Between Theory and Method: Comparative Public Law in the Age of GlobalizationAbstract
Comparative law has gained increasing political and scientific relevance in recent decades, posing several new challenges for its theory and practice, especially regarding classic discussions about its methods and epistemological foundations. Taking this into consideration, this article aims to critically analyze the “methodological turn” in comparative public law, clarifying its epistemological stakes in the era of globalization. The hypothesis of this paper is that the “methodological turn” faced by comparative law in geographical, thematic, and theoretical-political spheres recasts and re-legitimizes the purposes of this field, giving new meanings and dimensions to its theory and methods. Instead of proposing a single new method, this article shows how methodological pluralism, geographical opening toward the Global South, and thematic expansion related to new rights-bearing actors jointly redefine what counts as justified comparative inquiry in public law. The article contributes to comparative public law and comparative legal theory, employing an analytical-critical approach, and is divided into three parts: 1. Comparative public law between dichotomous and pluralistic methodological perspectives; 2. Comparative law beyond the West: reaching the Global South; 3. New rights-bearing actors, interculturality, and interdisciplinarity. In its conclusion, the article argues that the “methodological turn” in comparative public law redefines the discipline’s identity and its justificatory standards.
Keywords
Comparative Public Law; globalization; legal theory; legal methodology; legal epistemology; Global South
Resumen
El derecho comparado ha adquirido una creciente relevancia política y científica en las últimas décadas, lo que plantea nuevos desafíos para su teoría y práctica, especialmente en lo que respecta a las discusiones clásicas sobre sus métodos y fundamentos epistemológicos. En este contexto, el presente artículo tiene como objetivo analizar críticamente el “giro metodológico” en el derecho público comparado, esclareciendo sus implicaciones epistemológicas en la era de la globalización. Este artículo sostiene la hipótesis de que el “giro metodológico” que el derecho comparado viene experimentando en las dimensiones geográfica, temática y teórico-política reformula y relegitima los propósitos de este campo, otorgando nuevos significados y dimensiones a su teoría y métodos. En lugar de proponer un nuevo método, el artículo muestra cómo el pluralismo metodológico, la apertura geográfica hacia el Sur Global y la expansión temática vinculada a la emergencia de nuevos sujetos de derecho redefinen conjuntamente qué se considera una investigación comparativa justificada en el ámbito del derecho público. El artículo contribuye al derecho público comparado y a la teoría jurídica comparada, adoptando un enfoque analítico-crítico y estructurándose en tres partes: 1. El derecho público comparado entre perspectivas metodológicas dicotómicas y pluralistas; 2. El derecho comparado más allá de Occidente: el alcance del Sur Global; 3. Nuevos actores portadores de derechos, interculturalidad e interdisciplinariedad. En conclusión, se señala que el giro metodológico redefine, en última instancia, la propia identidad de la disciplina, así como sus estándares de justificación en la actualidad.
Palabras clave
Derecho público comparado; globalización; teoría del derecho; metodología jurídica; epistemología jurídica; Sur Global
Resumo
O direito comparado tem adquirido crescente relevância política e científica nas últimas décadas, impondo novos desafios à sua teoria e prática, especialmente no que se refere às discussões clássicas sobre seus métodos e fundamentos epistemológicos. Levando isso em consideração, este artigo tem por objetivo analisar criticamente a “virada metodológica” no direito público comparado, esclarecendo suas implicações epistemológicas na era da globalização. A hipótese do estudo é que o “giro metodológico” pela qual o direito comparado vem passando nas dimensões geográfica, temática e teórico-política reformula e relegitima os propósitos desse campo, conferindo novos sentidos e dimensões à sua teoria e métodos. Em vez de propor um novo método singular, o artigo demonstra como o pluralismo metodológico, a abertura geográfica em direção ao Sul Global e a expansão temática relacionada ao surgimento de novos sujeitos de direitos redefinem conjuntamente o que conta como justificação da investigação comparativa no âmbito do direito público. O artigo contribui para o direito público comparado e para a teoria jurídica comparada, adotando uma abordagem analítico-crítica e estruturando-se em três partes: 1. O direito público comparado entre perspectivas metodológicas dicotômicas e pluralistas; 2. O direito comparado para além do Ocidente: alcançando o Sul Global; 3. Novos atores portadores de direitos, interculturalidade e interdisciplinaridade. Em conclusão, aponta-se que a virada metodológica redefine, em última instância, a própria identidade da disciplina, bem como seus padrões de justificação na atualidade.
Palavras-chave
Direito público comparado; globalização; teoria do Direito; metodologia jurídica; epistemologia jurídica; Sul Global
Introduction
Comparative law has gained increasing political and scientific relevance in recent decades. From the margins of legal science, it has come to occupy a central place in theoretical and empirical reflections on contemporary law, reshaping both legal theory and constitutional theory. In this context, Esin Örücü (2007, p. 44) emphasizes that despite its troubled formation and development throughout the 19th and 20th centuries, “in our century comparative law will reach maturity,” overcoming the stages of infancy and adolescence that, according to the author, characterized it in the past.
The “maturing” of comparative law takes shape in the broader context of globalization,1 which is not limited to the economic dimension but also involves rearticulation of political, cultural, legal, theoretical, epistemological, and academic dynamics on a global scale. This is what Anthony Giddens (1990, p. 64) defines as “the intensification of worldwide social relations which link distant localities in such a way that local happenings are shaped by events occurring many miles away and vice versa.” Law lies at the center of the processes of political and economic interdependence that drive the integration of diverse and often new actors. In this light, comparative law proves to be a highly relevant tool, functioning as a compass to navigate an ocean marked by winds that frequently blow in opposite directions (Delmas-Marty, 2016).
This new reality, however, imposes several challenges for the theory and practice of comparative law, particularly concerning classic debates on its methods and epistemological foundations. This article aims to critically analyze the “methodological turn” in comparative public law, while clarifying its epistemological stakes in the era of globalization. The “methodological turn” is understood here as a shift from the functionalist canon toward explicitly justified, plural, and reflexive methodological choices. The “methodological turn” unfolds along three intertwined axes: reconfiguration of classical dichotomies into methodological pluralism, geographical widening of the field toward the Global South, and thematic expansion toward new rights-bearing actors, which demands dialogue with intercultural and interdisciplinary approaches.
Methodologically, this article adopts a theory-driven, analytical-critical reconstruction of the methodological self-understanding of contemporary comparative public law. By “analytical-critical reconstruction,” the paper refers to a twofold operation: first, the systematic identification of the main methodological positions and their underlying assumptions; and second, a critical examination of their epistemological commitments, limits, and blind spots in the context of globalization. Rather than providing an exhaustive survey of comparative legal methods, the article seeks to clarify the normative and epistemological stakes of methodological choice and to show how methodological pluralism, geographical opening toward the Global South, and thematic expansion jointly redefine what counts as a justified comparative inquiry into public law today.
The hypothesis of this study states that the “methodological turn” experienced by comparative law across geographical, thematic, and theoretical-political dimensions recasts and re-legitimizes the purposes of the field in the era of globalization. It assigns new meanings and dimensions to comparative law theory and methods, effectively redefining its identity. The argument is developed in three parts. First, it revisits the classical debate surrounding functionalism versus contextualism to show why this dichotomy has become overstated and how methodological pluralism has emerged in response to this context. Second, it argues that the geographical opening toward the Global South operates as a sort of stress test for classical categories in comparative public law, making methodological reflexivity unavoidable. Third, it explores how the thematic expansion of public law translates pluralism into concrete methodological demands for contemporary comparative research. The conclusion highlights how the “methodological turn” changes the identity of the discipline as well as the justificatory standards of comparison.
1. Comparative public law between dichotomous and pluralistic methodological perspectives
Comparative law was established as a legal discipline at the turn of the 19th century, specifically in 1900, during the International Congress of Comparative Law held in Paris. Until then, it had been widely associated with the concept of “comparative legislation” (David, 1964), which developed primarily in 19th-century France under the aegis of legal positivism, then the dominant paradigm for analyzing legal science. However, its trajectory throughout the 20th century was marked by numerous challenges related to its recognition as a branch of legal science in various countries, prompting a series of debates about its “scientificity” and its status as either a legal “discipline” or a “mere method” (Antoniolli et al., 2024).
However, it was in the second half of the 20th century, particularly during the 1980s and 1990s, that comparative law began to gain greater prominence and recognition within legal academia and beyond. Processes of economic, political, legal, and cultural globalization, among other dimensions, directly impact law as a phenomenon, which has become fragmented into multiple new thematic areas, levels of normativity, sources of law, and theoretical and empirical approaches that reshape its understanding. It can be said that law is becoming pluralized, not only in the Western context but also in terms of how it engages with and interprets other legal orders across diverse cultures and legal traditions (Zagrebelsky, 1992; Amirante, 2022).
Globalization entails a synergistic relationship - though not always free of tension - between the local and the global, such that “the global does not exclude the local, but rather they interact in very complex, sometimes contradictory, ways” (Twining, 2000, p. 5). This interaction generates reactions at multiple levels, resulting in fragmentation, integration, differentiation, bricolage, harmonization, homogenization, transitions, and/or irreconcilable tensions within legal phenomena and systems (Walker, 2009). This emerging scenario has become particularly pronounced since the 1980s and 1990s, following the fall of the Berlin Wall, when the role of law was redefined beyond its traditional functions of regulating or standardizing. Since then, law has also begun to assign meaning and legitimize identities, transforming into a symbolic resource managed by various actors within a new geopolitics of legal norms (Bussani, 2017).
This scenario has fueled what Ran Hirschl (2014) terms the “renaissance of comparative law,” particularly when analyzing the case of comparative constitutional law. The emergence of new rights and new rights-bearing actors, alongside novel legal and institutional arrangements and the intensification of interactions among peoples and nations, has stimulated the vigorous development of comparative law (Örücü; Nelken, 2007; Glenn, 2014), especially in the realm of comparative public law. This growth is observable in at least two distinct but complementary areas: 1) the academic sphere, characterized by the consolidation and expansion of comparative law as a distinct and autonomous field of study; and 2) the sphere of legal and political practice, encompassing not only the judiciary but also the actions of other branches of government (executive and legislative) and the interventions of legal professionals.
Regarding the first area, the past four decades have witnessed a veritable boom in comparative law literature across multiple domains, particularly in comparative public law (Rosenfeld; Sajó, 2012; Pegoraro et al., 2012; Masterman; Schütze, 2019; Tushnet, 2018; Heringa, 2023), with a strong focus on new theoretical approaches (Husa, 2024) and on the methodological self-awareness, limits, and challenges of the field, including how choices regarding comparators, levels of abstraction, and purposes of comparison shape the legitimacy of comparative reasoning (Jackson, 2012). Additionally, the “Trento Theses,” which effectively function as a manifesto advocating for the scientific character of comparative law, have played a crucial role in consolidating it as a distinct discipline and area of knowledge within legal science, particularly in Western Europe, though not exclusively there.
When it comes to the second area, the establishment and strengthening of constitutional adjudication mechanisms in various regions of the world (Andenas; Fairgrieve, 2015), together with openness to international courts and legal integration processes - such as the European Union and Mercosur - have intensified legal exchange, transfers, borrowing, migration, and the circulation of legal ideas. Similarly, national and regional legislatures have increasingly engaged with new forms and methods for resolving common legal problems through dialogue with foreign and international experiences. Moreover, the executive branches of numerous countries have advanced comparative law studies to inform the formulation and implementation of public policies and legal frameworks across different areas, highlighting the practical and political instrumental value of this discipline in the contemporary context.2
In fact, studies in the legal field, particularly in comparative law, have increasingly acquired a “cosmopolitan” dimension (Twining, 2007, p. 88). Despite persistent criticism regarding comparative law and its momentum (Siems, 2007), there is also a clear effort to consolidate it as a distinct discipline and to explore new analytical perspectives (Bussani; Mattei, 2012, p. 3). In this regard, “legal comparison needs to be renewed, reformulating its identity according to frameworks and languages that can enhance it as a science capable of engaging with new interlocutors” (Somma, 2015). Within this context, the question of method occupies a central position in contemporary reflections on comparative law, representing one of the main epistemological issues influencing both its theory and practice.
Etymologically, the term method derives from Greek, combining the words “μετά” (together, or along) and “οδός” (path or way). Consequently, “method” can be understood as the “path to be followed,” the route undertaken to achieve a particular goal, implying that actions are carried out systematically in a deliberate and premeditated manner (Husa, 2011, p. 1096-1097). “Methodology,” in contrast, can be defined as an essentially interdisciplinary field of study that analyzes and systematizes the various theoretical and practical issues associated with methods.
As comparative law encounters unprecedented changes and innovations, questions arise regarding the most appropriate path to follow from a practical standpoint. Several issues emerge: Is it reasonable to assume that only methods traditionally considered classical by the discipline are suitable for this task? Are these classical methods truly capable of capturing the transformations and innovations occurring today? Do they provide the necessary tools and mechanisms to achieve this purpose? Or would it be more appropriate to develop new methods grounded in specific contexts of analysis to more effectively grasp the diverse ongoing transformations? Such questions have increasingly appeared in discussions on comparative law and in major textbooks on the subject, fostering a rich academic debate in recent decades.
The methodological development of comparative law is often characterized by what many comparatists term “methodological precariousness” (Van Hoecke, 2015; Amirante, 2014; Menski, 2009), a condition stemming from comparative law’s long-standing reputation as the “Cinderella of legal science,” as Günther Frankenberg (2010, p. 11) observes. This precariousness results from a historical neglect of methodology by comparatists, which encouraged considerable binary reductions within the field - for instance, functionalism versus contextualism, or the possibility versus impossibility of legal transplants.3 It reflects the ongoing need for symbolic negotiation regarding the nature of law and the methodological choices that comparatists should make. Methodological precariousness is particularly evident in the characterization of what may be called the methodological canon of comparative law, often exemplified by the aforementioned functionalist approach.
Functionalism is commonly described as “rule-oriented comparison” (Graziadei, 2003, p. 103) and is widely regarded as the “standard methodology” of comparative law, as well as the first methodological perspective to historically emerge in this field. Although functionalism takes various forms, the prevailing approach, theorized by Zweigert and Kötz (1996), is based on the assumption that functional similarities between different legal orders and institutions constitute the primary objects of comparison. In other words, comparatists are expected to identify similar functions to guide comparative research, focusing on the effects of individual norms when addressing common problems across different legal systems. These functions thus acquire an abstract character, as they are not limited to written norms, allowing the inclusion of case law and legal literature in the research process (Zweigert; Kötz, 1996, p. 33). Due to its broad applicability, this method has been regarded by Zweigert, Kötz, and other authors as the only adequate approach for comparative law.
The functionalist method generally consists of five steps: 1) proposing a functional question (e.g., how is legal problem X resolved?), 2) presenting the legal systems and their respective solutions to problem X, 3) identifying similarities and differences in these solutions, 4) adopting a new perspective to explain these similarities and differences, and 5) critically evaluating the findings and, at times, assessing which solution may be best (Husa, 2011, p. 1103-1104). Essentially, it involves selecting a legal issue and examining how it is addressed in two or more legal systems (Frankenberg, 2010, p. 443), underlining similarities and differences while evaluating which system acts most effectively to protect the legal interest at stake.
In this process, the analysis prioritizes the norm or institution and its function within the legal system (Gerber, 2001, p. 19), hence the term functionalism. Context plays a relatively minor role, whereas formal rules are emphasized (Husa, 2011, p. 1105), alongside the principle of praesumptio similitudinis, or the presumption of similarity between different legal systems (Zweigert; Kötz, 1996, p. 33). By focusing on the functional analysis of legal systems, the broader social, historical, or political contexts in which they were developed are simplified to make the comparison manageable. Despite criticisms of this approach, Mark Van Hoecke (2015) regards it as the most advanced methodology in comparative law to date.
With the renewed prominence of comparative law in the 1980s and 1990s, numerous attempts emerged to overcome functionalism as the methodological canon of the discipline. Several authors developed new methods and perspectives, aiming to establish themselves within emerging schools of thought in comparative law, which were either partial or radically opposed to functionalism and legal positivism. Comparative doctrine refers to these authors collectively as contextualists (Meane, 2019).
Contextualism does not constitute a single school of thought, but rather a diverse set of approaches, each offering distinct contributions to contemporary reflections on comparative law. Contextualism emphasizes not the norm itself - nor its function - but the understanding of the context in which it is formed and applied. These methodological perspectives largely challenge the orthodoxy of comparative law, representing an anti-mainstream approach par excellence (Husa, 2011, p. 1106), and seek to understand law as an expression of culture - essentially, “law as culture” (Bonilla Maldonado, 2019, 2021). Contextualism encompasses various approaches, revealing a plurality of ways to view the legal phenomenon comparatively, with a focus on difference (Curran, 1998, p. 657-658). Examples include structuralism (Sacco, 1991), postmodernism (Peters; Schwenke, 2000), postcolonial approaches to law (Salaymeh; Michaels, 2022), and critical legal studies (Mattei, 2019), among others.
One of the leading figures in contextualism, Pierre Legrand, emphasizes that “the meaning of a rule, however, is not entirely supplied by the rule itself; a rule is never completely self-explanatory. The meaning of a rule is, accordingly, a function of the interpreter’s epistemological assumptions, which are themselves historically and culturally conditioned” (Legrand, 1997, p. 114). From this perspective, law is understood as part of culture rather than as mere written norms. In this regard, the law of a given country is structurally distinct from that of any other, shaped by its formative vicissitudes, its dynamics of cultural and symbolic reproduction, its methods of resolving legal problems, and its customary norms, which collectively inscribe a “unique spiritual creation” within each national legal experience (Legrand, 1996, p. 235). This uniqueness complicates attempts to identify similar functions for comparable legal institutions across different countries.
Contextualism, therefore, is essentially critical of the main theoretical and epistemological foundations of functionalism, emphasizing that legal comparison cannot be confined to the comparison of norms or institutions and should not rely on abstract formalism. Instead, it should prioritize the analysis of context in order to understand the dynamics of law (Meane, 2022). As Günther Frankenberg (2010, p. 133) notes, “generally speaking, Legrand found more support for his contextualism and antiformalism, at least when stripped of the impossible transferability thesis,” which, in extreme interpretations, could be seen as a defense of legal isolationism or puritanism within one legal culture or tradition in relation to another. Recent scholarship has critically reformulated the functional method by arguing, for instance, that functionalism may operate less as an explanatory science and more as a heuristic tool for cross-systemic understanding, thereby making methodological self-awareness a constitutive requirement of contemporary comparative inquiry (Michaels, 2010).
Both perspectives - functionalism and contextualism - have faced various criticisms, focusing on the core aspects of each approach. Jaakko Husa (2011) observes that both methods contain internal paradoxes, which are inherent to their respective ways of structuring legal knowledge.
Beginning with functionalism, Husa identifies its paradox as the tension between theory and practice. While functionalist theory does not necessarily disregard context - and acknowledges the interrelationship between norm and context - in practice, it often fails to give equal weight to textual and contextual analysis. Classical functionalism, as theorized by Zweigert and Kötz, struggles to integrate context effectively due to its intrinsic nature as a methodological approach, which has frequently been interpreted as fundamentally “theoretical.” Nevertheless, this paradox does not preclude comparatists from reframing functionalism in a way that productively balances text and context.
The paradox of contextualism, according to Husa, is that it often lacks a clearly defined “method” comparable to functionalism and can sometimes be reduced to a “plethora of attacks against orthodoxy” (Husa, 2011, p. 1105). Thus, “the priority of alterity over that of similarity, which is what Legrand is advocating, merely reverses the conviction of orthodoxy” (Husa, 2011, p. 1105). Furthermore, an exaggerated emphasis on difference, as seen in Legrand (1996), can hinder the broader development of comparative law, since prioritizing difference may obstruct dialogue and make meaningful comparison more difficult.
Put this way, functionalism may be seen as embodying a form of methodological optimism, while contextualism could be characterized by methodological pessimism (Van Hoecke, 2004, p. 172). However, the paradoxes inherent in both methods demonstrate that these paradigms are not necessarily irreconcilable; rather, they can complement and enrich one another.4 This perspective opens the possibility of middle paths for the previously entrenched dichotomy in comparative law and creates space for developing new methods and methodological approaches that intertwine - or even transcend - these classical frameworks, thereby advancing comparative law as a discipline and field of knowledge.
It is evident that the methodological dichotomy - two “contrasting binaries” (Frankenberg, 2016, p. 5) - is often exaggerated and misleading (Ponthoreau, 2017, p. 58). In practice, the dichotomy fails to capture the complexity of a comparatist’s work in the field, where understanding both normative and contextual dimensions - text and context - is essential for a comprehensive and nuanced analysis of legal phenomena. Critical debate within comparative law has fostered and legitimized what can be described as the paradigm of methodological pluralism (Samuel, 2014), which encourages the reconsideration of traditional tools for legal comparison and acknowledges the legitimacy of multiple approaches (Ponthoreau, 2017, p. 54).
Within this context, one can speak of a “methodological turn,” in which classical methods are not discarded but are instead reconfigured in dialogue with integrated approaches and new methodological perspectives. Three key elements characterize this new paradigm. First, the method must be explicitly addressed in all comparative law studies. It is no longer considered an implicit aspect of research; rather, the comparatist must clearly define, justify, and demonstrate the methodological path being followed.
Second, there is recognition that no single standard method exists (Meane, 2022). While functionalism continues to influence much of comparative legal research and retains historical significance, the paradigm of methodological pluralism precludes it from being regarded as the sole or standard method. This aligns with the broader context of legal sciences, where consolidated methodological theories and standards are generally lacking (Jaluzot, 2005). Nevertheless, the absence of a standard method does not imply methodological anarchy; instead, it allows for deliberate and reasoned pluralism that can adapt to the specific aims and contexts of comparative legal research.
The third element of the methodological turn concerns the recognition of flexibility as a constitutive feature of comparative law (Husa, 2011). This recognition empowers the comparatist to exercise creativity, reworking, reestablishing, or integrating existing methods, and even developing entirely new methodological approaches capable of addressing the complexity of contemporary legal phenomena - marked, as previously emphasized, by legal globalization. Flexibility does not simplify the study or practice of comparative law; rather, it complicates it, requiring the comparatist to possess a broad and nuanced understanding of available methods and approaches, so as to employ theoretical and methodological assumptions effectively in practical research.
Bauman’s metaphor (2000) of the transition from a solid to a liquid world aptly captures this shift. Moving from the rigidity of a single method and entrenched functionalism versus contextualism dichotomy, comparative law now exists in a “liquid phase,” in which its methodological liquidity enables adaptation to the complex arrangement characteristic of contemporary law and legal theory. This liquidity diminishes rigid structures and certainties - transcending the grand narratives of earlier periods - while providing the conceptual space for constructing new paradigms, reflecting critically on existing methods, and redefining modes of analysis.
The “methodological turn” extends beyond traditional debates on method, contributing to what can be termed a “cognitive opening” in at least three dimensions. First, the geographical dimension highlights the increasing necessity of legally understanding regions traditionally referred to as the Global South. Second, the thematic dimension emphasizes the exploration of novel topics within comparative law, historically marginalized in mainstream scholarship, as well as new approaches and new rights-bearing actors in this regard (Meane, 2019). Third, the theoretical-political dimension advocates methodological and epistemological pluralism as a lens through which legal realities can be analyzed and interpreted comparatively, reinforcing the discipline’s capacity for both critique and innovation.
2. Comparative law beyond the West:5 reaching the Global South
In one of his best-known works, Werner Menski (2007) highlights the need to study and understand legal systems beyond Europe. According to him, non-European legal systems appear “inherently more attuned than Western legal systems and scholars to the intellectual and practical challenges of comparative law and legal pluralism” (Menski, 2007, p. 147). Engaging in the study and comparative analysis of these systems can foster significant innovations in comparative law, both theoretically - through the formulation of new theories and methodologies - and practically - when considering potential legal transplants that may emerge from such analyses.
Comparative law is, in fact, a “Western product,” having originated and developed primarily in Western Europe and only later gaining a relative presence in the legal academia of the United States of America. This trajectory has resulted in a dominant focus on European legal systems and an exponential growth of “intra-European” or “Euro-Atlantic” comparisons. Consequently, most comparative law textbooks remain confined to the study of European countries such as the United Kingdom, France, Germany, Italy, and Spain, while occasionally including references to the United States of America, Canada, and the Nordic countries. As a result, the methods and theories developed in this tradition are largely shaped by the legal thought and conceptual frameworks of these geographical regions.
However, structural changes in global geopolitics since the 1980s and 1990s have made it necessary to adapt comparative law to a new global landscape. The profound transformations of the latter half of the twentieth century - such as the processes of decolonization in Africa and Asia and the intensification of globalization - require a broader perspective on law, one that transcends Western geographical boundaries in order to grasp the complexity of today’s legal phenomena, which are increasingly marked by “mixed experiences” (Glenn, 2014), exchanges, and interactions among diverse elements. As Esin Örücü (2004) points out, non-European legal systems must occupy a legitimate place in the global tree of law.
It should be noted, however, that the very concept of Europe must be qualified when referring to comparative law studies on the continent. It is more accurate to speak of Western Europe, encompassing most of the countries that historically played a colonizing role in the Americas, Africa, Asia, and Oceania. By contrast, much of Eastern Europe - including Russia and the countries that fell behind the former “Iron Curtain” - is frequently excluded from comparative studies and often deemed irrelevant by comparatists. Such exclusion reflects a limited and Eurocentric vision of comparative law, one that disregards the richness and diversity of the legal systems of Eastern Europe and, more broadly, of the Global South.
The current stage of international development demands a recalibration of the geopolitics of comparative legal knowledge (Bonilla Maldonado et al., 2010) to reflect an increasingly multipolar world, characterized by the erosion of an international order long dominated by Western countries (Stuenkel, 2016). The emergence of new political arrangements and processes of economic integration - such as the BRICS6 - has significantly reshaped legal debates both internationally and domestically. This shift requires assigning greater weight to the Global South within the field of legal comparison. Recent scholarship in comparative law has accordingly turned its attention toward the Global South, shaping new avenues of research and innovation in this part of the world.
In this regard, Philipp Dann, Michael Riegner, and Maxim Bönnemann (2020) identify a “Southern turn” in comparative law, particularly within comparative constitutional law. This development signals a pluralization of theoretical and empirical debates, aiming to overcome the parochialism that has historically shaped epistemology and legal practice through its focus on intra-Western comparisons. The transformation complicates the relationship between text and context, rendering the study of comparative law more dynamic and provocative by challenging many of the assumptions that have underpinned its formation throughout legal modernity. For comparative public law, this shift is especially relevant, as many Global South constitutional systems combine fundamental rights catalogs, institutional experimentation, and legal pluralism, thereby pressure-testing Eurocentric or Euro-Atlantic assumptions about core categories such as the state, legality, and comparability. From this, at least four implications of epistemological openness in geographical terms can be identified for comparative law: 1) advancing the understanding of legal hybridity; 2) incorporating the idea of scale; 3) relativizing major legal dichotomies; and 4) developing new theories of comparative law.
The first implication concerns the epistemological openness fostered by geographical expansion. Analyzing law within geographical contexts that have historically been understudied - and comparing them with other contexts - entails, in effect, an epistemological openness toward legal pluralism. This perspective acknowledges that law is not necessarily produced and applied exclusively by the political dynamics of the state in a secular manner. Instead, it may emanate from other sources of authority, which are responsible for its application and for ensuring its effectiveness. Such a view challenges the conventional state-centered understanding of law and enables a more comprehensive and inclusive conception of the legal phenomenon. It recognizes the coexistence of diverse forms of normativity and legal systems that operate harmoniously within different societies.
Research in the field of legal pluralism7 has demonstrated the existence of multiple ways of understanding and practicing law, even within the boundaries of nation-states. A particularly illustrative example is the case of Indigenous peoples in various parts of the globe - alongside other distinct ethnic groups - who develop and apply an Indigenous conception of law (Glenn, 2014), grounded in their own traditions and epistemologies. Expanding the geographical scope of comparative law, therefore, requires an appreciation of the dynamics of legal hybridity, underscoring that law is far more diverse than the modern, homogenizing conception historically exported by Western countries.
The second implication relates to the incorporation of the idea of scale (Van Hoecke, 2015). This entails overcoming the entrenched dichotomies of comparative law to better grasp the theoretical and empirical realities of other legal models and systems. Classic dichotomies - such as common law versus civil law - do not necessarily map onto legal contexts beyond the West. This highlights the need to rethink and reframe these categories, fostering the development of neologisms and new legal concepts that are more attuned to non-Western contexts and that enable their more accurate understanding, without falling into a form of acculturation or the imposition of a particular legal culture.
In this context, the idea of scale helps us to understand that the legal world does not unfold in simplistic black-and-white matrices, but rather in the shades of gray that characterize each legal experience - particularly those considered more “exotic” (Meane, 2016). As a methodological resource, it provides a valuable tool for capturing the diversity and plurality of legal experiences in a globalized world marked by constant exchanges - including the circulation of “legal ideas” - and profoundly influenced by international law and new forms of law that have emerged in recent decades, such as European law.
The third implication is closely linked to the second and concerns the relativization of the major categories of law. For at least two centuries, the legal categories that became globalized have been deeply tied to Western traditions and to Western ways of conceptualizing law (Bussani, 2017). Analyzing the Global South from the perspective of comparative law therefore requires both the creation of new categories and the re-examination of categories historically consolidated within the discipline. This does not mean abandoning or discarding older categories; rather, it entails recontextualizing them in light of new realities.
The fourth implication relates to the contribution that epistemological and geographical openness in comparative law can make to legal theory itself (Örücü, 2004). Legal theory, as it has traditionally developed, has been shaped by the dogmas of Western law and has centered primarily on the study of major Western legal systems: France, Germany, the United Kingdom, and the United States of America. Expanding the geographical scope of analysis to include Eastern Europe, Latin America, Africa, Asia, and Oceania inevitably introduces new theoretical inputs for rethinking not only the framework of comparative law but also the very foundations of legal theory.
Understanding the function, structure, and context of law in these diverse regions broadens the horizon of theoretical and practical problems currently facing law. It provides a basis for developing new legal theories capable of revising and updating “traditional legal theory”, thereby enriching modern legal science. Comparative law beyond the West thus contributes directly to - and complicates - the work of legal theory. A perspective confined exclusively to Western countries becomes increasingly inadequate, as it neglects the vast majority of the world’s legal experiences.
Ultimately, these four implications demonstrate, first, the need to broaden the geographical horizons of comparative law beyond the countries traditionally analyzed, and second, the positive impact that such an expansion can have on both comparative law and legal theory as a whole. Breaking down geographical barriers and moving comparative law beyond the confines in which it has historically been situated requires equipping comparatists with new tools - whether in terms of substantive knowledge, contextual awareness, or even linguistic competence - in order to interpret more profitably the new spaces in which law is analyzed and to assess their theoretical and empirical implications.
3. New Rights-Bearing Actors, Interculturality, and Interdisciplinarity
The second dimension of the “methodological turn” in comparative law relates to the thematic perspective. This concerns the expansion of the topics addressed by comparatists, which now extend beyond the classical subjects of public law - such as constitutionalism, forms of state and government, and fundamental rights. As new rights are progressively recognized, shaping new dimensions of both fundamental and human rights (Bobbio, 2014), and as novel political and institutional structures are established through legal instruments, the field of analysis available to the comparatist broadens considerably.
This thematic openness is directly linked to the intertwining of comparative law with interdisciplinarity and interculturality. Both represent frontiers of contemporary legal knowledge and are closely related to the complexity that characterizes the study of law today (Morin, 2004), as well as to the challenges that legal science faces in the era of globalization. Research in law - particularly in comparative law - is increasingly shaped by interconnections, unpredictability, porous boundaries, and innovations within legal orders (Murray; Webb; Wheatley, 2018, p. 4).
Interdisciplinarity, while possessing a long intellectual history (Klein, 1991), has emerged as a new epistemological paradigm. It rests on overcoming the Cartesian logic of compartmentalizing knowledge into discrete disciplines, instead seeking integration to provide a more comprehensive understanding of complex realities. This approach implies bringing together perspectives, theories, and methods from multiple disciplines, thereby enriching and complicating the study of the chosen object of analysis. Interdisciplinarity transcends the limits of isolated disciplines, generating integrations and hybridities between forms of knowledge and creating bridges across epistemic traditions (Frodeman, 2017).
In this sense, interdisciplinarity is not merely an academic reflection on the theoretical, methodological, and epistemological aspects of knowledge integration. Rather, it functions as a theoretical tool with practical purposes, seeking to address diverse societal problems through the integration of knowledge. When asking “what is the problem that interdisciplinarity seeks to solve?”, Robert Frodeman argues that it is the problem of politics, democracy, and technocracy. He emphasizes that “interdisciplinarity is a bridge between academic sophists and the rest of society,” adding that it aims “to figure out how to relate disciplinary expertise to the needs of the community while protecting academics from undue harm” (Frodeman, 2017, p. 8).
Within this framework, the need to incorporate interdisciplinarity into research projects and practical interventions in comparative law is growing considerably. This reflects a demand to understand objects of analysis from multiple perspectives and through innovative methodological approaches. Interdisciplinarity arises as a response to the increasing complexity of society and the practical and theoretical challenges currently faced both by entire societies and by specific groups. Ultimately, it proposes a reformulation of the process of knowledge production, expanding the possibilities for academic, political, and legal intervention in society.
In the legal sciences, interdisciplinarity remains underexplored, even though “comparative law is assumed to be, by its very nature, necessarily and genuinely interdisciplinary” (Husa, 2022, p. 1).8 Nevertheless, interdisciplinary studies in comparative law are far from simple. They require skills that jurists often do not possess or are not trained to develop - for instance, theoretical and methodological knowledge from other disciplines such as sociology, political science, anthropology, and economics, as well as competencies that extend beyond the social sciences (Husa, 2022). Additionally, they demand linguistic proficiency in multiple languages, which further complicates the task.
Despite the risks and assumptions associated with interdisciplinarity, several comparative law scholars emphasize its potential. Giuseppe Bellantuono argues that “comparative legal studies need to develop deeper connections with non-legal disciplines, and this integration between comparative law and interdisciplinarity may address policymakers’ demands in all phases of the policy cycle” (Bellantuono, 2016; Bellantuono, 2023). In addition, he identifies two further contributions of interdisciplinary comparative law: first, the need to cultivate deeper connections within the boundaries of legal disciplines themselves - such as international, constitutional, environmental, and civil law - and second, the usefulness of interdisciplinarity not only in the formulation of public policies but also in their implementation and in other legal domains, especially in the field of judicial decision-making.
Interdisciplinarity thus reveals itself as a mechanism available to the comparatist, to be employed according to the demands and complexity of the research. It inaugurates a new way of understanding and practicing comparative law. Closely related to interdisciplinarity is another challenge for contemporary legal knowledge: interculturality. Understanding interculturality in law requires beginning from the assumption that law is a cultural expression (Bonilla Maldonado, 2019), the product of diverse cultural dynamics within the nation-state and a phenomenon immersed in multiple cultural layers and global interactions.
Catherine Walsh (2008) explains that the term interculturality entered the vocabulary of culture theory in the 1980s, initially formulated in Mexico in the context of educational policy, with the goal of promoting “intercultural bilingual education.” Since then, interculturality has been assimilated as a framework for the political and legal management of cultural pluralism in several countries,9 particularly in Latin America, and more recently in European policies as well.10 Walsh (2010, p. 122) emphasizes, however, that “since its inception, interculturality has meant a struggle in which issues such as cultural identification, law and difference, autonomy and nation have been in permanent dispute.” She stresses that the concept carries a strong political and legal dimension and can be conceived as a method of accommodating cultural difference, as it facilitates understanding between two or more cultures or epistemologies - even when such encounters may seem challenging. Ultimately, interculturality constitutes a proposal that promotes harmonious coexistence among cultural differences, making possible the realization of equality within diversity.11
In the 21st century, the proposal of interculturality has been politically articulated as an “ethical-political project of transformative action and radical democracy,” as emphasized by the Peruvian jurist Fidel Tubino (2005, p. 122). This conception relates to the need to reflect critically on interculturality both as a political methodology - a procedural ideal - and as a democratic paradigm - a substantive ideal - within contemporary constitutional states. According to Tubino (2005, p. 123), when understood as a normative project, interculturality establishes relationships between different cultures through the creation of common bonds, insofar as the state and civil society share responsibility for promoting spaces of positive interaction that enable dialogue, mutual recognition, cultural exchange, cooperation, and peaceful coexistence. This constitutes one of the central challenges for law and politics in the 21st century.
In this sense, interculturality is realized through intercultural dialogue. Boaventura de Sousa Santos conceptualizes this dialogue through the notion of “diatopic hermeneutics,” which consists of a mutual effort to understand the perspectives and epistemologies of different actors situated in a “border zone” - with one foot in their own culture and the other in the culture of the other. For comparative law to be effective - and not reduced to the mere reproduction of foreign legislation - it must incorporate this notion as a fundamental premise. To analyze legal cultures productively requires an immersion in the diverse aspects that constitute them, which, in turn, can generate a critical reflection on the foundations of one’s own legal culture.12
From this perspective, intercultural dialogue among legal cultures emerges as an appropriate methodology for understanding the flows and circulations of legal models worldwide, aimed at fostering processes of “intercultural translation” that sustain legal flows in multiple ways. It should be acknowledged, however, that such dialogue is not always possible - particularly due to the historical and ongoing rationale of political and economic colonization, which has imposed, and in certain contexts continues to impose, uniform models of law and politics. Even so, intercultural dialogue remains a promising approach to better understand the paths taken by legal norms across the globe and the ways in which they are adapted, resisted, or transformed.
Dialogue, therefore, must be intercultural to be effective in translating assumptions and in determining which legal elements need to be transformed, rejected, adapted, or reformulated by the receiving state during processes of circulation. Moreover, such dialogues must take place between legal cultures and not merely between legal systems. As Jaakko Husa emphasizes, the notion of legal culture recognizes and incorporates the importance of legal context: law must be situated within the broader cultural framework to be properly understood by scholars. This context encompasses the traditions, ideological elements, and conceptions that shape a particular society and, consequently, its legal practices. Thus, the reference to legal culture - rather than simply legal system - signals a comparative approach that seeks to grasp law more deeply, beyond the analysis of written legislation or judicial decisions (Husa, 2015, p. 3-5).
This form of intercultural dialogue must rest on the same assumptions that guide any intercultural process in the social or political domain. As a method, it can be applied across different analytical levels and scopes, depending on the purpose of the comparison and the degree of openness of one legal culture to another. In this light, intercultural dialogue may serve: 1) in academic terms, to enhance mutual understanding of diverse legal systems; 2) in practical terms, to facilitate legal transplants, the migration of legal ideas, processes of hybridization, harmonization, integration, and legal borrowing; and 3) in both academic and practical terms, to generate exchanges capable of genuinely enriching and transforming two or more legal systems and/or cultures. Although this last outcome is more difficult to achieve, since it depends on contingent historical, political, and social factors, it can be regarded as the principal practical result of this methodological proposal.
Intercultural dialogue between legal cultures also provides a way of advancing - and to some extent overcoming - the well-known debate between Watson (1974) and Legrand (1997). In a globalized world characterized by the circulation of ideas, peoples, goods, and legal norms, it would be misleading to claim, as Legrand does, that legal transplants are categorically impossible - an assertion that, in fact, validates Watson’s argument. At the same time, it is equally clear that such transplants are far from easy and require intercultural dialogue to prevent them from degenerating into mere impositions within a broader process of “legal acculturation,” that is, the erosion of the foundational assumptions of a given legal culture - precisely the risk highlighted by Legrand. Thus, intercultural dialogue enables a middle ground in which elements of both theories are recognized, while opening a more nuanced understanding of the complexities involved in the circulation of law.
Intercultural dialogues between legal cultures necessarily involve a process of cultural translation, whose main objective is to identify equivalent elements across different legal systems and thereby render otherwise unfamiliar legal concepts and institutions intelligible. As Paul Ricoeur (2001, p. 135) observes, translation “respects differences, while seeking equivalences,” a dynamic that enables intercultural dialogue to unfold in a fair and meaningful way. Within this framework, intercultural dialogue may stimulate processes of creolization (Delmas-Marty, 2019, p. 5) of both legal cultures and law itself, functioning as a mechanism of métissage between different traditions. Such a process demands genuine reciprocity between the cultures involved. Although the full realization of this outcome is difficult to achieve, in certain contexts it can be fostered through sustained practices of intercultural dialogue and translation.
From this perspective, interculturality emerges as a methodological tool available to comparatists, privileging understanding over prejudice, openness over closure, and dialogue over monologue. It advances a mode of comparison that seeks to translate meanings across cultural and legal boundaries rather than merely imposing them. Beyond striving for clarity and mutual intelligibility in the interpretation of foreign legal elements - an “intercultural legal translation” carried out by the comparatist - this approach also has the potential to generate fertile exchanges between legal cultures, enriching both sides of the encounter.
In conclusion: comparing apples with oranges
Epistemological openness, whether in geographical or thematic terms, poses the challenge of comparing what many comparatists have traditionally deemed “incomparable,” a task often caricatured as comparing “apples and oranges,” as Mathias Siems (2014) notes. The historical development of modern comparative law was largely anchored in the study of what appeared “similar,” privileging a small number of reference jurisdictions located primarily in the Global North. Expanding the geographical scope of comparison, therefore, raises anew the problem of comparability between legal systems and cultures that differ substantially in their historical, social, and institutional contexts.
Gerhard Dannemann rightly observes that “there is no point in comparing what is identical, and little point in comparing what has nothing in common” (2006, p. 384). The task of the comparatist, then, lies in identifying points of connection - and of disconnection - between distinct legal experiences, as well as the opportunities for exchange and mutual learning that such comparisons may generate, both theoretically and practically. This requires attention not only to similarities but, more importantly, to differences, and to the productive insights that can emerge from them.
The pursuit of balance between similarities and differences is inseparable from the research objectives defined by the comparatist, as Dannemann also emphasizes.13 A clear articulation of these objectives provides the analytical framework for determining which aspects of epistemological openness must be engaged and whether similarities or differences should be foregrounded. Importantly, divergences between legal systems and legal cultures should not be seen as obstacles to comparative research, but rather as invitations to exploration, albeit with careful methodological and theoretical attention.
This demonstrates that comparing only what is equal or similar cannot be the sole option available to the comparatist. Comparative law must also dare to compare apples with oranges, or even apples with mangoes, and mangoes with oranges. This is precisely the provocative proposal advanced by Dann, Bönnemann, and Herklotz (2016), who explore an unusual yet fruitful comparison between the Indian federal constitutional system and that of the European Union. To guide this type of inquiry, the authors outline three methodological orientations: 1) vertical comparisons must engage with what has been termed, in the context of the EU, “the problem of translation”; 2) functional methods may be usefully employed when comparing India and the EU, though only with appropriate caution; and 3) structuring a comparative inquiry around functional equivalents can serve as a productive starting point, provided it is complemented by a thorough contextual analysis (Dann; Bönnemann; Herklotz, 2016, p. 7-8).
Such efforts point toward the necessity of formulating a renewed theoretical-political project for comparative law. The current methodological turn in the field is not merely technical, but reflects a profound reorientation of its epistemological premises and its political role. It represents a paradigmatic transformation: comparative law moves away from Eurocentric, formalistic, and essentially descriptive approaches and assumes a critical, plural, and contextualized function.
This transformation entails both an epistemological shift and a political reorientation. The epistemological shift consists of overcoming methods based solely on the synchronic comparison of formal norms, advancing instead toward approaches that integrate history, sociopolitical contexts, legal culture, and transnational legal interactions. It represents a reflective and critical stance toward the role of comparative law in the present stage of late globalization. The political reorientation, in turn, involves a move away from comparative law as a tool for reaffirming dominant legal models, positioning it instead as a field capable of challenging power relations and recognizing multiple legal modernities. In this sense, methodological choices are never neutral: they are embedded in contexts and shaped by power dynamics.
From this perspective, “comparing apples with oranges” is no longer a methodological impossibility but rather a fitting metaphor for the contemporary transformation of the discipline. We are invited to move beyond mere theorization and engage in effective comparison, recognizing that the vitality of contemporary comparative law lies precisely in its capacity to grapple with the diversity, complexity, and tensions of the global legal order. The “methodological turn,” therefore, does more than expand the field’s analytical repertoire: it redefines the very identity of comparative law, positioning it as a space of critical dialogue between legal traditions, capable of building bridges between distinct realities without dissolving their singularities.
By way of conclusion, this process entails a shift in the justificatory standards that currently underpin the discipline. Method is no longer treated as an implicit dimension of comparative legal research, but rather as an explicit component in which the comparatist must justify the research design choices made in each study. Likewise, functionalism may still be employed as a viable approach, provided that it is understood in light of the critical revisions it has undergone in recent years and in synergistic dialogue with contextualist perspectives. Moreover, the recognition of the role of the Global South in the contemporary geopolitics of law, together with the emergence of new rights-bearing actors, shows that interculturality and interdisciplinarity are now required competencies for comparatists in the age of globalization.
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