
Contents
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1. Politics of Comparisons 1. Politics of Comparisons
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2. Over-comparisons 2. Over-comparisons
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2.1. The Nature of a Legal Transition 2.1. The Nature of a Legal Transition
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2.2. Judiciary in a Legal Transition 2.2. Judiciary in a Legal Transition
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2.3. Methodological Aspects: External Inspiration and Authority 2.3. Methodological Aspects: External Inspiration and Authority
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a) Purposive Reasoning and the Logic of Legal Revolutions a) Purposive Reasoning and the Logic of Legal Revolutions
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b) Comparative Arguments and Appeals to External Authority b) Comparative Arguments and Appeals to External Authority
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2.4. Institutional Aspects: From Revolutionary Tribunals to Regular Supreme Jurisdictions 2.4. Institutional Aspects: From Revolutionary Tribunals to Regular Supreme Jurisdictions
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2.5. Of Law Importation and Temporal Colonies 2.5. Of Law Importation and Temporal Colonies
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3. Non-comparisons 3. Non-comparisons
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3.1. Superiority, Exclusivity, and Political Closures 3.1. Superiority, Exclusivity, and Political Closures
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3.2. The American Deviation 3.2. The American Deviation
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a) The Parameters a) The Parameters
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b) The (Substitute) Problem b) The (Substitute) Problem
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c) The Escalation c) The Escalation
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d) The Outlook d) The Outlook
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14 The Deviations: Political Over- and Non-comparisons
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Published:August 2013
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Abstract
The chapter seeks to conceptualize the deviations from the normal tolerant openness towards comparative inspiration established legal systems generally demonstrate. The first part of the chapter describes such deviations and their origins. In the second part, a recent instance of over-use of comparative inspiration is examined: the role comparative arguments and above all comparative rhetoric played in legal transitions in Central Europe. In the third part, examples of non-uses caused by political system closures are given. In particular, the currently extensively debated uneasy position of the use of foreign law in the US courts is discussed, in particular with respect to one question: why is it that the debates on the subject of the use of foreign law in the US courts have become so heated and, in a way, pathological?
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