Portrait of Dr Simone Glanert

Dr Simone Glanert

Reader in Law
Director English and French Law programmes
Director Kent Centre for European and Comparative Law

About

Qualifications: PhD (Sorbonne), LLM (Cornell), DEA (Sorbonne)

Dr Simone Glanert joined Kent Law School as a Lecturer in French and European Comparative Law in 2007. She was promoted to Senior Lecturer in 2012 and to Reader in 2017. 

After two years of studies in German law and French law at Universität Potsdam, Dr Glanert moved to France where she earned an advanced general studies degree in “French Law” (Licence) as well as a Master's degree in “International and European Law” (Maîtrise) from Université de Nanterre. She then obtained a postgraduate degree (DEA) in “Comparative Legal Studies” and a PhD from Université Panthéon-Sorbonne. Dr Glanert also earned an LLM from Cornell Law School where she studied as a Rudolf B. Schlesinger Fellow. 

On the professional front, Dr Glanert secured an internship at the Office of the President of the International Criminal Tribunal for the Former Yugoslavia and worked as a Teaching Assistant, at junior and senior levels, at Université Panthéon-Sorbonne and Cornell Law School. Her various teaching responsibilities included introductory seminars on French law and US law and advanced seminars on French contract law and family law. 

At Kent Law School, Dr Glanert has been teaching in the fields of French law, comparative law and legal interpretation. She has repeatedly acted as visiting professor in Canada, France, Qatar, Romania and Switzerland. Dr Glanert was a Fellow at the Dora Maar House in Ménerbes, France in April 2016 and a Fellow at the German Literature Archive in Marbach, Germany in July 2017.

Research interests

Dr Glanert’s research focuses on theoretical issues arising from the practice of comparison in the context of the globalization and Europeanization of laws. In this regard, Dr Glanert’s monograph De la traductibilité du droit (Dalloz, 2011) critically assesses the possibilities and limits of legal translation from an interdisciplinary perspective. Having edited Comparative Law – Engaging Translation (Routledge, 2014) and Law’s Hermeneutics: Other Investigations, (Routledge, 2017; with Fabien Girard), Dr Glanert has also acted as guest editor for a special issue on law and translation released by a leading translation-studies journal published by Routledge (The Translator, 2014). She is currently working on a book entitled Rethinking Comparative Law (Elgar; with Geoffrey Samuel).

Teaching

Simone's undergraduate teaching responsibilities span across Comparative Law, Droit français and Skills in Legal Interpretation.

Supervision

Dr Glanert supervises postgraduate research projects in the fields of Comparative Law, International Law, EU Law, Legal Translation and Legal Interpretation.

Professional

Member of the Executive Editorial Board, American Journal of Comparative Law

Reviewer for the Luxemburg National Research Fund

Publications

Article

  • Glanert, S. (2015). Au lieu d’une langue commune, un discours commun? Le cas de l’Union européenne. International Journal for the Semiotics of Law [Online] 28:73-90. Available at: http://dx.doi.org/10.1007/s11196-014-9372-y.
    This argument challenges the claim that, despite the lack of a common language, a commonality of laws could emerge within the European Union through a common discourse.
  • Glanert, S. (2014). Law-in-Translation: An Assemblage in Motion. The Translator 20:255-272.
    Law-in-translation, as it manifests itself in either oral or written form, can be usefully described as an assemblage in motion. Oscillating between the generic and the singular, legal translation has gradually affirmed a disciplinary identity of sorts vis-à-vis other well-established genres, such as literary translation or the translation of Scripture. Further, legal translation has been moving from the local to the ‘glocal’ scene. This neologism wishes to capture the idea that while law is more and more subject to translation on the European or international level, it remains unable to escape local forms of understanding. Finally, legal translation has been amplifying its semantic range from the literal to the metaphorical. Long confined to the transmission of oral or written statements across languages, law-in-translation features new instantiations as can be illustrated, for instance, through the ever-expanding circulation of legal concepts from one country to another and the re-formulation of law into economic language within international business relations.
  • Glanert, S. (2013). Europe, Aporetically: A Common Law Without a Common Discourse. Erasmus Law Review 5:135-150.
    In response to the European Union’s avowed ambition to elaborate a uniform European private law, some critics have maintained that uniformization is illusory on account of the disparities between the governing legal languages within the different Member States. This objection has, in its turn, given rise to an argument according to which uniformization could be ensured through the emergence of a common discourse. It has been said that such outcome is possible even in the absence of a common language. For the proponents of this claim, the theory of communicative action developed by Jürgen Habermas offers significant support. By way of reaction to the common-discourse thesis, this paper proposes to explain why it cannot be sustained and why one cannot usefully draw inspiration from Habermas’s thinking in order to promote a uniform private law within the European Union.
  • Glanert, S. (2013). Goethe’s Challenge. Journal of Comparative Law 8:288-321.
    The European Union is the glittering theater of many initiatives seeking to unify or harmonize various sectors of law across the civil law/common law historic divide. Along the way, many European lawyers have reached the conclusion that no claim can now usefully be made against the idea of evermore uniformization of laws. Yet, a primordial question remains largely unaddressed. Supposing transnational legal motions to be desirable on account of diverse political and economic considerations, do these endeavours require a re-arrangement of laws that would eliminate legal pluralism – as appears to be reflexively assumed? I answer in the negative. For the purposes of my argument, I draw extensively on Johann Wolfgang von Goethe’s idea of ‘Weltliteratur’, which he developed in 1827 in a context where leading German intellectuals wanted to displace the cultural agenda beyond the narrow confines of parochial interests. In my opinion, Goethe presents a compelling thesis for the view that a globalized discourse need not be achieved through the sacrifice of local knowledges. In the process, he affords the critic of Europeanization of laws the opportunity to challenge postulates to the effect that the only valid transnational paradigm ought to manifest itself in the form of ‘one-law-fits-all’. Signalling the virtues of an indisciplined approach to uniformization of laws on the European stage – of a perspective that literally takes one beyond the discipline of law –, Goethe’s strong message to European lawyers is that one ought to embrace cosmopolitanism while simultaneously valuing and seeking to preserve local knowledges.
  • Glanert, S. (2010). L’européanisation du droit au risque de la littérature-monde. Revue interdisciplinaire d’études juridiques 64:1-60.
    Over the last decades, diverse task forces have sought to promote legal integration within the European Union. The most familiar endeavours are no doubt those of Ole Lando’s “Commission” and Christian von Bar’s “Study Group”. And it is well-known that the European Parliament has spoken in favour of a European Civil Code on various occasions and that the European Commission has provided financial sponsorship for some at least of the major projects. Although the idea of a European private law has generated considerable debate, the specific implications following upon the brand of legal uniformization being defended remain poorly appreciated. In order to yield a more insightful perspective on the proposed legal framework, I consider Johann Wolfgang Goethe’s idea of “Weltliteratur” – or world-literature – that he elaborated in 1827 in a context where leading German intellectuals felt it imperative to move the cultural agenda beyond the narrow confines of parochial interests. The striking contrast between the two models of intercultural communication sheds light on the legal initiatives mentioned above. In particular, my comparative and interdisciplinary analysis points to the many translational problems arising from the development of uniform law in a plurilingual setting which are either ignored or downplayed by proponents of a European private law.
  • Glanert, S. (2008). Speaking Language to Law: The Case of Europe. Legal Studies [Online] 28:161-171. Available at: http://dx.doi.org/10.1111/j.1748-121X.2008.00084.x.
    No legal integration project can circumvent the matter of language. Yet, lawyers advocating one form or other of Europeanisation of law, apparently basing themselves on the unexamined view that everything is adequately translatable, do not seem prepared to address linguistic issues. But a move beyond law’s disciplinary barriers – in particular, a foray into translation studies (or ‘translatology’) – compels one to challenge the effectivity of the uniformisation agenda. First, it shows that the inherently local character of language resists the establishment of uniform law. Second, it demonstrates that no uniform law, irrespective of the language in which it is written, can account for local legal experience. Both claims suggest that language simply cannot be made subservient to the lawyer’s agenda and that the assumption that it can be ignored is mistaken.
  • Glanert, S. (2006). La langue en héritage: réflexions sur l’uniformisation des droits en Europe. Revue internationale de droit comparé 58:1231-1247.
    The willed interaction of laws in Europe entails an interaction of languages. Yet, the defenders of uniformization of laws ignore the linguistic stakes in a way that can only summon the traductologist. Given his epistemic assumptions, the latter is however led to react in a way that lawyers will readily find subversive. Sensitive to the fact that law is carried by language, the traductologist explains how lawyers account neither for language’s persistence nor for its transience. For these two admittedly paradoxical reasons, the traductologist argues that lawyers largely underestimate the impact of language on the ongoing process of uniformization of laws. Undoubtedly, the traductologist’s reaction to the uniformization agenda stands in contrast to the translator’s traditional image, which is that of a servant or mediator. But the translator has been invisible long enough and should now be disposed to criticize those normative texts that imply a linguistic diversity and yet postulate the univocity of meaning. Through his work, the traductologist emphasizes the immense value of interdisciplinarity, which alone permits a more sensitive understanding of the implications of uniformization of law.
  • Glanert, S. (2006). Zur Sprache gebracht: Rechtsvereinheitlichung in Europa. European Review of Private Law [Online] 14:157-174. Available at: http://www.kluwerlawonline.com/toc.php?area=Journals&mode=bypub&level=6&values=Journals%7E%7EEuropean+Review+of+Private+Law%7EVolume+14+%282006%29%7EIssue+2.
    European lawyers who favour greater harmonisation of laws tend to minimise the fact that such process necessarily relies on language. Drawing on translation theory, this paper shows how the inherently local character of language resists moves towards the establishment of uniform laws and how no uniform law, irrespective of the language in which it is written, can account for local legal experience. This analysis thus allows the author to highlight the inherent limits of the ongoing harmonization process in Europe.

Book

  • Glanert, S. (2011). De La Traductibilité Du Droit. Paris: Dalloz.
    This book addresses salient issues arising from legal translation in an era of Europeanization and globalization of law, focussing in particular on translation’s promises and limits. First, various fields of knowledge are solicited, such as linguistics, translation studies and philosophy, in order to clarify the relations between law and language. Secondly, detailed studies of the Canadian experience of translation of federal statutes, on the one hand, and of the proposed uniformization of private laws within the European Union, on the other hand, are offered in order to illustrate the difficulties inherent to the process of legal translation. By assessing in rigorous manner and by means of two different examples the implications of legal translation at a time of cosmopolitization, this interdisciplinary and critical work intends to further legal knowledge both in its theoretical and practical dimensions.

Book section

  • Glanert, S. (2017). The Interpretation of Foreign Law: How Germane Is Gadamer. In: Glanert, S. and Girard, F. eds. Law’s Hermeneutics: Other Investigations. London: Routledge, pp. 63-80.
    Globalization processes attest to foreign law’s increasing relevance. Consider how the US Supreme Court, one of the most influential interpreters in the legal world, has been referring to foreign law in high-profile decisions regarding the meaning of the US Constitution. Also, in cases involving immigrants German judges are having to assess whether a defendant’s cultural background should impact a decision on guilt or civil responsibility. Meanwhile, New York University has established the Hauser Global Law School, Georgetown the Center for Transnational Legal Studies, Harvard the Institute for Global Law and Policy and King’s College London the Dickson Poon Transnational Law Institute. Journals like the Columbia Journal of Transnational Law, the Indiana Journal of Global Legal Studies and Transnational Legal Theory have emerged, not to mention an immense proliferation of exchange programmes, summer schools, curricula, courses, symposia, colloquia, books, dissertations and blogs. This massive paraphernelia of collective intellectual effort makes challenging interpretive demands on lawyers and suggests the need for reliable theoretical frameworks. In this respect, Hans-Georg Gadamer’s philosophical hermeneutics solicits special attention. Not only has Gadamer had a profound impact on literary and social theory by underwriting the “interpretive turn”, but he devotes important sections of his masterpiece, Truth and Method, to law. However, can Gadamer’s work on interpretation assist ascription of legal meaning across cultural lines? Reactions about the applicability of Gadamer’s interpretive insights to intercultural understanding diverge widely (this situation incidentally vindicating his claim that “one always understands differently, if one understands at all”). I address this controversy.
  • Glanert, S. and Girard, F. (2017). Introduction: Hermeneuticizing the Law. In: Glanert, S. and Girard, F. eds. Law’s Hermeneutics: Other Investigations. London: Routledge, pp. 1-7.
    What are the possibilities and limits of legal interpretation? Are lawyers neutral interpreters of legal texts? Can they ever become unprejudiced, say, through resort to a method? Are there words that can constrain the most activist of judges? Must even the adherent to the strongest form of judicial restraint accept that words carry inherent interpretative latitude? Does legal interpretation involve more than the simple application of the law to the facts? To what extent do economic, socio-political or religious factors influence the interpretation of law and how legitimately so? Ought the age and gender of the interpreter to play a determining role in the understanding of legal texts? Can rules of interpretation lead the interpreter to the correct meaning of the law? Is there the exact meaning of the law in any event? Further, one may ask whether it is not problematic that the interpretation of international legal texts should vary significantly from one country to another. For example, does one expect Chinese and Japanese judges to adopt the same approach to the legal interpretation of an international treaty? Can we at least assume that English and North-American lawyers read legal texts in English in the same way? Is it possible to achieve a uniform interpretation of an international legal instrument across a great number of different countries or Member States? This collection of essays explores the matter of reading the law and inquires into the emergence of meaning within the dynamic between reader and text against the background of the reader’s worldly finiteness. It wishes to contribute to an improved appreciation of the merits and limits of law’s hermeneutics which, it argues, is emphatically not to be reduced to a simple tool for textual exegesis. In this regard, the various chapters purport to supplement and update the body of work to be found in the available literature on legal hermeneutics, whether ancient or recent. More precisely, the contributions to this volume aim to revisit legal hermeneutics by making particular reference to such other disciplines as philosophy, sociology and linguistics.
  • Glanert, S. (2015). Metoda?. In: Bercea, R. ed. Comparatia in Stiintele Sociale. Mizele Interdisciplinaritatii. Bucharest: Universul juridic, pp. 47-65.
  • Glanert, S. (2014). Translation Matters. In: Glanert, S. ed. Comparative Law – Engaging Translation. London: Routledge, pp. 1-19.
    As languages are deterritorializing on an unprecedented scale, as monolingualism is being denaturalized, not least on account of the emergence of global assemblages such as the European Union, translation is materializing as never before. Everything is being translated. Yet, it remains the case that nothing is translatable. Indeed, it has become trite to observe that ‘secularism’ does not carry the same meaning as ‘laïcité’ or that ‘contract of sale’ does not mean the same as ‘Kaufvertrag’. Law, immingled as it is with language, could not have escaped this aporetic manifestation of linguistic postnationalism. Or could it? Can French law, for instance, exist in a significant manner (i.e. in the sense that it would make sense) beyond the French language? Specifically, can the German translation of an English casebook usefully account for English contract law in the German language? To move one step further, is it possible to design a law that would mean the same thing across various legal languages and that could therefore legitimately claim the status of ‘uniform’ law? Can the language of the law really unbelong, that is, detraditionalize itself? Or does it have a border, in French ‘un bord’, that would suggest an inside and an outside of it, that would entail that it can find itself, at some juncture, ‘débordé’ (or overcome), facing something like intractable alterity? But then, does legal translation need to imply (as it is reflexively assumed to do) sameness, isomorphism, commensurability and adaequatio? Could it not depart from the philological tradition and legitimately involve something other than fidelity to an original text? Is legal translation not an original work in and of itself? In this introductory chapter, I briefly address what I deem some of the most important problems arising from translation in the context of comparative legal studies. In the first part, I foreground the impossibility of translation. Contrary to unexamined assumptions, law simply cannot be faithfully translated from one language to the other. Turning to the second aspect of my argument, I claim that the comparatist must however make the impossible possible. Despite the irreducible differences across languages and cultures, the comparative lawyer cannot refrain from translation. Moreover, she must choose, among the various available strategies, an approach to translation that values the otherness of the foreign law. In my third section, I introduce the various contributions to this volume, which all offer comparatists invaluable insights into the theory and practice of translation in comparative legal studies.
  • Glanert, S. and Legrand, P. (2013). Foreign Law in Translation: If Truth Be Told…. In: Freeman, M. and Smith, F. eds. Law and Language. Oxford: Oxford University Press, pp. 513-532.
    Law regularly calls for translation. But can a given translation disclose such normative purchase on the original text so as to warrant — and indeed require — identification as the ”true” translation of it? Drawing support both from Jacques Derrida — one of Continental philosophy’s most influential thinkers — and Willard Quine — one of analytic philosophy’s preeminent exponents —, we answer in the negative. As it builds on converging insights hailing from widely different philosophical horizons, our argument challenges the view that competence and commitment can ever ensure the exactness which lawyers assume they must encounter in the translated text.
  • Glanert, S. (2013). The Challenge of Translation. In: Palmer, M. ed. ADR and Legal Practice in Comparative Perspective. Beijing: China University of Political Science and Law Press, pp. 370-380.
    Every comparative legal study inevitably requires an act of translation. Indeed, the role of the comparatist is to explain, by making use of her language, a foreign law generally formulated in a different language. She is frequently asked to translate all kinds of legal texts, including international treaties, statutes, judicial decisions, private legal agreements and legal scholarship, from one language into another. Consequently, it must be assumed that the task of the comparatist always already includes that of a translator. In this paper, I address what I regard to be the most important problems arising from translation in the context of comparative legal studies.
  • Glanert, S. (2012). Method?. In: Monateri, P. ed. Methods of Comparative Law. Northampton: Edward Elgar, pp. 61-81. Available at: http://www.e-elgar.co.uk/bookentry_main.lasso?id=14004.
    It is hardly an exaggeration to think of method as a disciplinary hallmark. No discipline, it seems, can lay claim to intellectual respectability unless it features an accredited method. But comparative law is unusual in as much as it is commonly reduced to a method — and this, by comparativists themselves. In other terms, comparative law would be a strictly methodological endeavour. Indeed, the leading textbook in the field describes comparative law as a “heuristic method of legal science”. Yet, method remains woefully untheorized. Now, does it do more than betray “science envy”? Can it effectively overcome situation (that of the law and that of the comparativist)? Is it in a position to offer epistemological guarantees of any kind? In sum, how, if at all, is it able to contribute to the credentialization of comparative law? Drawing principally on the work of Hans-Georg Gadamer, Jacques Derrida, and Paul Feyerabend, I seek to revisit method. The outcome of my interdisciplinary enquiry allows me to review fundamentally the very nature of comparative law and to overcome common assumptions that are no longer sustainable.
  • Glanert, S. (2009). Comparaison et traduction des droits: à l’impossible tous sont tenus. In: Legrand, P. ed. Comparer Les Droits, résolument. Paris: Presses Universitaires de France, pp. 279-311.
    A number of literary critics, philosophers, and lawyers have argued in favor of an ethical approach to translation. Through various examples, I first seek to illustrate what these thinkers have had in mind. Having contrasted this perspective with ethnocentric translation, I then argue in favor of an ethics of translation, although I make the philosophical point that, strictly speaking, an ethical translation is impossible to achieve. I conclude, however, by claiming that the ethical claim is so compelling as to force the translator to achieve the impossible.

Edited book

  • Glanert, S. ed. (2018). Comparative Legal Reasoning: Essays in Honour of Geoffrey Samuel. [Online]. London: Wildy, Simmonds and Hill Publishing. Available at: http://www.wildy.com/isbn/9780854902484/comparative-legal-reasoning-essays-in-honour-of-geoffrey-samuel-hardback-wildy-simmonds-and-hill-publishing.
  • Glanert, S. and Girard, F. eds. (2017). Law’s Hermeneutics: Other Investigations. London: Routledge.
    This edited collection of essays brings together a dozen leading academics hailing from different scholarly and cultural horizons with a view to revisiting legal hermeneutics by making particular reference to philosophy, sociology and linguistics. On the assumption that theory has much to teach law — that theory solicits, motivates and enables —, the writings of such intellectuals as Martin Heidegger, Hans-Georg Gadamer, Jacques Derrida, Paul Ricœur, Giorgio Agamben, Ronald Dworkin and Ludwig Wittgenstein will receive special consideration. As it explores the matter of reading the law and as it inquires into the emergence of meaning within the dynamic between reader and text against the background of the reader’s worldly finiteness, the book wishes to contribute to an improved appreciation of the merits and limits of law’s hermeneutics which, it argues, is emphatically not to be reduced to a simple tool for textual exegesis. By generating a fruitful exchange between leading scholars from various disciplines in order to highlight the modalities under which understanding takes place, this work will give lawyers the opportunity to think more critically about legal interpretation.
  • Glanert, S. ed. (2014). Comparative Law - Engaging Translation. [Online]. London: Routledge. Available at: http://www.routledge.com/books/details/9780415642705/.
    In an era marked by processes of economic and political integration that are arguably unprecedented in their range and impact, the translation of law has assumed a new significance. The following situations are typical. As the expression of a strong postcolonial commitment, various African states have decided to draft their legislation in more than one official language with a view to conferring equal authority upon colonial and traditional languages. Elsewhere, an influential group of European lawyers is seeking to develop a civil code for the European Union that potentially stands to be translated into 23 languages. Meanwhile, former political and military leaders are being prosecuted for genocide before the International Criminal Court, a body consisting of judges from many different legal backgrounds and operating according to a complex multilingual procedure. And, controversially, the US Supreme Court has relied upon foreign law in order to assess the constitutionality of a Texas statute criminalizing certain forms of sexual behaviour. Each of these instances raises the matter of law in translation, broadly understood. Can legal rules carry identical normative implications in more than one language? Can law achieve uniformity despite needing to be rendered in many languages? How do interpreting and translation affect adjudication in a multilingual courtroom? To what extent can a given legal text make sense in a different legal culture? These questions, among others, are addressed here within a comparative legal context in which, it is demonstrated, translation issues are a central feature of the contemporary legal landscape.

Edited journal

  • Glanert, S. ed. (2017). Guest Editor for Special Issue on ’Comparative Legal Reasoning’. Journal of Comparative Law 12:1-202.
  • Glanert, S. ed. (2014). Guest Editor for Special Issue on ’Law in Translation’. The Translator 20.
    In an era marked by processes of economic and political integration that are arguably unprecedented in their range and impact, the translation of law, whether understood in its literal or metaphorical sense, has assumed a significance that can hardly be overstated. The following situations are typical. As the expression of a strong postcolonial commitment, various African states have decided to draft their legislation in more than one official language with a view to conferring equal authority to colonial and traditional languages. Elsewhere, an influential group of European lawyers is seeking to develop a civil code for the European Union that stands to be translated in 23 languages. Meanwhile, former political and military leaders are being prosecuted for genocide before the International Criminal Court, a body consisting of judges from many different legal backgrounds and operating according to a complex multilingual procedure. Controversially, the US Supreme Court has relied upon foreign law in order to assess the constitutionality of a Texas statute criminalizing certain forms of sexual behaviour. Each of these instances raises the matter of law in translation. Can legal rules carry identical normative implications in more than one language? Can law achieve uniformity despite requiring to be rendered in many languages? How do interpreting and translation affect adjudication in a multilingual courtroom? To what extent can a given legal text make sense in a different legal culture? These questions raise only some of the difficult issues that confront lawyers and translators currently acting across national borders. This special issue of The Translator features a number of critical, innovative and interdisciplinary contributions drawing on fields such as translation studies, linguistics, literary theory, sociology, philosophy and postcolonial studies which probe the interface between law, language and translation, with specific reference to the transnational situation as it is currently unfolding.

Review

  • Glanert, S. (2017). SG on GS: A Review of Samuel, Geoffrey. An Introduction to Comparative Law Theory and Method. Oxford, Hart, 2014. xvii, 226 pp. ISBN 9781849466431. Journal of Comparative Law 12:539-547.
    Mirroring French specialists in French family law or German experts in the German law of obligations or English authorities on the English law of wills, comparatists have tended to orient their legal research towards rules and the interpretation of rules, whether judicial or doctrinal. Not only are theoretical reflections on the practice of comparative law a recent occurrence, but they continue to be of interest to a relatively small number of comparatists only. Inevitably, crucial issues like the relationship between law and culture or the translatability of law, the extent to which an understanding of another law is possible or the objectivity of legal interpretation therefore remain under-theorized within comparative law. In this regard, Geoffrey Samuel’s book, An Introduction to Comparative Law Theory and Method, contributes timely insights to the necessary theoreticization of comparative law. Although Samuel’s monograph has been ‘designed primarily for postgraduate research students whose work involves comparison between legal systems’ (at vii), it must be welcomed by any comparatist who takes comparative legal research seriously. But such earnest comparatist will want to engage with Samuel’s determinations.
  • Glanert, S. and Legrand, P. (2017). Law, Comparison, and Epistemic Governance: There Is Critique and Critique – A Review of Günter Frankenberg, Comparative Law As Critique (Cheltenham: Edward Elgar, 2016) 281pp. German Law Journal [Online] 18:701-720. Available at: https://static1.squarespace.com/static/56330ad3e4b0733dcc0c8495/t/5924d8c4c534a50553dd2cba/1495587013156/11_Vol_18_No_03_Glanert+%26+Legrand.pdf.
    How many scholarly fields have experienced the sad fate of comparative law and continued in the grip of a demonstrably indigent epistemology for decades on end? After the early postmodernity witnessed their protracted subjection to Les Grands systèmes’s jejune analytical frameworks, breezy generalizations and meagre interpretive yield — a predicament which, implausibly, endures in countries as diverse as Brazil, France and Russia — law’s comparatists began taking their epistemic orders from Hamburg and the Hamburgher diaspora. For fifty years or so, they have been gorged on a diet of Rechtsdogmatik, scientism, objectivity, neutrality, truth and assorted shibboleths. As if these epistemic delusions were not problematic enough, the earlier, obsolete model was eventually revived though it was tweaked to focus on traditions instead of systems. While critics were occasionally moved to chastise ruderous Hanseatic knowledge-claims — some expressing their concern in conspicuous venues, others harnessing prestigious institutional affiliations — comparative law’s orthodoxy, somewhat extraordinarily, has hitherto been able to operate unencumbered by any epistemic challenge whose monographic exposition would have proved compellingly primordial and compendious. It is the great merit of Günter Frankenberg’s Comparative Law As Critique, in crucial respects an account at once capital and extensive, that it interrupts, finally, the longstanding deployment of comparative law’s mainstream epistemic imposture. Frankenberg’s refutation is thus well worth rehearsing, and the first part of this review wishes loyally to apply itself to this important re-presentative task not least by affording the author much opportunity to express himself in his own voice. Yet, Frankenberg’s considerable critical integrity notwithstanding, this essay holds that his epistemic transgression remains too diffident. Specifically, four key issues at least warranted more subversive epistemic commitments than Frankenberg allowed. In the wake of Comparative Law As Critique, the second part of this commentary therefore addresses these contentions with a view to making a case both for comparative law as strong critique and for the paradigmatic epistemic turn that has been persistently deferred within the field.

Thesis

  • BERNELIN, M. (2017). Les Sources Du Droit De La Recherche biomédicale En France Et Au Royaume-Uni, étude Comparative Du Concept De légitimité / The Regulation of Biomedical Research in France and in the United Kingdom: A Comparative Study of the Concept of Legitimacy.
    Intitulée > et dirigée par Mesdames les Professeurs Florence Bellivier et Simone Glanert, cette thèse porte sur l'encadrement de la recherche biomédicale du point de vue des modes de production des règles encadrant celle-ci, et non d'un point de vue substantiel. La recherche biomédicale est définie dans cette étude comme un ensemble de pratiques internationalisées qui ont en commun de placer au centre de leurs finalités et modalités l'embryon ou la personne humaine. En France et au Royaume-Uni, l'encadrement de ce domaine fait appel à des sources du droit diversifiées reflétant à la fois les intérêts en jeu (intérêts des malades, des chercheurs, des entreprises et des États) et l'évolution des modes d'action de l'État dans les domaines que sont la science et la médecine. Notre étude vise à exposer et éclairer les formes de légitimité de ces sources, et ce à l'aide d'une comparaison des ordres juridiques. Menée à travers le prisme du concept de légitimité, entendue comme la justification de l'autorité d'une règle en dehors de toute sanction, cette étude propose une cartographie de la dynamique du droit dans le domaine et entend donc dépasser la présentation, qui fut essentielle en son temps, du contenu de l'encadrement de la recherche biomédicale. Cette étude soulève ainsi une interrogation cruciale : au sein des démocraties, qui peut décider des modes, acteurs et objets de la recherche et du partage des risques y afférant ?
    Pour mener une telle analyse, cette thèse a retenu l'étude de quatre sources du droit illustrant chacune une dynamique d'encadrement en la matière en France et au Royaume-Uni : la loi, la jurisprudence, le droit issu des agences sanitaires ainsi que le droit international d'origine privée. L'hypothèse de travail est qu'à une diversité des sources du droit dans le domaine s'ajoute une multiplicité des socles de légitimité s'attachant à ces dernières, la comparaison entre ordres juridiques permettant de les mettre en évidence. Les développements sont alors structurés en deux parties, compte tenu d'une distinction opérée au sein des sources du droit entre les sources formelles (loi et jurisprudence) et les sources informelles (droit issu des agences sanitaires et droit international d'origine privée). L'étude souligne alors qu'en France et au Royaume-Uni, la légitimité des sources du droit de la recherche biomédicale entretient des liens étroits et parfois paradoxaux avec le concept d'État. Ainsi, la première partie de la thèse met en exergue la concurrence, au sein de l'Etat, de la légitimité de ces deux sources formelles que sont la loi et la jurisprudence. Cette concurrence est classique mais cette étude propose des pistes pour l'enrichir en se fondant sur le rôle du législateur et du juge au regard de notre l'objet : la recherche biomédicale. La seconde partie, portant sur les sources informelles du droit, souligne que tant le droit issu des agences sanitaires que le droit international d'origine privée sont revêtus de formes de légitimité qui se sont construites dans une concurrence avec l'État. Là gît le paradoxe car cette concurrence est largement artificielle. En effet, l'étude souligne que dans le domaine de la recherche biomédicale, bien qu'on puisse observer une volonté d'émancipation de la norme par rapport à l'État comme étant autonome ou extérieure à ce dernier, c'est un constat inverse qui peut in fine être dressé.

Forthcoming

  • Glanert, S. and Samuel, G. (2019). Rethinking Comparative Law. Cheltenham: Edward Elgar.
    Given globalization, transnationalism and postcolonialism, not to mention the Europeanization of laws, every law student and every lawyer is bound to encounter foreign law in the course of her or his professional life. Increasingly, legislators show themselves open to the influence of foreign legal ideas in the legislative process. Also, many appellate courts are prepared to refer to foreign law in their opinions. At least as importantly perhaps, private parties often enter into legal arrangements, such as contracts or wills, featuring a foreign dimension. In sum, nowadays, foreign law is everywhere and cannot be circumvented.

    Over the past decades, the field commonly known as ‘comparative law’, which broadly speaking addresses engagement with foreign law and the comparison of laws, has significantly expanded. The multiplication of journals, the proliferation of scholarship and the creation of courses or summer schools specifically devoted to comparative law attest to the increasing popularity of comparative law. Within the Western legal tradition, the dominant position in comparative law has long been assumed by Konrad Zweigert and Hein Kötz, two widely influential German legal scholars. For over four decades, Zweigert and Kötz’s textbook, Introduction to Comparative Law, transl. by Tony Weir, 3rd ed. (Oxford: Oxford University Press, 1998), has governed much of the research undertaken in the field of comparative law and has defined, politically and otherwise, what kind of comparative legal research is to be regarded as ‘good comparison’. Their self-styled ‘functionalist’ method, grounded on a black-letter approach to law, has proved particularly authoritative. In recent years, however, a minority of authors have mobilised cultural studies as well as economic, literary and philosophical theories with a view to highlighting the shortcomings of orthodox comparative legal theory. Undoubtedly, the application of such perspectives to the field of comparative law offers fresh and crucial insights into the theory and practice of comparative law.

    Problematically, though, even the most recent critical literature in the field still fails to address a certain number of key issues arising in comparative law. For example, the task of the comparatist is to explain, by making use of her or his language, a foreign law usually formulated in a different language. Specifically, the comparatist is frequently asked to translate various kinds of legal texts, such as treaties, statutes, judicial decisions, contracts and scholarship from one language into another. Very often, the active or passive knowledge of a foreign legal language and culture is regarded as a sufficient condition for the translation of foreign legal materials. Indeed, the vast majority of comparatists either ignore or underestimate the obstacles standing in the way of every attempt at translation even as, within translation studies, specialists have long acknowledged that, properly speaking, translation is impossible or, at any rate, that translation effectively means transformation. In a context where the question of understanding proves of the utmost importance to lawyers working on the international scene the matter of the feasibility of translation needs to be probed, whether theoretically (can it be done?) or practically (how to do it?).

    This co-authored book wishes to rethink comparative law by providing both students and lawyers with the intellectual equipment allowing them to approach foreign law in a meaningful way. The book addresses a range of topics illustrating the contemporary relevance of comparative law. Further, it heightens sensitization to the singularity of foreign legal cultures and it invites familiarization with key aspects of the common-law and civil-law traditions which have defined a significant range of legal cultures worldwide over the past centuries. Operating from an interdisciplinary standpoint, the book also offers an introduction to deconstruction, hermeneutics, linguistics and to translation studies with reference to legal interactions on the international scene. Throughout, the book uses concrete examples issuing from a number of different national laws, including Canadian, English, French, German and US law. At all times, the book prompts in-depth epistemological reflection upon the possibilities and limits of cross-border legal interaction. In this way, it clearly distinguishes itself from the available literature in the field.
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