Deadline: 24th May, 2010
This call for papers invites contributions on the role and goals of the activity of comparing within the legal sphere, exploring the issues of why the relevant actors compare laws and how they structure the act of comparing. “Comparing” is a basic component of social interaction. Indeed, our conduct and actions do not exist in a void. They come about in a perpetual reflexive context of mutual influences of individuals on other individuals. Therefore, the construction of our identity leads, on a daily basis, to the evaluation of the self in relation to the other; which will in turn affect the other in his definition of self. This has implications both on a psychological and material level. Seeing what others have, is a measuring stick for evaluating what we have and identifying what we want. In recognition of this fundamental rule of social interaction, the European Journal of Legal Studies invites you to submit papers for the forthcoming issue on the theme of Comparing Law, in order to shed light on how the sphere of legal interactions apprehends the fact of comparing.
We invite you to consider the two dimensions of this question.
First, if we apply the general rule of social conduct to the legal sphere, it is interaction of actors shaping the law (judiciaries, legislatures, administrative agencies, NGOs, law firms etc.) that matters. Thus, the question arises of why the relevant actors compare laws. In the context of a multi-layered and multi-faceted interconnectivity of legal systems and institutions, the answer could be plural. An immediate answer would be simply to that comparing the acts of different legal actors is a way to specify the content of a legal norm by observing its application by other actors of the legal sphere (e.g. comparing behavior of a defendant to that of other actors in a similar situation in order to determine whether he or she should be held liable; comparing the behavior of relevant actors to establish standard of care for a given market sector or to fill in the content of a general clause, in particular in the lex mercatoria setting). More fundamentally, the dialogue of legal systems implies that comparing is a way of acknowledging the other in order to be recognized, thus giving legitimacy to our legal conduct and to the legal system as a whole. This is particularly true of the international legal order, which because of shaky internal modes of legitimization, will depend on the external acceptance by States, the norms thus established in the international context trickling back down to and influencing national systems, in a perpetual dialogue. Which brings us to a final possible trend: comparing as a means to unifying laws over several legal systems, as can be seen in the procedural and substantial dimensions of Private International Law and the level of the European Union. From a methodological point of view, a distinction can also be drawn, based on what actors are involved. An academic does not have an obligation of “finding a solution”, whereas a judge will necessarily compare in order to resolve a dispute.
Second of all, we invite you to think the theme of Comparing Law through the prism of laws that compare. Legal interaction being fundamentally procedural, how do legal actors structure the act of comparing, in order to satisfy the requirement of legal certainty? This dimension calls for an analysis of the rules followed by judges, among others, when engaging in comparison. In general, that perspective invites us to investigate what mechanisms steer and control the activity of comparing. There is a technical aspect to this question (What laws are relevant in a comparison? Based on what criteria? Is reference to exogenous legal norms compulsory, or at the discretion of the entity comparing? Do foreign legal elements perform as legal transplants or rather irritants?), but also conceptual ones (What is the effect of the socio-legal background of the object of comparison and of the “comparor” on the act of comparing? Is an unbiased comparison possible? Or even desirable? Do we need ‘tertium comparationis’ to ensure comparability of the objects of comparison?).
We invite you to submit papers reflecting how these general considerations can be applied, with obvious overlaps, within the four sections of the European Journal of Legal Studies: International Law, Comparative Law, European Law and Legal Theory.
Submissions are accepted in any European language, subject to the linguistic make-up of the board. Anyone, professors, students, practitioners, and non-academics may submit an article. All submissions are anonymously peer-reviewed. Barring exceptional circumstances, the board will not consider submissions received after the 24th May, 2010.
For electronic submissions: firstname.lastname@example.org
For paper submissions:
European Journal of Legal Studies
European University Institute - Law Department
Via Boccaccio 121
I-50133 Firenze (FI), Italia