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The third chapter of the book analyzes the second moment in this genealogy of modern comparative law: comparative legislative studies. This second lapse in the construction of comparative law has its primary development in the nineteenth century. In this chapter, in particular, I examine Henry Summer Maine's work. The specialized literature recognizes him as another of the founding fathers of the discipline. The analysis of Maine's work revolves around three axes. In the first, the most important, I examine the concept of evolution as progress that the author is committed to. The historical method and the comparative method are the instruments that, for Maine, allow for describing and examining the legal and political evolution of humanity. For Maine, Europe is the locus of progress while India, as a paradigmatic representation of the Orient and of an undifferentiated "rest of the world," is the locus of barbarianism. The line that contains history is also occupied by a dual conceptual geography: on one hand, modern Indo-Europe and barbarian Indo-Europe, on the other, modern and barbarian Indo-Europe (that have a common culture) and the rest of the uncivilized world. In the narrative that Maine constructs, this spatial and temporal axis is also inhabited by particular subjectivities: the modern European, the Indian (as a representative of the oriental) and the individual from the savage rest of the world.
Chapter 9 includes some insights and observations from the Hon. Prof. Calabresi on the major elements of the Maimonidean theory, especially those that are similar – more or less – to contemporary tort law and economics. Calabresi discusses law, economics, and justice in our era and in Maimonides’ theory of torts, and empirical differences in the different times and their implications. Calabresi also considers the question of whether there are differences between the differential liability model presented by Maimonides, and contemporary theories of the economic analysis of tort law, expanding on deontological as opposed to utilitarian considerations according to law and economics. Calabresi deals specifically with the issue of punitive damages and discusses the innovative analysis of Maimonides compared to the multiplier approach, distributive justice as presented by Maimonides, and his optimal deterrence model. There is a great deal in Maimonides that presaged both his work in particular and sophisticated modern law and economics generally. Calabresi notes that not only can we now understand Maimonides, and the breadth of his thinking better, but we also have a clearer picture of the strengths and weaknesses of modern scholarship.
This chapter presents the book's argument that the early Alien Tort Statute cases filed in US courts in the 1970s and 1980s constitute American transitional justice in two senses: first, a legal mechanism enacting the transition of the United States and its former allies out of the Cold War order; and second, an approach to transitional justice drawing on the US tradition of privatizing public interest litigation. It distinguishes Alien Tort Litigation from other legal mechanisms in the United States, which scholars have interpreted as transitional justice conducted under other names, and situates Alien Tort litigation in the literature on the Cold War in US courts, the history of human rights, the study of law's historical narratives, critical approaches to human rights, and the sociology of human rights.
Natalie Davidson offers an alternative account of Alien Tort Statute litigation by revisiting the field's two seminal cases, Filártiga (filed 1979) and Marcos (filed 1986), lawsuits ostensibly concerned with torture in Paraguay and the Philippines, respectively. Combining legal analysis, archival research and ethnographic methods, this book reveals how these cases operated as transitional justice mechanisms, performing the transition of the United States and its allies out of the Cold War order. It shows that US courts produced a whitewashed history of US involvement in repression in the Western bloc, while in Paraguay and the Philippines the distance from US courts allowed for a more critical narration of the lawsuits and their underlying violence as symptomatic of structural injustice. By exposing the political meanings of these legal landmarks for three societies, Davidson sheds light on the blend of hegemonic and emancipatory implications of international human rights litigation in US courts.
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