ELTRG Seminar: Camille Bordere (Université Jean Monnet Saint-Étienne)- ‘A Very Little Key to a Very Heavy Door: Comparative Law as Applied Legal Philosophy’

This is a seminar organised by the Edinburgh Legal Theory Research Group. The speaker Camille Bordere, from (Université Jean Monnet Saint-Étienne), will be presenting her paper on ‘A Very Little Key to a Very Heavy Door: Comparative Law as Applied Legal Philosophy’.

Our seminars consist of a 30-minute presentation given by the author, followed by a 60 to 90-minute Q&A. This is not a pre-read event, but the paper will be circulated beforehand through our mailing list. To subscribe, please send an email to edinburgh.legal.theory@gmail.com.

Author Bio: Camille is a Postdoctoral researcher (Chair of Comparative of Public Law and Policies, University of Saint-Étienne, France).

Abstract: Comparison is often at the core of the attempt at understanding both oneself and others on two connected, yet conflicting, levels. From a practical perspective, pointing at differences and resemblances is the surest way to build a comprehensive understanding of two instances of a phenomenon; from an epistemological perspective, researchers can only see from where they stand and so necessarily understand through the filter of what they already are and what they already know. Because knowledge is just as situated as humans are, any attempt at building that comprehensive understanding, and indeed, any understanding of others is shaped and possibly deformed by one’s cultural, social and disciplinary mindset.
For legal comparison, this mindset shaping the comparatist’s understanding of foreign law is made of the particular and shared comprehension of the law as a more or less autonomous phenomenon, the specific socialisation of those who make it their duty to build its knowledge, the cultural elements that connect them and create a legal community... Put another way, this mould is made of the collective memory that lays both the foundation of a national system of law as well as the conditions and boundaries of its study for national lawyers.
Comparative law has long embraced this epistemological distance between the comparatist and the foreign law they study. Comparatists such as Pierre LEGRAND, Gunter FRANKENBERG or Igor STRAMIGNONI have thus pushed for an understanding of legal comparison that takes charge of this distance by engaging in a “deep-level” comparison, both respectful of differences and attentive to the cultural and contextual elements that fuel the practice and comprehension of a particular legal system. Most, if not all, of the epistemological foundations of this specific practice of comparative law are rooted in philosophy. To take only three examples, the very sharp requirement for respect may be rooted in LEVINAS’ ethics of the Other, the necessary passage through culture and history, in KUHN and FLECK’s constructivism, and the integration of the cultural, social, historical and linguistical elements found during this passage in the interpretation of foreign law draws on GADAMER’S hermeneutic and/or DERRIDA’S deconstructionism. In other words, comparative law may very well be considered as legal philosophy put into practice.

This presentation offers to draw on this idea through two complementary approaches. The first would focus on legal comparison as an approach to law. We offer to study its construction as a philosophically entrenched quasi-discipline, through a panorama of the different ways philosophy forms the basis of the dominant approaches to legal comparison. The second would focus more keenly on the comparatist and the richness of view they may provide to more general discussions on legal philosophy. By getting more and more acutely aware of the philosophical challenges in understanding a law that is not theirs and by getting accustomed to other ways of studying law, comparatists may develop a sharper and more composite approach to law and legal knowledge which could, if listened to, considerably enrich philosophical and jurisprudential conversations.
 

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