Socio Legal Sydney

In the next section, we show how the use of analogies, such as the conceptualization of common basic features and the use of generalizations as heuristics, can be used in social law comparisons by referring to the contributions of this special issue. The topics and debates developed in comparative law often touch on questions and questions examined by social law specialists, such as the relevance of the context for legal change. There have been calls to broaden the scope. But how, if at all, can we compare the results of detailed empirical research, let alone case studies from very different social law traditions? David Nelken (in his article in this issue) highlights recurring problems in attempts to use indicators to compare contexts. It draws attention to criticisms of the deception of many measures and variables, problems arising from differences in transnational meanings and local understandings, and the need to look beyond statistics. It is clear that other approaches need to be explored. In this introduction, we give an overview of some of these debates and the problems they have identified for social law research. In this introduction, we discuss how researchers can use qualitative research, detail, and attention to context as a basis for comparison, often using case studies as a starting point and creating specific points of comparison from the available material. Qualitative and comparative work within the broader social sciences highlights the possibilities offered by the use of this material as a basis for informing comparisons of social law; Caution and inspiration can be found in relevant debates. Different approaches to qualitative and socio-legal comparison illustrate the contributions of this special issue. Creutzfeldt undertook a disciplined comparison of attitudes towards European ombudsmen, on the basis of large-scale surveys containing carefully defined questions for Ombudsman users. This indicated a remarkable similarity between European national borders.

However, their more open-ended questions also triggered a series of discursive responses that showed striking differences in the language used by respondents in the UK and Germany to describe their expectations. Creutzfeldt examined the links between the nature of these expectations and what other researchers have identified as different legal cultures at the national level in Europe. The qualitative data generated by the general survey questions created an unexpected and revealing point of contrast. A related critique of incommensurability is made by postmodernists who argue that the application of comparative concepts of “the West” in non-Western contexts is a form of analytical imperialism that reproduces the asymmetry of power between the observer and the observed (Steinmetz, Referenz Steinmetz 2004, p. 387). Non-Western societies and subordinate groups are analyzed in terms of Western and dominant culture categories rather than vice versa (Steinmetz, Referenz Steinmetz 2004, p. 388). As a result, terms such as “civil society”, “state” or “feudalism” have too often been used in comparative social science research, only to show that they are absent or only partially present in specific non-Western environments (Chakrabarty, reference Chakrabarty2000). Clifford and Marcus, writing on the politics of ethnography, urged qualitative scholars to exercise caution when applying such comparative concepts in the context of colonialism or global inequality, as they may deny the radical difference of the non-Western social order, its unique or immeasurable aspects (Clifford and Marcus, reference Clifford and Marcus 1986).

François Lyotard goes even further in the spirit of postmodernism, theorizing this asymmetry with the concept of differentiation, when the regulation of the epistemological conflict between the observer and the observed “occurs in the idiom of one of the parts, while the injustice suffered by the other does not mean in this language” (Lyotard, Reference Lyotard 1988, p. 6, quoted in Steinmetz, Reference Steinmetz2004). In legal anthropology, similar questions were raised even earlier by Bohannan (reference Bohannan 1963), who argued against Gluckman (reference Gluckman 1965) that Western legal concepts such as “rational man” could not be applied in African contexts. Although the debate was inconclusive, it is now accepted that a judicious choice of terms can lead to a fruitful comparison that enriches analysis and understanding (Holy, reference Holy1987). Moore`s groundbreaking work on the semi-autonomous social domain, for example, drew analogies between New York clothing retailers and Tanzanian farmers, while Greenhouse, Yngvesson and Engel (reference Greenhouse, Yngvesson and Engel 1994) drew insightful conclusions by comparing attitudes towards the law in three American cities. You absolutely have to have a great interest in this area to enjoy it! Studying law at HS triggered a big difference in students` preferences for the subject. How, then, can we compare ourselves without imposing our own categories or a perception of “problems” similar to those we are studying? We propose that these are not problems that can ever be completely overcome. In order to make a meaningful comparison, we must accept some points of similarity and make them explicit. In the case of a comparison between countries, this may involve identifying common histories or cultures within a geographical region or a similar nation-building project after a revolution; Or, in the case of a more local comparison, we could adopt common concerns to combat deviance or regulate access to natural resources. In such cases, comparing laws, legal practices or legal attitudes may be useful. It is important for the empirical scientist to be aware of the assumptions involved—about historical and cultural similarity or common human concerns—and of the possibility that even the most basic assumptions may become confused after further empirical investigation. In our view, the objectives of a rich qualitative description and nuanced understanding have been underestimated in the field of comparative law.

For many comparatists, the objective, explicit or implicit, was to identify differences as the basis for programmes of legal change and reform, as Nelken describes (in this issue). The identification of appropriate indicators or comparative terms is necessary to assess the significance of differences for instrumental purposes. But the comparison can also be used to highlight how people do things in a similar way. The goal here is often a more nuanced understanding of the law in context, in its own words. Some comparatists seem to reject the value of description and understanding as an end in itself, denigrating exercises such as “butterfly collection” or “mere description,” as opposed to the practical goals of justification, legitimization, and evaluation, as Mahy explains (in this issue). But should the comparison have a practical or evaluative purpose? We suggest that at least the evaluation or evaluation of laws and legal processes in very different cultural contexts must be preceded by a thorough understanding of the context in its own terms if any form of comparison is to avoid the pitfalls described by carnations. Identifying a meaningful comparative topic – and using qualitative data – can be instructive in itself, although it can also provide the starting point for more evaluative or policy-oriented studies.