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4 - Critical Methods

from Part I - Methods of Comparative Law

Published online by Cambridge University Press:  26 January 2024

Mathias Siems
Affiliation:
European University Institute, Florence
Po Jen Yap
Affiliation:
The University of Hong Kong
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Summary

Critical comparative law, as we know it, defines itself negatively: it stands not for, but against something, that is, traditional comparative law. This state of affairs turns critique into a weak programme for it tends to polarise and polemicise the discussion on comparative law and its methods. Critique divides an ‘us’ (the avant-garde) against ‘them’ (the mainstream). This chapter argues for a paradigm shift, reconceptualising critique as an ethos: an attitude that requires the comparative lawyer to position and reposition her- and himself time and again towards the received methodological tools and themes currently in vogue. Consequently, critical comparative law cannot be identified with advocating a specific substantive proposition or method, yet constitutes a mode of reflection. In this chapter, the critical positional work revolves around the view on (comparative) law from beyond the Western world. It first provincialises and specialises critical comparative law and, on this basis, discusses critically the topics of legal relativism, decolonialism, and orientalism, using universal human rights as its core theme. An integrated excursus on ‘law as such’, finally, clarifies some long-standing critical issues in the triangle of truth, language, and the lifeworld of the comparatist.

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Publisher: Cambridge University Press
Print publication year: 2024

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  • Critical Methods
  • Edited by Mathias Siems, European University Institute, Florence, Po Jen Yap, The University of Hong Kong
  • Book: The Cambridge Handbook of Comparative Law
  • Online publication: 26 January 2024
  • Chapter DOI: https://doi.org/10.1017/9781108914741.006
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  • Critical Methods
  • Edited by Mathias Siems, European University Institute, Florence, Po Jen Yap, The University of Hong Kong
  • Book: The Cambridge Handbook of Comparative Law
  • Online publication: 26 January 2024
  • Chapter DOI: https://doi.org/10.1017/9781108914741.006
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Critical Methods
  • Edited by Mathias Siems, European University Institute, Florence, Po Jen Yap, The University of Hong Kong
  • Book: The Cambridge Handbook of Comparative Law
  • Online publication: 26 January 2024
  • Chapter DOI: https://doi.org/10.1017/9781108914741.006
Available formats
×