationfor some domestic and European changes in regulations of the financial sector.Sometimes, the researcher may discover historical, sociological, and/or economicliterature on her topic for a country included in the comparison, but that is notobvious either.

In the nineteenth century, associations and journals were founded on ‘compara-tive legislation’. At that time, there was a focus on comparing rules in differentsocieties. 9 Later on, more attention was paid to judicial decisions and the waylegal problems were solved in practice.10 Meanwhile, many authors on compara-tive law emphasize also the importance of taking into account the socio-economicand historical context of the law when carrying out comparative legal research.Where has the comparative researcher to look for in foreign legal systems: leg-islation, and/or case law and/or their entire context? R

In practice, when choosing national legal systems to compare with,most (individual) researchers will make a choice on the basis of their knowledgeof languages, which explains why most comparative research in the Anglo-Saxonworld is focusing on comparing common-law countries that still use English astheir (main) official language.7 This makes comparative research in most areas o

When one tries to improve one’s own legal system, be it as a legislator or as ascholar, it has become obvious to look at the other side of the borders. However,importing rules and solutions from abroad may not work because of a differencein context. Hence, a more thorough contextual approach may be required.One may also want to inquire to what extent a legal evolution in one’s own coun-try finds parallel developments in other countries. A paramount example is thedevelopments in family law, mainly in Europe, over the last half century (see e.g.,Antokolskaja 2007; Boele-Woelki, Dethloff & Gephart 2014)

Patrick Glenn has answered this question under the heading‘Aims of Comparative Law’. 5 He lists (a) comparative law as an instrument of learn-ing and knowledge 6 (information on the law elsewhere and a better understand-ing thereof), (b) comparative law as an instrument of evolutionary and taxonomicscience (common evolutions, diachronic changes, legal families), (c) contributingto one’s own legal system (understanding it better, including the resistance of itstraditions, improving it, using it as a means for interpreting the constitution),and (d) harmonization of law.

Researchers get easily lost when embarking on comparative legal research. Themain reason being that there is no agreement on the kind of methodology tobe followed, nor even on the methodologies that could be followed.

Find the legal system for a jurisdiction in: Judiciaries Worldwide: Map with basic information on the legal system and courts, full country profile for some countries. Juriglobe: Classification of legal systems of other countries.  Find maps and explanations classifying countries as having civil law, common law, Muslim law, customary law, or mixed legal systems. Includes a bibliography of works on the different legal systems. CIA World Factbook: Basic information on countries of the world, including languages, demographics, legal system, and governmental structure, including courts. Foreign Law Guide (subscription database): Research guides by country include descriptions of the country's government and legal systems, with citations and links to sources, documents, and secondary sources. NYU GlobaLex Guides: Detailed guides under Foreign Law are written by practitioners and law librarians. Information included varies but usually includes a description of the government institutions, the court system, and the primary sources of law. GlobaLex also has research guides on comparative law topics.  Sources on Judicial, Court, and Legislative Systems: Judiciaries Worldwide (Federal Judicial Center): Articles on court systems and judiciaries. Find information on legal traditions, judicial councils, court governance, judicial selection and education, judicial conduct, enforcement of judgments, and case management. Mostly comparative, with some specific country examples. More information is available in the country profiles for select jurisdictions. European E-Justice Portal: Information on justice systems and access to justice in EU countries. Includes sections on family matters and inheritance, court procedures, legal systems and courts, and judicial training. Includes some citations and links. IBA Regulation Directory Project: Directory of organizations responsible for regulating the legal profession in countries of the world, with links to bar associations and disciplinary authorities, and citations to laws on the legal profession.  Practical Law: Articles in the global section of Practical Law include some practice information on the legal profession and standards, judicial and arbitrator independence, and litigation procedures, particularly in the Practice Notes. IPU Parline: Information and data on national legislative bodies, law-making procedures, and elections. Rule of Law: An important question is how well the country adheres to the rule of law. How much protection do fundamental and constitutional rights receive? Is there corruption, making reliance on legal protections problematic? How has the constitution of the country evolved? World Justice Project Rule of Law Index includes measures of the adherence to the rule of law, including constraints on government power, fundamental rights, and civil and criminal justice. Special Rapporteur on the Independence of Judges and Lawyers: A mandate of the UN Human Rights Council to make recommendations for improving the independence of the judiciary and the legal profession. Find reports by country and theme. The Max Planck Encyclopedia of Comparative Constitutional Law has comparative articles on topics in constitutional law, civil and political rights, and legal systems, with examples, citations and links to constitutions and statutes, bibliographies of secondary sources, and select cases and documents. As with other encyclopedias, check for the dates of articles. Find commentary on constitutional rights and the rule of law in Hein World Constitutions Illustrated  (in commentaries and scholarly articles) and in Oxford Constitutions of the World.

In common law jurisdictions, stare decisis applies:  case law serves as precedent for later decisions and decisions of lower courts.  There are usually citators (like Shepards and Keycite) for verifying the status of case law precedents. Judicial opinions are primary authority along with statutes and the constitution, and they are more detailed than in civil law jurisdictions, and there is more reporting of cases. Codes and statutes also serve as legal authority. There may not be a single constitution or code. The United Kingdom and its former colonies (including the United States) have common law systems, or mixed systems including common law.

1. Identify your legal issue. What question or issue do you want to compare across jurisdictions? You may want current awareness and news sources to find a novel question for your research. 2. Choose jurisdictions to compare. What are their similarities and differences? For this, you may want to review research guides and country background reports to determine the selected countries' legal systems and find the points of comparison in their legal institutions. 3. Find secondary sources. These may include treatises and scholarly articles, either comparative works, or on the law of each jurisdiction. These will give you descriptions of the legal institutions for each country, analysis and interpretation of the law, and citations and keywords for continuing your research. 4. Gather primary materials. Legal research guides will help you find these. You may need subscription databases, government sources, or print materials, and you may need interlibrary loan to find them. These will include constitutions, judicial decisions, and statutes. 5. Update your research as needed. Have laws you found been superseded? Are your secondary sources reviewing current law? 6. At every stage, take good notes. Keep track of what sources you have used and what search terms you used. Note the citations for everything in your notes.

Macro level vs micro level: Comparing legal systems as distinguished from comparing more concrete rules and legal solutions to societal problems in different legal systems. Doctrinal framework vs underlying legal culture: Comparing the content of the law (values, principles, or rules) and the attitude towards the law versus comparing doctrinal frameworks as divided into the Common Law system and Civil Law system. Surface level vs deep level: Looking at superficial similarities and/or differences among legal systems, as compared to studying diverging types of ‘right’ included in complex legal concepts, rules and institutions, underlying world views, a detected common structural framework behind apparent differences, elements in history that are weakening the strength of seemingly opposed and irreconcilable approaches, etc.

Mark Van Hoecke proposes a toolbox, rather than a fixed methodological road map, for comparative law research in Mark V. Hoecke, Methodology of Comparative Legal Research 1 (2015).  He distinguishes six different methods for comparative research. The functional method is looking at the actual societal problem and the way this is solved in different jurisdictions along similar or different roads and with similar or different results. The focus is on the societal problem and the actual result of the legal approach to that problem. The analytical method is analyzing legal concepts and rules in different legal systems in such a way that common parts and differences are detected.  The structural method is focusing on the framework of the law or of the elements reconstructed through an analytical approach. This is not the structure of each of the compared legal systems, but just one way of looking at them, which proves to be revealing for answering the research question. The historical method will almost always be a necessary part of the methods used, for understanding differences and commonalities among legal systems and for determining their degree of belonging to a deeply rooted tradition or rather to accidental historical events.  The law-in-context method has inevitably also a historical dimension but focuses on the law’s current societal context, including, where appropriate, culture, economy, psychology, religion, etc. It studies a much broader context when compared to the functional or analytical method and implies the use of other disciplines. The common-core method looks for commonalities and differences between legal systems in view of the question to what extent harmonization on certain points would be possible among the compared legal systems or the question how a European rule, for instance, could be interpreted in such a way that it fits best the different national traditions.

Edward J. Eberle suggests the structured comparative law methodology in Edward J. Eberle, The Methodology of Comparative Law, 16 Roger Williams University Law Review 51 (2011).  Acquiring the skills of a comparatist in order to evaluate law clearly, objectively, and neutrally. Evaluating External Law, as Written or Stated. Evaluating the law as it is expressed concretely, in words, action, or orality.  Evaluating Internal Law (or Law in Action). Evaluating how the law actually operates within a legal culture. Determining Comparative Observations Assemble the results of our investigation and conclude with comparative observations that can shed light on both a foreign and our own legal culture.

Each legal system is a product of distinct social circumstances and unique culture, and venturing sweeping statements about superiority or inferiority of any system shall be avoided unless strong supporting reasons are behind them

In the course of exposition of legal contexts, differential comparison shall deal with features of the system and analyse the differences in specific legal principle or institution. Analytical comparison is an essential part of CLR. In relation to the research questions, the relations of various components of the legal doctrine, institution, or system shall be analysed in this process. For example, while making a comparative study of the jury system in England and France, how the relationships amidst witnesses, lawyers, judges, and other players affect the institution of the jury shall be analysed with reference to both the systems

It begins with depicting a comparative picture of non-legal context in which the comparative elements prevail. Demographic, geographic, social, historic, economic, and cultural atmosphere in which they exist and work provide a good backdrop for comparison. They hint about justifications for similarities and differences

The methods of agreement, disagreement, joint method of both, residue and concomitant variables

Analysis of the legal policy, provisions, their different components and relationships inter se provides a good understanding of the law.

Use of paradigms such as human rights, social justice, feminism, welfare, social transformation, multiculturalism, and postmodernism provides thematic unity and analytical tools for comparison. Developing appropriate criteria for evaluation becomes an important task of the researcher. The success of CLR depends much upon the suitability of the paradigm developed. Absent proper paradigm, CLR becomes rudderless and gets reduced to the position of water-tight juxtaposition statement or a dry listing of similarities and differences without much gain. Searching for values beyond the comparative position adds to CLR’s success. The comparatist ventures suggestion of new points of view and consideration of all the different solutions from such perspective. Freeing the solution from the context of its own system and using it as a free roaming proposition helps the process of migration of ideas.

Comparison of specific rules to resolve a particular problem can be called micro-comparison. The focus is on smaller units for manageable comparison. The focus may be on positive laws; on specific legal doctrine or precedent; on legal institution; or on description. Its task is analysis and explanation rather than evaluation. It is concerned with identification of similarities and differences and working on them. Examples include: comparative study of the guarantee of freedom of speech and expression in the United States of America and India; or of interrelationship of fundamental rights in India, the United States of America, and the United Kingdom; or of forming and performing treaty obligation in the United States of America, Australia, Canada, and India. While hard lines of distinction between macro-comparison and micro-comparison do not practically exist, their mutually complementary character should be recognized.

This involves the study of legal families or engagement in grand systems debate. The examples of legal family are: civil law, common law, religion-based laws (Hindu Law, Islamic Law, Talmudic law), and regional laws (Japanese law, African law, and Chinese Law). Differences prevail amidst legal families, whereas similarities prevail amidst member legal systems of each legal family. Hence, a macro-comparison may bring out differences or similarities depending upon the affinity or non-affinity of the systems to legal family. Five factors central to the legal family—background, predominant characteristic, distinctive legal institution, kinds of sources, and ideology—are to be looked at in a holistic manner. Study of non-legal materials—geography, history, sociology, economy, politics, and culture—provides valuable input for macro-comparison. For example, a glimpse of differential positions on these matters in India and Japan in the matter of ethnic minorities clarifies the reasons and justifications for different legal approaches. The aim to realize human rights and the working of democratic structure may provide factors of similarities. Ignoring these aspects weakens CLR.

Legal cultures supply fields of similarity to a considerable extent, but also exhibit differences in power processes in initiating and persuading change.81 Culture should be seen as the basis of a participant’s moral and cognitive experience and give input for thorough understanding. Legrand calls for looking into the epistemological foundation of the cognitive structure, which he names legal mentalité and understand the legal texts in that light.82 ‘Legal texts are not to be treated as objects in themselves—things capable for example of being transplanted from one system to another—but as signifiers of something culturally more profound about the “other”’.83 Cultural study flows both in the sphere of macro- and micro-comparisons.

Linking comparison with the function of legal system enlarges the dimensions of CLR, as it brings sociological discourse into action. Applied CLR resorts to functional comparison for the purpose of law reform and unification of divergent laws. This consists of ascertaining the essentials from accidental ones, the causes from differences, and examining their operation in the context of social environment in which legal system operates. ‘Functionalist comparative law,’ according to Ralf Michaels, ‘is factual; it focuses not on rules but on their effects, not on doctrines or structural arguments, but on events.’75 Further, it combines a factual approach with the theory that its objects must be understood in the light of their functional relation to society. It believes in the social-engineering instrumentality of law. In this approach, function itself serves as tertium comparationis and functionality can serve as an evaluative criterion. It provides a tool to understand the law effectively; it gives clues of comparability; in the context of universality of social problems, it justifies presumption of similarity; it systematizes the building process.76 It helps both synthesis and eclecticism of legal rules. According to Mark Tushnet: The functionalist approach to comparative constitutional law is similar to the universalist one to the extent that it tries to identify things that happen in every constitutional system that is the object of study…. Functionalists believe that examining the different ways in which democratic nations organize the processes of going to war and deciding emergencies can help us determine which are better and which are worse processes.77 Functionalist comparison aids in critiquing foreign law and gives a cultural perspective to understanding of the legal order.

The fourth canon, that is, the method of residue, helps in the selection of the phenomenon by searching for the most probable cause after subtracting the non-probable ones.73 For example, in examining whether effectiveness of constitutional bill of rights in planting the seeds of social change depends largely upon the existence of a support structure of legal mobilization, the study of the rights revolution in the United States of America, Canada, and India becomes appropriate. The ‘none of the above’ category can help in selecting those jurisdictions, which through the process of exclusion, can suggest a newly identified explanation.

When three countries have different approaches in the matter of state’s recognition of religion but exhibit similar tendency of popular support to theocratic movement, the selection of them for comparison is appropriate. Application of the third canon, namely, ‘joint method of agreement and difference’, contemplates that when the researcher wishes to draw upon a limited number of observations to test the validity of a theory, the observations shall feature as many key characteristics possible that are found akin to those found in as many cases as possible.72 Comparison of the judicial process in civil law and common law systems involves the use of mixed methods.

In developing the principles of selection in inference-oriented comparative study, Ran Hirschl uses J.S. Mill’s canons of experimental research. By using the method of agreement, the researcher shall select ‘most similar cases’ that have similar characteristics that are matched on all variables or potential explanations that are not central to the study, but vary in the values of the key independent and dependent variables.70 Hirschl gives the example of the comparative study of constitutional courts in Asian countries to illustrate this canon. Alternatively, the second canon, namely, the ‘most different cases’ approach, requires the researcher to compare cases that are different in all variables that are not central to the study but match in terms that have consistency on the key independent variables.71

The comparatist aims at drawing lessons from the approaches of different jurisdictions to the same or similar problem. There is a general belief that the problems of life are met with same or similar solutions of law, as law is a regulator of social factors in any jurisdiction and legal issues are similar. The presumption that practical results are similar (presumption similitudinis) in relation to similar social facts motivated comparative lawyers such as Gutteridge to start with the search for minimum similarity in order to avoid illusionary or absurd comparisons.65 But subsequent scholars such as Ancel and Legrand contest this presumption, view that the purpose of comparative law is identification of diversity of law, and give prominence to differences or oppositions for contrasting in the course of comparison (comparaison contraste).

‘T’ is not an objectively available yardstick in most of the circumstances, but it descends from a choice about ‘what matters’, or which aspects of the law are relevant for the comparatist. Legal arrangement for democratic functioning of NPOs or effective protection to ethnic minority is the broad theme of ‘T’ in the above examples. The sub-themes of T may touch upon the impact of imposition of colonial rule, competence of indigenous law, efficacy of control mechanisms in example (A); or upon ethnic self-governance system or legal security measures in example (B).

the tertium comparationis

The researcher shall clarify the need for comparative study by relating it to any of the purposes that are mentioned above. Once he is clear about what he wants to compare, he can streamline the subsequent steps, namely, define the basis of comparison, select the comparative elements or legal systems, and finetune the CLR process by looking at the systems and contexts and going beyond the texts. For example, a research work involving the comparative overview of six South Asian legal systems about governance of NPOs (A) may clarify at the outset about the core research questions about subjection of the NPOs to legal regulation, compulsion for good governance, and efficacy of law in ensuring the same.62 A research on constitutional protection of ethnic minorities in India and Japan (B) will focus on the issues of security, self-governance, and social justice as the means to be traced in the two systems

Once the researcher decides that he or she should opt for CLR because of the need to survey the diversity of experiences in relation to the felt difficulty in a chosen field, he or she should plan his CLR carefully. Statement of the problem, selection of comparative elements (jurisdictions, laws, institutions, legal families); identification of tertium comparationis; formulation of paradigm functionalist study; macro-comparison; cultural immersion; micro-comparison; comparison through application of methods of agreement, disagreement, residue, and aggregation; description and analysis; and estimation of relative merits and demerits are the specific steps in the course of CLR. However, it is not possible to suggest a rigid sequential order, as spontaneity of circumstances call for flexibility. In legal research for law reform, comparative study is the most common component of multimodal research.60

Descriptive analysis by observation of different systems is the primordial task involved in CLR. It goes beyond satisfying idle curiosity; it goes deep into doctrinal rationales behind divergent legal systems; analyses traditions as storehouses of information and resource for reliance. Since law is also a cultural phenomenon and manifestation of tradition, true understanding of the historical, social, and cultural background of the different systems is essential for evaluation of their comparative merits and demerits. The pattern of comparison may take any of the following approaches: parallel studies, looking at one’s own system through foreign eyes, looking at a foreign system through one’s own culture, and applying foreign theories or ideas.

Looking at distinct principles, procedures, approaches, and institutions, legal systems can be grouped into four major legal families in the world: common law, civil law, socialist law, and religion-based law. There are mixed legal systems owing to the superimposition of different colonial laws upon the same community or because of the co-existence of diverse indigenous laws and customs along with state law.

Comparative legal research enables building theory on the basis of varieties of experience, and has sound phenomenological background in a bottom-up approach or inductive reasoning

It contemplates comparison of systems rather than mere legal precepts, writes Roscoe Pound.11 This perception has a substantive social dimension, as it looks at the complete comprehension of traditions underlying the systems and the socio-economic factors that constitute their parts. It is the totality of the system to be compared, not fragments.12

Comparative legal research is a systematic exposition of rules, institutions, and procedures or their application prevalent in one or more legal systems or their sub-systems with a comparative evaluation after an objective estimation of their similarities and differences and their implications. Comparative legal research may be doctrinal or non-doctrinal, theoretical or fundamental, historical or contemporary, qualitative or quantitative; CLR is also called comparative law.

You have justified why you selected a comparative legal research to answer your research question and also your case selection, the next hurdle is to explain how you are going to use the comparative legal research design. In what way are you going to compare these two cases? Hoecke, posits six methods for comparative research: ‘the functional method, the structural method, the analytical method, the law-in-context method, the historical method and the common-core method’.  To understand these methods and how you can employ each  see Michaels, Karst, Monateri, Leckey, Eberle, and Frohlich.

At the core of comparative research methods, some authors argue that some extent of similarities referred to as, the ‘comparability’  or ‘construct equivalence’ should exist.  Esser and Vliegenthart assert, ‘a key issue in concluding comparative empirical research is to ensure equivalence, that is, the ability to validly collect data that are indeed comparable between different contexts and to avoid biases in measurement, instruments and sampling`.  Yet, in real life scenarios, ‘comparability’ may not reflect similarities. Explaining equivalence is also undermined by the single reason that, meaning of any concept is contextual.

Despite these concerns, comparative legal research emanates from comparative research methods which is the study of more than two or more macro-level units with the aim of explaining the differences and similarities between the units of analysis. The term ‘comparative’ implies that, a researcher seeks to compare one subject with another.

As this article focuses on comparative legal research, before choosing to employ it, it is critical to understand what it constitutes.  Hoecke notes that, ‘researchers get easily lost when embarking on a comparative legal research. The main reason being that there is no agreement on the kind of methodology to be followed, nor even on the methodologies that could be followed’. According to  Paris the lack of definition of what comparative law is, or what the method of comparative law is has exacerbated the situation.

Before you select any research method and design, the first thing as a researcher, is to formulate a clear research question informed by your research topic, aim, interests and theoretical framework. The assumption is that, you have selected a research topic that not only interests you, but is relevant and contributes to the ongoing conversation.

In effect, we are holding ourselves up to a mirror.How do the rules of our culture operate? How do our rulescompare to those of a foreign system? Is there something in theforeign culture that can benefit or lead to improvement of our ownsystem? 28 Or, upon reassessment, do we conclude that our systemoperates effectively?

Here we must focus on the legaldata points under review. What is the significance of the data?What have we learned? Has our investigation of a foreign legalsystem shed light into the operation and meaning of the foreignlegal system? Can we now understand the foreign legal systembetter? What has the foreign system taught us? These areprobably some of the most important questions to ask

Examples of internal forces might be custom, history,religion, 24 ethics, geography, 25 language, philosophy, 26interpretation or translation. There is a deeper dimension to lawthan that which manifests itself overtly. We must pay closeattention to law in all of its manifestations

A second, deeper part oflaw lies beneath the surface and is less visible. These are theunderlying forces that operate within a society to help form andinfluence law and give it substance. We might call this the"invisible" dimension of law. Not that this dimension is whollyunknown or unrecognizable, but more that this dimension of lawis one we tend to assume, take for granted, or perceive justdimly. 21 Or we might think of these invisible patterns asunderlying cryptotypes-"the pattern to be revealed" - or legalformants-"non-verbalized rule[s]" - or "implicit patterns." 22 Or wemight think of this dimension as "substructural, oftenunarticulated, categorizations ... ,"23 We might refer to thisdimension of law as internal: forces that operate beneath thesurface of external law, but which infuse the law with meaningful

Once we have undertaken the systematic study of thesimilarities and differences between legal data points, we canmove onto the next step: closely evaluating what is similar andwhat is different among the data points and why. Here we need toinvestigate and explore the reasons for the similarities anddifferences and then evaluate their significance within their legalculture. 20 We need to compare and contrast the points so that wecan arrive at a fully considered and understood conception of theobject under study. We need, then, to record the data we haveconsidered, outlining the substantive content of the data, and thenpointing out how the data compares and contrasts. Once we haverecorded the results of our investigation, we can begin to posequestions

n the next step of Rule 2, we must apply the same techniqueto assessing differences among legal data points. How and inwhat way are the legal data points different? Is the differencebased on words, on context, on functionality or something else?What is the concrete meaning of the differences? What do thedifferences reveal? How do you translate the differences across

First, we can focus on similarities. How are themultiple data points similar? Is it by word, rule, meaning,application, impact or some other underlying basis? Or is itbecause of the context of the legal norm, a functional meaning orsomething else? We need to understand the similarities betweenthe legal data points under review. The meaning of words andnorms can vary with their setting. What provides the basis for thesimilarity? What is the meaning of the similarity? How does thesimilarity translate across legal cultures? These are just some ofthe questions to pose

Words as written are important, but not enough.We must also understand what meaning the words have withinthe context of the case, statute, or other legal norm. That is, howdoes the legal rule fit within the broader framework of the legalsystem?

The essence of comparative law is comparing the law of onecountry against that of another country. The act of comparisonrequires a careful consideration of the similarities and differencesbetween multiple legal data points, and then using thesemeasurements to understand the content and range of the legalmaterial under observation. 19 To do this, we must look quitecarefully at the legal data points under review, assess andunderstand their content, meaning, and application. Here ourfocus will be on external law: law as written, stated or otherwisemade concrete.

After we have completed this investigation, we must thenemploy skills of translation; translating one world view intoanother. Employing the skills of translation is not easy. We needto be extremely careful and not assume that an idea or word willtranslate perfectly from one culture to another. We mustrecognize the meaning of the idea or word in its own culture,explain its underlying cultural context, and then translate thatmeaning as best we can to another legal culture, whether our ownor a different foreign culture. Translation will call upon us toexplain the underlying context of the culture the idea or word issituated in. Translation calls for understanding the multiplesemiotic systems and linguistic contexts that situate ideas, andthen determining how to adjust and transfer over that particularworld view into that of another. If we do this well, translation canbe a bridge to connect cultures.18 Or translation can illuminatedisjunction between legal orders. Illuminating either connectionor disjunction among cultures can yield valuable insights

For example, can we really understand the United StatesConstitution without an appreciation of the influence of theEnlightenment, natural law or Republican or English Whigtheory? Why, after all, do we refer to it as our "higher law?

We must also consider the underlyingconcepts, beliefs and reasons that underlie law, what we mightcall the legal mind or framework of legal philosophy that helpsdrive and structure law.

ule 1: The Skills of a ComparativistIt is the aim of comparative law to understand the legal rulesand patterns of order that drive a given society. To do this, weneed to develop critical reasoning skills that are applied in ascientific and neutral manner." Here we need to shed our built-in, native bias or "cognitive lock-in" so that we can review the dataobjectively. This will call upon us to engage in the exotic:exploring and explaining the substructural, underlying forces thatinfluence and form law. For natives of a legal system, this is aquestion of acculturation. Being a product of a culture, weintuitively sense the hidden forces that play out below theexternal manifestation of law. But in foreign culture, this is moredifficult. Here we must call upon the tools of the anthropologist orarcheologist: studying the underlying substrata of data that liewithin a culture. By employing these skills, we can betterunderstand a foreign culture

the law as stated and the law in action, we can assemble our data,(Rule 4) and conclude with comparative observations that canshed light on both a foreign and our own legal culture

The first part, (Rule 1) is acquiring theskills of a comparativist in order to evaluate law clearly,objectively, and neutrally. The second part, (Rule 2) is evaluationof the law as it is expressed concretely, in words, action, or orality.We can refer to this as the external law. Once we get anunderstanding of the law as actually stated, we can move on to thethird part, (Rule 3) of the methodology an evaluation of how thelaw actually operates within a culture. We might refer to this aslaw in action or the internal law.

My proposal for comparativemethodology consists of these steps: Rule 1 consists of acquiringthe skills of a comparativist. That skill calls for immersion in theculture under review, linguistic knowledge, and the application ofneutral, objective, and evaluative skills. Rule 2 will applycomparative skill to evaluate the external law, consisting of thelaw as written or stated. Here we must do a close assessment ofthe similarities and differences of the law of different countriesunder review. Rule 3 will involve applying the same methodologyto the internal law, consisting of the law that lies beneath externallaw yet has important influences on the formation of law. Finally,Rule 4 will involve assembling the results of comparativeinvestigation in order to determine what we can learn from aforeign legal system and how that insight might reflect on our own

But if there is one thing working people the world over can grasp, it’s budgetary constraints.What they also understand is the hypocrisyand the injustice of those constraints, which are onlyever applied to them, not to billionaires or the IMF. In the streets across the world, peopleare rejecting IMF-led austerity and market fanaticism and demanding a redress to longstandinginequities. Development organizations are joining in, recognizing that being liberals at home andcapitalists abroad won’t solve poverty. Oxfam has notably taken the unequivocal position thatpoverty in the Global South will be solved the same way it will in the Global North: progressivetaxation, public funding for basic services, and labor protectio

It is hypocritical to sit in Cambridge, enjoy its comparatively robust public goods regime, and actlike public goods have nothing to do with the well-being of Indians and Kenyans. The wealthyhave never been experimented on by economists in order to become wealthy, and no RCTs wereconducted in Cambridge before deciding to spend $28,000 per student per year. These are notquestions of science that need to be left to experts. They are political questions that requirepolitical solutions—even in the Global Sout

Instead, the laureates’ strategy tries to get a poor school to produce the same educational resultsas a well-funded school, just without the funding. In fact, all the solutions actually involvefurther cuts to already dismal public school budgets: lower teacher pay and fewerpermanentteaching staff. Their “small solutions” not only let the government off the hook and fail to solvethe political problems at the heart of the matter, they also tend to make those problems worse byadvocating for further privatization and deregulation

Fifteen development experts, including three former Nobel laureates, publiclydenounced randomista methods in The Guardian in 2018, recognizing that RCTs in developmentignore root causes of poverty, excessively narrow the size of the problem, and focus solelyon behavioral issues, casting poverty as the problem of bad choices

with methodological, ethical, and politicalassumptions that follow no laws of physics. Do RCTfindings from Kenya apply to India? What gives economists license to use the poor as guineapigs?

Development economists, who seem inherently nobler and moreliberal than their financial crisis–inducing macroeconomist counterparts, might in fact be moredangerous to the world’s poor. If the injustice of global poverty is to be challenged, their workdeserves intense scrutiny, not uncritical celebration

. Thanks to SAPs, poverty and inequality increased dramatically throughoutthe Global South in the late 20th century. Since 1981, the world’s poor population is estimated tohave risen by 1 billion,

Theirwork, crossing science with humanitarianism—you might even call it an attempt to “save” poorblack and brown people—has been an instant hit with Western liberals. And even as povertypolicy in the West is, albeit slowly, becoming understood as a political matter having to do withpower and inequality, poverty in the Global South continues to be treated as a scientific matter,requiring data and deference rather than democracy and dissen

Yet economists’ efforts to pass themselves off as scientists continue. Take developmenteconomists Abhijit Banerjee and Esther Duflo—two of the 2019 Nobel laureates—who begintheir new book, Good Economics for Hard Times, by lamenting that economists are amongthe least trusted experts on both sides of the Atlantic, beating out even weather forecast

this faith in economists—and their long-held belief that growth, however unequal, is good—has helped get us to historic levels of inequality, a global crisis of chronic under–and unemployment(especially among young people), and, despite much false advertising, a risein global poverty documented by scholars such as Sanjay Reddy, Camelia Minoiu, ArjunJayadev, and Rahul Laho

legacy of past struggles remains itself a resource incombating new oppressions and destruction

hat does, or might, constitute the‘truly human’ is not already given but is a work in progress andwill be shaped by the sort of dialogue that led to slaveemancipation and the post-emancipation struggles. Thusfeminists have felt the need to insist that womens’ rights arehuman rights.

Marxism has sometimes been seen as exalting the workersand toilers, and thus rejecting any humanist claptrap. But Marx’sadherence to the necessity of class struggle did not prevent himfrom arguing that capitalism was frustrating the full developmentof humanity’s ‘species being’. Without essentializing or idealizingthe ‘human’, he and Engels concluded the Communist Manifestoby declaring that their goal was an association in which ‘the freedevelopment of each is the condition for the free development ofall’.

Those who wage imperial wars in itsname are adopting a risky strategy that can blow up in their faces.Equally obviously, movements of protest against torture, arbitraryarrest, imprisonment are desperately needed in many parts of theworld. Those attacking the $' or British governments for‘rendition’ and the torture of suspects, or those claiming labourrights in China, !nd succour in human-rights language even ifthey would also need to reach beyond it

ometimes misappropriated in past centuries, so‘humanitarianism’ has all too often been adopted as cover forpost-Cold War militarism in recent times. It is necessary todisentangle the different uses of human right

The Latin American leftist guerrillas were suppressed withgreat brutality in one country after another from the mid-60sonwards. From Kennedy to Carter, Washington turned a blind eyeto death squads, or even connived at their activities. Within theguerrilla movements an internal critique emerged, to whichDebray contributed with his 1974 Critique des armes. The memoirof an indigenous Guatemalan woman, I, Rigoberta Menchu, editedby Elizabeth Burgos Debray, exposed the horrendous slaughterand showed that the defence of human rights was a critical terrainif the leftist movements were to regain the initiative against astring of Latin American dictatorships. The book helped toinspire a momentous reorientation and resurgenc

In fact, that periodwitnessed a proliferation of movements that helped dramaticallyto widen notions of ‘human rights’: women’s liberation, gayliberation, the hopes for ‘socialism with a human face’ inCzechoslovakia, the overthrow of dictatorship in Portugal andSpain, the European surge of trade-union mobilization

oyn’s scanty coverage—barely a paragraph—of theinternationalist left in the 1960s and 70s is equally cloth-eared.He writes of the Bertrand Russell War Crimes Tribunals, ‘theseversions of internationalism were a world away from the human-rights movement soon to form’. Quite why the Russell Tribunalcould be denied any concern with human rights is not clear. Oneof its members, Jean-Paul Sartre, declared in this journal that itsdeliberations were animated by ‘a certain idea of human life

the implicit alignment between movementsto end white rule in Africa and movements to end Jim Crow inthe $' was clear enough. The ‘human rights’ idea was taken upin different ways by the South African Freedom Charter, KwameNkrumah, Martin Luther King Jr, the Student Non-violentCoordinating Committee and the 1968 Olympic Project forHuman Rights. Moyn apparently does not regard the anti-racialistcomponent of much anti-colonialism and anti-imperialism as adimension of the ‘human rights’ package—wrongly, in my view.The struggle against apartheid South Africa was an icon of theanti-imperialist movement and surely had an absolute claim tothe banner of human rights

One of the impulses that led to itsdrafting was an ‘Appeal to the World’ from the $' NationalAssociation for the Advancement of Coloured People ( %)),1),written in part by W. E. B. DuBois

Many of the social rights in the 1948Declaration echoed the Soviet Constitution of 1936 —drafted, itshould be noted, by Bukharin, not Stalin, as a widespread mythhas it.

There is a living tradition here that cannotbe arti!cially arrested at some privileged moment. The problemwith Moyn’s re-reading is that it overstresses one importantconjuncture—the 1970s—and plays down any sense of a longerhistory of rights, both before and after his magic moment. ThusMoyn argues that few directly cited the 1948 UniversalDeclaration of Human Rights in the twenty years that followed itsadoption by the $%; during this period, the New York Times barelymentioned ‘human rights’. Yet the Non-Aligned Movementformally adopted the Universal Declaration at its meetings inBandung and Lusaka

Moyn denies that the Haitian revolutionaries were animated by aconcern for ‘human rights’, and tries to buttress his claim bydrawing on what he takes to be the more hard-headed approach ofC. L. R. James in his Black Jacobins:James did not think of presenting Toussaint L’Ouvertureand his confederates as human-rights activists beforetheir time. A Trotskyist, James’ view of droits de l’homme,instead, seems to have been as the ‘wordy’ promises ofeloquent ‘phrase makers’ who, driven by the trueeconomic motor of history to ‘perorate’, were in the endonly willing to give up the aristocracy of the skin at thepoint of the gu

ggest that this is the !rst clear statement that Atlantic slaverywas incompatible with what could surely be described as a humanright, or of what Ted Honderich calls the ‘principle of humanity’.Wallace explicitly elaborates that ‘it is intolerable to abusemankind that our pockets may be !lled with money or ourmouths with delicates.’ He declares private property to be ‘thebane of human felicity’. His chapter on slavery achieved widecurrency. It was reprinted in several editions in a collectionpublished by the Quaker and abolitionist pioneer AnthonyBenezet. It also served as the basis for the entry under slavery inthe French Encyclopédie

‘human rights’ as much to the psychology of the novel readeras to the arguments of the philosophers —with Rousseau, asphilosopher-novelist scoring on both counts. While the politicalpamphlet appealed to the reasoning faculty, the novel or poemencourages the reader to imagine herself or himself in thesituation of another. It directly aroused sympathy and de-familiarized oppression. The ‘golden rule’—do unto others as youwould have them do to you—acquired new dimensions in therealm of print culture, autobiography as well as novels. The readercould be invited to identify with those unlike themselves. The verymodesty of Laurence Sterne’s ‘poor negro girl’ in Tristram Shandy,who brushes aside "ies with a feather rather than kill them, takesthe reader off guard. The Corporal asks ‘(doubtingly)’ if ‘the negrohas a soul?’ to which Uncle Toby replies: ‘I am not much versedin things of that kind; but I suppose God would not leave himwithout one, any more than thee or me. —It would be putting onesadly ahead of another, quoth the Corpora

) The historical record simply does not bear outMoyn’s claim that 18th-century appeals to natural rights ‘lednowhere’. The process by which, for example, some abolitionistsand slave rebels came to make such appeals was highly complexand contingent but no less momentous for that. Abolitionistsdrew on slave witness and a few reached out to slave rebels.Together they inspired social movements of great illocutionarypower and momentous acts of slave emancipation.

Despite its talk, the strategicgoal of the Clinton White House was the expansion of %)*+ andnot ‘human rights’. If accepted as a partner, the Russiangovernment was pathetically anxious to be of help, as I argued inthese pages at the time. Determined to exploit Moscow’sweakness to the hilt, it treated the ,',- and the Treaty of Paris asmere scraps of paper. If the Russians had denied oil andmunitions to the Serbian forces, and if funds had been availableto the federal Yugoslav authorities, Milosevic could have been !rsthalted and then removed by domestic opponents—as eventuallyhappened, but only after hundreds of thousands of deaths and theethnic cleansing of millions. There is, of course, room forargument over details but the key point is that the West,notwithstanding its clamour about human rights, did notseriously attempt the peaceful regulation of the Yugoslav break-upby means of the established treaty. Moyn’s iconoclastic challengeto pious myths in the early chapters is abandoned when he comesto the sorry latter-day adventures of ‘./0 ’

its deployment, from Clinton and Blair onwards, as a!g-leaf for Western war-mongering in the name of ‘humanitarianintervention’

More importantly, thelarge philosophical literature discussing the intellectualfoundations of human rights is completely ignored.

There are important intellectual lacunae in Moyn’s account.He provides a brisk account of the treatment of human rights ininternational law, but has barely two lines on Myres McDougal,the militant Cold Warrior who was a towering !gure in the !eld,and scarcely a mention of Hans Kelsen, universally acknowledgedto be the global doyen of the disciplin

instead of assessing the short-term impacts of micro-projects, we should evaluate whole public policies

But the real problem with the “aid effectiveness” craze is that it narrows our focus down to micro-interventions at a local level that yield results that can be observed in the short term. At first glance this approach might seem reasonable and even beguiling. But it tends to ignore the broader macroeconomic, political and institutional drivers of impoverishment and underdevelopment. Aid projects might yield satisfying micro-results, but they generally do little to change the systems that produce the problems in the first place. What we need instead is to tackle the real root causes of poverty, inequality and climate change.

Development efforts over the past few decades have not been as effective as promised.Global poverty remains intractable: more than 4 billion people live on less than the equivalent of $5 (£3.80) a day, and the number of people going hungry has been rising. Important gains have been made in some areas, but many of the objectives set by the millennium development goals – to be reached by 2015 – remain unfulfilled. And this despite hundreds of billions of dollars of aid.

Development economics has gone some distance to curing itself of this error. The best development scholars today, such as Esther Duflo,

Rigorous statistical methods are increasingly used, and in recent years economists have implemented a range of randomised controlled trials. Much greater attention is paid to the minutiae of social context, as it has become clear that a vaccination programme that works well in one location may fail in another, for reasons relating to social order that outsiders do not understand. Expectations have been lowered; the goal is no longer to convert poor societies into rich societies, or even to create market institutions and eliminate corruption; it is to help a school encourage children to read in one village, or to simplify lending markets in another

However, in practice, international human rights law does not require western countries to change their behaviour, while (in principle) it requires massive changes in the behaviour of most non-western countries. Both foreign aid and human rights enforcement can be corrupted or undermined because western countries have strategic interests that are not always aligned with the missions of those institutions. But the major problem, in both cases, is that the systems reflect a vision of good governance rooted in the common historical experiences of western countries and that prevails (albeit only approximately) in countries that enjoy wealth, security and order

The reasons are varied. Giving cash and loans to a government to build projects such as power plants will not help the country if government officials skim off a large share and give contracts to cronies incapable of implementing those projects. Providing experts to improve the legal infrastructure of the country will not help if local judges refuse to enforce the new laws because of corruption or tradition or incompetence. Pressuring governments to combat corruption will not help if payoffs to mob bosses, clan chiefs, or warlords are needed to maintain social order. Demanding that aid recipients use money in ways that they believe unnecessary can encourage governments to evade the conditions of the donations. The Washington consensus failed because economic reform requires the consent of the public, and populations resented the imposition by foreigners of harsh policies that were not always wise on their own terms.

And while NGOs do press countries to improve their behaviour, they cite the human rights they care about and do not try to take an impartial approach to enforcing human rights in general. Sophisticated organisations such as Human Rights Watch understand that poor countries cannot comply with all the human rights listed in the treaties, so they pick and choose, in effect telling governments around the world that they should reorder their priorities so as to coincide with what Human Rights Watch thinks is important, often fixing on practices that outrage uninformed westerners who donate the money that NGOs need to survive. But is there any reason to believe that Human Rights Watch, or its donors, knows better than the people living in Suriname, Laos or Madagascar how their governments should set priorities and implement policy?

But while governments all use the idiom of human rights, they use it to make radically different arguments about how countries should behave. China cites “the right to development” to explain why the Chinese government gives priority to economic growth over political liberalisation. Many countries cite the “right to security,” a catch-all idea that protection from crime justifies harsh enforcement methods. Vladimir Putin cited the rights of ethnic minorities in Ukraine in order to justify his military intervention there, just as the United States cited Saddam Hussein’s suppression of human rights in order to build support for the Iraq war. Certain Islamic countries cite the right to religious freedom in order to explain why women must be subordinated, arguing that women must play the role set out for them in Islamic law. The right of “self‑determination” can be invoked to convert foreign pressure against a human-rights violating country into a violation of that country’s right to determine its destiny. The language of rights, untethered to specific legal interpretations, is too spongy to prevent governments from committing abuses and can easily be used to clothe illiberal agendas in words soothing to the western ear.

The reason these kinds of problems arise on the international but not on the national level is that within countries, the task of interpreting and defining vaguely worded rights, and making trade-offs between different rights, is delegated to trusted institutions. It was the US supreme court, for example, that decided that freedom of speech did not encompass fraudulent, defamatory, and obscene statements. The American public accepted these judgments because they coincided with their moral views and because the court enjoys a high degree of trust. In principle, international institutions could perform this same function. But the international institutions that have been established for this purpose are very weak

Thus, the existence of a huge number of vaguely defined rights ends up giving governments enormous discretion. If a government advances one group of rights, while neglecting others, how does one tell whether it complies with the treaties the best it can or cynically evades them

Then came September 11, 2001 and the “war on terror”. America’s recourse to torture was a significant challenge to the international human rights regime. The United States was a traditional leader in human rights and one of the few countries that has used its power to advance human rights in other nations. Moreover, the prohibition on torture is at the core of the human rights regime; if that right is less than absolute, then surely the other rights are as well.The rise of China has also undermined the power of human rights. In recent years, China has worked assiduously behind the scenes to weaken international human rights institutions and publicly rejected international criticism of the political repression of its citizens. It has offered diplomatic and economic support to human rights violators, such as Sudan, that western countries have tried to isolate. Along with Russia, it has used its veto in the UN security council to limit western efforts to advance human rights through economic pressure and military intervention. And it has joined with numerous other countries – major emerging powers such as Vietnam, and Islamic countries that fear western secularisation – to deny many of the core values that human rights are supposed to protect.

As the historian Samuel Moyn has argued in his book The Last Utopia, it was not until the late 1970s that human rights became a major force in international relations. President Jimmy Carter’s emphasis on human rights seems to have been a reaction to Vietnam and the gruesome realpolitik of the Nixon era, but Carter himself was unable to maintain a consistent line. Allies such as Iran and Saudi Arabia were just too important for American security, and seen as a crucial counterweight to Soviet influence. Still, something changed with Carter. His five successors – Republicans and Democrats alike – have invoked the term “human rights” far more frequently than any president before him. It is not that presidents have become more idealistic. Rather, it is that they have increasingly used the language of rights to express their idealistic goals (or to conceal their strategic goals).

it was on December 10, 1948, that the story began in earnest, with the adoption of the Universal Declaration of Human Rights by the UN general assembly. The declaration arose from the ashes of the second world war and aimed to launch a new, brighter era of international relations

Why, for example, do more than 150 countries (out of 193 countries that belong to the UN) engage in torture? Why has the number of authoritarian countries increased in the last several years? Why do women remain a subordinate class in nearly all countries of the world? Why do children continue to work in mines and factories in so many countries

We live in an age in which most of the major human rights treaties – there are nine “core” treaties – have been ratified by the vast majority of countries. Yet it seems that the human rights agenda has fallen on hard times. In much of the Islamic world, women lack equality, religious dissenters are persecuted and political freedoms are curtailed. The Chinese model of development, which combines political repression and economic liberalism, has attracted numerous admirers in the developing world. Political authoritarianism has gained ground in Russia, Turkey, Hungary and Venezuela. Backlashes against LGBT rights have taken place in countries as diverse as Russia and Nigeria. The traditional champions of human rights – Europe and the United States – have floundered. Europe has turned inward as it has struggled with a sovereign debt crisis, xenophobia towards its Muslim communities and disillusionment with Brussels. The United States, which used torture in the years after 9/11 and continues to kill civilians with drone strikes, has lost much of its moral authority. Even age-old scourges such as slavery continue to exist. A recent report estimates that nearly 30 million people are forced against their will to work. It wasn’t supposed to be like thi

Such initiatives may have the potential tobegin to subvert dominant racialising narratives, but, if anything, the rebalan-cing of prosecutorial focus beyond Africa is framed more in geographic andnational terms than explicitly racial ones, once again avoiding the discomfort ofacknowledging the significance race continues to exhibit globall

The scepticismtowards traditional justice, 95 or even sui generis transitional justice solutions, 96by advocates of international criminal justice suggests a hard universalist stancethat positions one, highly peculiar, form of justice—that is, criminal justice—assuperior to all other alternatives

it is also worth bearing inmind that the standard utilised in complementarity assessments itself feeds intoold tropes about African countries being unable to govern themselves, as well asa denial of legal pluralism, at least when it might clash with fundamental co-lonial interests.

For example, more direct and intimate processes of killing andabuse, which may be the only means available to relatively less powerful andtechnologically-sophisticated actors in a global context, who tend to be mem-bers of racialised communities, especially within Africa, tend to be portrayed ashighly deliberate and hence, especially ‘criminal’. By contrast, the sort of diffuse,attritive or structural processes of killing resulting from actions such as theinvasion of Iraq, tend to be seen as an inevitable by-product of war; one thatis entirely severable from the question of its legality

. In particular, the convictions of Thomas Lubanga Dyilo,Germain Katanga, and Jean-Pierre Bemba have had, amongst other things,the effect of associating Black Africans with physical and sexual violence, theabuse of children through the recruitment and use of child soldiers, and theinability to hold ‘civilized’ elections. Rather than the invasion of Iraq, torture inGuantanamo or Abu Ghraib, or the threat posed by nuclear weapons, the workof the ICC has myopically highlighted the destruction of cultural property orthe sexual violence against ‘bush wives’ as emblematic of African violence

Conversely, how might the ICC be implicated in a broader global ten-dency to essentialise Black women and young children as agency-devoi

f the ICC could achieve the task of operating in a truly ‘race-neutral’ manner, itwould still exist in a deeply racialised world, one whose racialised constructionsneed to be critically borne in mind and engaged with, lest they be simplyreproduced. This much is evident, for example, in the parallel, but in someways more accomplished, effort to stamp out sexual violence as part of inter-national crimes, an effort that hardly relieves international criminal justice ofthe need to think critically about gender—indeed, of thinking critically abouthow it deals with gender

Racial connotations also infiltrated longstanding biases con-cerning the poorer, more criminally-inclined, and coincidentally generallydarker-complexioned residents of Southern Italy in comparison to the weal-thier, less criminally-inclined, and, of course, generally fairer-complexionedNortherners. 52 Indeed, Lombroso’s quite explicitly racist ideas about predilec-tions to criminality led him to make connections between criminals in Sicilyand Southern Italy, and ‘Negroes in the United States’, whom he deemed toshare broadly similar characteristics

This explicitly racist perspective was used by Lombroso to explainthe criminality of the Mafia in Italy, who were viewed as descendants of Arabconquerors of Sicily and were thus, deemed connected to the criminally-inclined Bedouins.

Historically, certain criminal offences have long targeted certainsocial groups, to the point of being virtually indistinguishable from them. Forexample, in the US context, explicitly racist slavery laws and thereafter ‘BlackCodes’ criminalised certain minor offences (such as, for example, public intoxica-tion or vagrancy) extremely harshly if committed by African-Americans. Thesewere progressively replaced by more facially-neutral laws which nonetheless hada similarly drastic, disproportionate effect on African-American populations, not-ably in the context of certain criminal drug laws

As overrepresentation of certain racial groups in any criminal justice systemgoes, the ICC is almost cartoonesque. As of April 2019, the Court had issuedindictments against 45 individuals, juridically transforming them from ‘sus-pects’ into ‘defendants’. All of these individuals are Black and/or Arab-Africans. 9 Given that anti-Black racism continues to be especially prevalentglobally, 10 and anti-Arab racism is on the rise, one might think that the denun-ciation of the ICC’s ‘racism’ would have led to a more deliberate and intro-spective soul-searching, and perhaps even to a sophisticated effort at grapplingwith questions of race and racism. Yet, for the most part, the ICC and its coreproponents have strongly rejected any notion that race plays a significant role inthe work of the Court

Third, by its very design, the ICC is engineered to focus primarily on indi-vidual intentionality when it comes to racism. It is almost, then, as if ICL could onlysee broad social phenomena through a prism of professional deformation. Whatmatters, for example, cannot be the structural racism of colonial and post-colonialRwanda, but the particular identification with that racism by individuals who haveeither bought into the flawed logic of such racism or instrumentalised it for theirown political ends. The ICC and contemporary international criminal justice arethus more interested in racists than racism, despite ICL’s occasional acknowledg-ment of the significance of specifically racist ideologies.20Viewing racism in others as primarily a form of individual malevolencefundamentally limits the ability to see racism for what it is. If race only existsthrough intentional agency, then the ICC can (probably) make a cogent argu-ment that it is in no way racist. The Court, when viewed in this manner, is ‘race-neutral’; not itself implicated in the global production of race, let alone racism,and hence necessarily innocent of that which it prosecutes. This impoverishedconceptualisation of race and racism has often led the Court to step into thetrap of believing that an institution working in a deeply racialised world cannonetheless operate in a manner wholly emancipated from race and racis

In order to explore these questions, we suggest that much can be gained byadopting a perspective that is informed by conversations that have been goingon far longer and in much more explicit and sophisticated ways domestically,most notably in countries such as the US with long histories of racial discrim-ination and oppression. In particular, we are concerned that the overall enthu-siasm for international criminal justice has tended to insulate it from the muchharsher tones with which criminal justice has come to be viewed domestically inrelation to the prism of race. We draw, in particular, on the considerabletheorising that has emerged around the extremely disparate treatment ofAfrican-Americans within the US criminal justice system. 8 We suggest thatmany of the debates and much of the research sparked by the encounter be-tween race and criminal justice in the US can help us to better frame andunderstand the continuing impasse at the ICC in its dealings with race. Byexamining this domestic encounter between race and criminal justice, weargue that thin understandings of racism grounded in deliberate racist acts,and neglectful of structural racism, impoverish legal discourses on race andracism both in the US and international criminal justice contexts.

The ICC has frequently been criticised for focusing too much on Africa.There are several dimensions to this criticism. Some have pointed out the morepersistently neo-colonial aspects of such a focus.

the intent standard in the civil tort context requires only that the criminal conduct be the "natural consequence of [one's] original act," whereas criminal intent to aid and abet requires that the defendant have a "purposive attitude" toward the commission of the offense

holding that the publication of a Hit Man: A Technical Manual for Independent Contractors , whose detailed and concrete instructions on "how to murder and become a professional killer" assisted a man in taking three lives, wasn't protected abstract advocacy

Though a statute proscribes certain speech, in this case counseling, the defendant does not have a First Amendment defense simply for the asking. Counseling is but a variant of the crime of solicitation, and the First Amendment is quite irrelevant if the intent of the actor and the objective meaning of the words used are so close in time and purpose to a substantive evil as to become part of the ultimate crime itself. United States v. Barnett, 667 F.2d 835, 842-43 (9th Cir. 1982); Buttorff, 572 F.2d at 624. In those instances, where speech becomes an integral part of the crime, a First Amendment defense is foreclosed even if the prosecution rests on words alone.

We hold that where, as in Patillo's case, a true threat against the person of the President is uttered without communication to the President intended, the threat can form a basis for conviction under the terms of Section 871(a) only if made with a present intention to do injury to the President. Such intent may take the form of a bad purpose to personally do harm to the President or to incite some other person to do the injury.

However, it seems evident that an officer’s failure to adhere to the boundariesof a given statute should preclude him from relying upon it in the face of a constitutionalchallenge.18 Once the officer steps outside the scope of an unconstitutional statute, themistake is no longer the legislature’s, but the officer’

As we noted in Warshak II, “[t]he Stored CommunicationsAct has been in existence since 1986 and to our knowledge has not been the subject ofany successful Fourth Amendment challenges, in any context, whether to § 2703(d) orto any other provision.” 532 F.3d at 531. Furthermore, given the complicated thicketof issues that we were required to navigate when passing on the constitutionality of theSCA, it was not plain or obvious that the SCA was unconstitutional, and it was thereforereasonable for the government to rely upon the SCA in seeking to obtain the contents ofWarshak’s emails.1

But Miller is distinguishable. First, Miller involved simple business records, asopposed to the potentially unlimited variety of “confidential communications” at issuehere. See ibid. Second, the bank depositor in Miller conveyed information to the bankso that the bank could put the information to use “in the ordinary course of business.”Ibid. By contrast, Warshak received his emails through NuVox. NuVox was anintermediary, not the intended recipient of the emails. See Bellia & Freiwald, Stored E-Mail, 2008 U. Chi. Legal F. at 165 (“[W]e view the best analogy for this scenario as thecases in which a third party carries, transports, or stores property for another. In thesecases, as in the stored e-mail case, the customer grants access to the ISP because it isessential to the customer’s interests.”). Thus, Miller is not controllin

Nor is the right of access. As the Electronic Frontier Foundation points out inits amicus brief, at the time Katz was decided, telephone companies had a right tomonitor calls in certain situations. Specifically, telephone companies could listen inwhen reasonably necessary to “protect themselves and their properties against theimproper and illegal use of their facilities.” Bubis v. United States, 384 F.2d 643, 648(9th Cir. 1967). In this case, the NuVox subscriber agreement tracks that language,indicating that “NuVox may access and use individual Subscriber information in theoperation of the Service and as necessary to protect the Service.” Acceptable UsePolicy, available at http://business.windstream.com/Legal/acceptableUse.htm (lastvisited Aug. 12, 2010). Thus, under Katz, the degree of access granted to NuVox doesnot diminish the reasonableness of Warshak’s trust in the privacy of his emai

An ISP is the intermediary thatmakes email communication possible. Emails must pass through an ISP’s servers toreach their intended recipient. Thus, the ISP is the functional equivalent of a post officeor a telephone company

to friends, family, and colleagues half a world away. Lovers exchange sweet nothings,and businessmen swap ambitious plans, all with the click of a mouse button. Commercehas also taken hold in email. Online purchases are often documented in email accounts,and email is frequently used to remind patients and clients of imminent appointments.In short, “account” is an apt word for the conglomeration of stored messages thatcomprises an email account, as it provides an account of its owner’s lif

Email is the technological scion of tangiblemail, and it plays an indispensable part in the Information Age. Over the last decade,email has become “so pervasive that some persons may consider [it] to be [an] essentialmeans or necessary instrument[] for self-expression, even self-identification

This is true despite thefact that sealed letters are handed over to perhaps dozens of mail carriers, any one ofwhom could tear open the thin paper envelopes that separate the private words from theworld outside. Put another way, trusting a letter to an intermediary does not necessarilydefeat a reasonable expectation that the letter will remain privat

First, thevery fact that information is being passed through a communications network is aparamount Fourth Amendment consideration. See ibid.; United States v. U. S. Dist.Court, 407 U.S. 297, 313 (1972) (“[T]he broad and unsuspected governmental incursionsinto conversational privacy which electronic surveillance entails necessitate theapplication of Fourth Amendment safeguards.”). Second, the Fourth Amendment mustkeep pace with the inexorable march of technological progress, or its guarantees willwither and perish. See Kyllo v. United States, 533 U.S. 27, 34 (2001) (noting thatevolving technology must not be permitted to “erode the privacy guaranteed by theFourth Amendment”); see also Orin S. Kerr, Applying the Fourth Amendment to theInternet: A General Approach, 62 Stan. L. Rev. 1005, 1007 (2010) (arguing that “thedifferences between the facts of physical space and the facts of the Internet requirecourts to identify new Fourth Amendment distinctions to maintain the function of FourthAmendment rules in an online environment

we find that Warshakplainly manifested an expectation that his emails would be shielded from outsidescrutiny. As he notes in his brief, his “entire business and personal life was containedwithin the . . . emails seized.” Appellant’s Br. at 39-40. Given the often sensitive andsometimes damning substance of his emails,15 we think it highly unlikely that Warshakexpected them to be made public, for people seldom unfurl their dirty laundry in plainview

A “search” occurs when thegovernment infringes upon “an expectation of privacy that society is prepared toconsider reasonable.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). Thisstandard breaks down into two discrete inquiries: “first, has the [target of theinvestigation] manifested a subjective expectation of privacy in the object of thechallenged search? Second, is society willing to recognize that expectation asreasonable?” California v. Ciraolo, 476 U.S. 207, 211 (1986) (citing Smith v. Maryland,442 U.S. 735, 740 (1979

wever, because the agents relied in good faith on provisions of the StoredCommunications Act, the exclusionary rule does not apply in this instance

e Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  Article XV, (1870) Section 1. “The rights of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.  Section 2.  The Congress shall have power to enforce this article by appropriate legislation.”

Its high and noble words are tuned against it, because they are contradicted in every syllable by the treatment of the American Negro for three hundred and twenty-seven years.

But Congress may, by a vote of two-thirds of each house, remove such disability.

Article XIV, (1868) Section 1. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, not deny to any person within its jurisdiction the equal protection of the laws.

In the Constitution of the United States, Negroes are referred to as fellows although the word “slave” is carefully avoided before the thirteenth amendment.  Article I (1787) Section 2, apportionment of members of the House of Representatives: “Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.”  “Other persons” means Negro slaves