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Quelques impressions sur la comparaison juridique en France : Une croissance inorganique et sous-théorisée

Abstract : The contemporary situation of legal comparison in France is as follows. Legal disciplines continue to be organized according to a trifurcation between private law, public law and legal history. Comparative law does not appear on the institutional stage as a discipline with its own curricula, diplomas and appointments. The teaching of comparative law remains marginal in the students' academic training. Nevertheless, in the current context of legal globalization, several diplomas and research centres which are specifically dedicated to comparative law appear. A specific scientific production consequently emerges. But for the moment comparative law cannot be regarded as a scientific community or a really autonomous discipline. Significantly, there is not any strong debate about the object and the method of legal comparison. The very few considerations about these topics in textbooks mostly consist in unoriginal developments (science v. method, macrocomparison v. microcomparison, comparative law v. study of foreign laws, etc.). These are totally disconnected from the way international literature ponders today over the intellectual operation which is involved in the comparative activity. This epistemological limit results both several causes: the inexistence of a genuine comparative community which could be organized according to various intellectual trends, the general weakness of French reflection in the field of legal theory, the low degree of interdisciplinarity in French universities, the technically-minded tradition for which comparative law is a means to export the French legal system abroad. Comparative scholars who work in France can be roughly classified in five categories: those who are the most connected to the international debate adopt the perspective of global law, which supersedes usual distinctions (public law v. private law, domestic law v. international law, etc.); a second group insists on the importance of legal cultures in order to understand and compare legal systems; others produce truly comparative works without caring much for methodological questions; a fourth group conceives of comparison as the juxtaposition of national case studies; a last group remains faithful to René David's method of 'major legal systems'. A reflection on the scope, object and method of comparison is necessary. It must not aim at the victory of any orthodoxy, but at the identification of a multiplicity of ways to approach legal comparison, the presuppositions, results and limits of each need to be clarified.
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Guillaume Tusseau. Quelques impressions sur la comparaison juridique en France : Une croissance inorganique et sous-théorisée. Annuario di diritto comparato e di studi legislativi, 2013, pp.429 - 445. ⟨hal-03399515⟩



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