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Doctoral dissertation: The comparative study of laws requires reflection on the ethical position of the researcher.

13.11.2017

Studying different laws comparatively raises many fundamental theoretical issues, which are dwelled onto by Emma Patrignani in her recently completed article-based dissertation. Ideas drawn from neighbouring disciplines, such as philosophy, social sciences epistemology and anthropology, are made to interact with law: in this case the conception of otherness, the understanding of pluralism and the meaning of context are studied as basic theoretical issues that determine the methodological choices of the comparatist. The thesis advances an attitude toward comparativism as an academic endeavour that embraces complexity theory and that reflects on its own epistemological status.

Throughout its history, the discipline of comparative law has shown a remarkable variability. At times, legal comparison has drifted along with the currents of its own time; for example, displaying encyclopaedic and ethnocentric tendencies when it was practiced under the name of Rechtsethnologie in the nineteenth century or when it adopted the enthusiastic tones of belief in progress during the Paris Congress in 1900. Its development has sometimes been the result of the accidents of personal stories, such as those of the scholars who fled the Nazi-regime to the U.S. and were confronted with a new legal environment.

Traditionally, the comparative study of law has focused mainly on legal material produced by nation states, but nowadays the law is created at multiple levels and its general structure appears more like a net rather than a pyramid. To face the challenges of globalisation, also the study of comparative law has to transform itself by assuming the transnational dimension of the legal and including in the analysis normative phenomena existing on a smaller scale too. New analytic tools that can make sense of the new normative structures studied need to be developed.

Furthermore, the last 30 years have witnessed a deeply unravelling internal debate concerning the very fundaments of the discipline, its directions and purposes. Sharp disagreements have been manifested concerning the nature of the legal comparative scholarly endeavour and its aims and reasons: is it a method or a discipline? Does it further knowledge or use in practice? Other debated issues are, for example: micro- and macrocomparison (which one to favour in different circumstances); functionality (whether it is a meaningful starting point); structuralism (whether to adopt it as a background theory); differences vs. similarities (what to focus on); tertium comparationis (what it is and is it necessary to have one for comparing); and translation (practical and ethical issues). Moreover, debates have considered the possibility and desirability of legal transplants and of legal convergence.

With the articles included in her dissertation “Otherness, Pluralism and Context – Underground Issues in comparative legal studies”, Emma Patrignani has contributed to this debate by focusing on foundational – in this sense underground - theoretical aspects of comparative law. In particular, she has applied the thought of Emmanuel Levinas on alterity to comparative law and to comparative research ethics. She then stopped at the highly thought provoking crossroads between legal theory and empirical legal studies, and studied the theory of legal pluralism. She has reflected on the role of such theory (and in general of all analytical tools) on the production of knowledge, as indeed what we look for determine what we see. Later on she has argued that legal pluralism, as a theory of law, is better protected than other theories from wrongly claiming its own universal applicability. Finally, she has carried out a comparison. In this last article, she compared two decisions of the French and the German Constitutional Courts but her main point has again be a methodological one, namely a defence of the so-called law-in-context approach against accuses of stereotyping. Overall, her contributions aim at raising awareness of the risks connected to reductionism and simplification. On the contrary, both the understanding of the compared laws and the ethical position of the comparatist need to be reflected upon, which is what her contributions purport to do.

Information on the defence

Emma Patrignani will be defending her dissertation titled “Otherness, Pluralism and Context – Underground issues in comparative legal studies”, in the Faculty of Law on Friday 17 November 2017 at 12 noon. The defence will take place in lecture room LS 3, located at the University of Lapland, Yliopistonkatu 8, Rovaniemi. The Opponent will be Professor Geoffrey Samuel from Kent Law School, and the Custos will be Professor Jaakko Husa from the University of Lapland. Welcome!

Information on the doctoral candidate

Emma Patrignani was born 28 August 1985 in Ivrea (TO) Italy, where she also completed her undergraduate education. She then began her Bachelor degree at the University of Trento, Italy, whose Faculty was founded by the renowned comparatist scholar Rodolfo Sacco and concluded it with a comparative thesis at the University of Hamburg, Germany. She moved back to Trento for the Master, during which she started focusing her attention on the theory of comparative law. Later she also earned a second Master in Comparative Law from the University of Paris 1, where she researched under the supervision of Pierre Legrand. During her doctoral studies she spent long research periods both in France and in Germany.

Further information


Further information and press copies: Lapland University Press, tel. 040 821 4242, email: julkaisu (at) ulapland.fi

Information on the publication

Emma Patrignani: Otherness, Pluralism and Context - Underground issues in comparative legal studies. Acta Universitatis Lapponiensis 361. ISBN 978-952-337-030-2. ISSN 0788-7604. Lapland University Press, Rovaniemi 2017. Online version (pdf): Acta electronica Universitatis Lapponiensis 228. ISBN 978-952-337-031-9. ISSN 1796-6310.

LaY/Communications & Language centre/J-EK & AT
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