Glossing on the history of legal German methods during a conference over "Legal reasoning and argument"

 The presentation took place on 29 November 2024 at the West University of Timisoara. Although it was held in Romanian, the video recording features captions (subtitles) in multiple languages (English, French, Italian, and Romanian). If you click on the link to YouTube, you can select the desired language.

An article about the mystery of the creative genius: the early trauma in Cioran, Nietzsche and Flaubert

 «"..., dazzling creativity does not lie in the destiny of most people, nor should it – extreme trauma in the early years is almost always involved, and a fragmentation of the soul and then a driving need to achieve wholeness appears". This is what George Atwood has to say about the creative genius. This is the door to approaching Emil Cioran's personality. 

I dedicated a paper in French to the great author at a conference about Cioran in Strasbourg, France, from June 20 to 21, 2023. I tried to elucidate the relationship between trauma and creative genius, focusing on Cioran and comparing him briefly with Nabokov and later more deeply with Nietzsche and Flaubert.

I used the instruments of psychobiography comparatively by confronting the elements of Cioran's life with George Atwood and Kyle Arnold's masterpiece psychobiography about Nietzsche.

I also used some highly relevant fragments of Sartre's mega biography (2.500 pages!) about Gustave Flaubert (L'Idiot de la Famille).

You can find more of the English version in Cioran au dela de Nietzsche and Flaubert: parallel psychobiographies by clicking on the attached link:https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4979137

Legal reasoning and argument, my new book about methods of interpretation in Germany

The above book, a first in English, comprehensively explores German legal methods of the courts. Since the legal methodology is the theory of practice, the book focused on cases (sometimes historical ones) and analyzed them from a methodological perspective.

Given the extraordinary richness of German methodological doctrine, choosing this country as the main focus was straightforward. The selected bibliography mentions the principal authors consulted. Professor Eberhard Dordorf's work is one of the most remarkable endeavors in this field. Since he was inspired by Koch and Rüßmann, a presentation of these authors is also a straightforward choice. The treaties of Larenz or Zippelius, in addition to the ones of Pawlowski, Rüthers, or Engisch, are methodological goldmines followed throughout the volume.

The book is divided into seven main sections, serving as a clear roadmap for readers. 

It begins by explaining the fundamental process of applying legal norms, including their structure, how they are expanded and applied to specific cases, and the concept of subsumption, which involves fitting a particular case under a general legal rule. It then introduces the judicial syllogism as a critical tool in legal reasoning.

The second section delves into the history of legal interpretation in Germany, tracing the evolution of different schools of thought from Savigny's canon of interpretation methods through various movements such as conceptual jurisprudence (Begriffsjurisprudenz), the School of Objective Interpretation, and the Free Law School, culminating in the doctrine of interests (Interessenjurisprudenz).

The third part explores the debate between subjective and objective interpretation systems, presenting arguments for both sides. It also proposes a potential reconciliation of the two approaches, suggesting that a balanced approach that considers both the lawgiver's subjective intentions and the law's objective meaning could be the most effective.

The following sections (IV, V, and VII) break down specific methods of interpretation: literal, subjective, and objective. Each is explored in detail, discussing its aims, structures, and applications in legal practice. The book provides examples and case studies to illustrate these concepts.

Section VI focuses on the development of law, distinguishing between interpretation and development, and exploring the concept of gaps in the law. It presents various arguments and techniques for developing law and filling legal gaps, including analogies, restrictive interpretation, and teleological reduction. The book's practical approach, rich in examples, case studies, and annexes, is designed to equip readers with tools to apply the theoretical concepts in real-world legal scenarios, fostering a deep and confident understanding of the topic.

At this moment, the book can be bought through an online order at  https://editura.uvt.ro/product/legal-reasoning-and-argument-a-handbook/ or at https://www.librarie.net/p/479679/legal-reasoning-and-argument-a-handbook?srsltid=AfmBOooUGbGyLXhz07aY5OJ_OiTCMl7Oy-TzbZWoUaEhQevyYHSRIVe7

A fragment of a class about a famous article by Brandeis regarding information privacy as "right to be left alone"

 

How to attain academic novelty in a legal article?

Everybody is striving for novelty in their academic (legal) papers.

The novelty might be linked to actuality, a new phenomenon (facts, decisions, books, etc.) with legal dimensions to be explored. Hence, an academic writer might be at first a (legal) critic of actuality. 

The danger of the approach is that such novelty is a 'fragile commodity' that 'vanishes' quickly. Also, such a topic will push different authors to write articles about it. Therefore, the importance of the message (as a distinct voice) will be lost in no time.

A much better strategy would be to search for novelty as a new legal perspective about a phenomenon.

This novelty of approach or insight is not linked to the actuality of the issue (without excluding it either). Instead, it can be reached by choosing a topic on the 'edge', by crossing borders into unexplored 'fields'.

On a deep level, crossing such an edge might imply using analogy or comparison as a heuristic. Such analogy signifies the analysis of deep, structural correspondence between two fields by examining a better-known area's relations (or relation with relations) to another, less-known domain. In cognitive sciences, the approach is called the 'mapping'[4] between the two fields[5].

More precisely, one might use an analogy from a legal field to another legal area. We can give the example of cyber-attacks dealt with by criminal law on a national level. But the problems of cyber security can be analyzed by analogy with similar instruments of International law. One might examine (speculate from an empirical ground) whether a cyberattack can be a cyber war (international law crime) and the conditions for qualified it as such. 

Comparison as a heuristic process

Another productive instrument for creating new topics is legal comparison broadly defined (within the same branches of different legal systems, or among other theories or various doctrines, etc.). By contrast, one might put in parallel components of different legal systems. 

That will automatically create a first questioning since there will be differences between compared entities, besides similarities which make comparison possible. Then, in a second moment, the researcher might examine the reason for such differences. The comparison might also create a dynamic in the paper, which would remain purely descriptive without it.  

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[1] Transatlantic answers ..., infra this blog.

[2] Professor Richard Delgado made the suggestion that legal writers should "find one new point, one new insight, one new way of looking at a piece of law and organize your entire article around that. One insight from another discipline [italics are from us], one application of simple logic to a problem where it has never been made before is all you need." Cf. Richard Delgado, How to Write a Law Review Article, 20 USF L. REV. (1986) at 449.

[3] Cyber attacks…, infra this blog.

[4] The structure-mapping theory states that an analogy between analogues A and B is a set of mappings between the two sets of predicates (relations) that represent A and B. A mapping is an alignment of corresponding parts of the source and target analogues. 

Mappings are subject to the following three rules:

1. Mappings between attributes are primarily or entirely ignored;

2. Mappings between relations, e.g., R(a0, a1) to R(b0, b1), which are emphasized where,

3. They enter into systems of relations, e.g., R_(Ra0, Ra1) to R_(Rb0, Rb1). Cf. Gentner, D. (1983), "Structure-mapping: A theoretical framework for analogy", Cognitive Science, 7, 155-170.

[5] The most spectacular use of analogies in hard sciences is the case of Kepler, one of the most creative geniuses. 

Apparently, his creativity was linked to 3 factors: frequent use of analogy, different analogues (pairs of metaphors), and attention to inconsistency. Kepler worried about inconsistencies and was driven by them to push old analogies or, sometimes, to reject them. However, apparently, these two factors play different roles. 

Attention to inconsistencies was a motivator of conceptual change. 

In contrast, the analogy was the process through which conceptual change occurred.

Cf. Dedre Gentner et al., "Analogy and creativity in the works of Johannes Kepler", in T . B . Ward, S . M . Smith, J . Vaid (Eds), Creative thought: An investigation of conceptual structures and processes (pp. 403-459). Washington DC, American Psychological Association. Mutatis mutandis can apply the same logic for an analogy between legal domains.

The deep continuity in US Trade Policy between administrations (Obama, Trump, Biden)

In May 2021, I presented to a teleconference held in Le Havre, France, a paper underlining the deep continuities between Democrat and Republican US administrations in trade policies. 

The article appeared as "Continuity and Change in US Trade Policy Towards China and Beyond" in a collective volume of  Amandine CAYOL, Hye-Hwal SEONG, Remus TITIRIGA, Pierre CHABAL (eds.) Eurasian challenges to international economic law after BREXIT and in the context of the COVID-19, Peter Lang, Brussels, visible also at https://ssrn.com/abstract=4023085

The purpose of the paper was to determine whether the disruptive trade actions of the Trump administration concerning Eurasia and China would be pursued by the Biden admin­istration.

Trump administration followed within a crescendo the antidumping and countervailing duties favoured already in the last years by President Obama.

The Trump administration also took a bolder stance in using different US legal instruments (out of WTO but not forbidden by WTO) to adopt trade sanctions against China and other countries. However, according to expert commenters, a Hillary Presidency would have also used such mechanisms, albeit under different rhetoric. 

There was also a continuity in the escalation of US actions inside the WTO from Obama to Trump, who finally blocked the Appellate Body dispute settle­ment.

Given such deep continuities, I considered that the trade war with tariffs and sanctions on China adopted by the Trump administration will remain in place for the time being under the Biden administration.

Comparison as an interpretative tool of the European Union judge

We live in a world where many legal systems interact continuously. Some of these interactions can be described as ‘legal transplants’ in-between national laws. In this way, sometimes, entire legal structures are borrowed from a foreign country. 

That was the case for the Swiss Code of Obligations, which Turkey has adopted in the 30s. In the beginning, at least, the Turkish judges may have interpreted a concept by examining its meaning in Swiss law, which implied the use of comparison between Turkish and Swiss legal systems.

Another interesting case, this time of ‘synthetic’ transplant, relates to the Civil Code of Ethiopia, designed by great comparative scholar, René David,  who took into account rules or institutions from France, Italy, Greece, Switzerland, Israel, etc. The Ethiopian judge, willing to clarify, an obscure term in the new code may have used multiple comparisons between his own system and each specific disposition's origin.

But such ‘legal transplant’ may also occur between legal systems of a different kind. For example, International Law may borrow concepts and rules from national law. The international legal scholars have played a role in this transposition since they were fed by their national legal culture. 

More recently, in many disputes of highly technical issues, the International Courts or the Arbitrators have resorted to long-established institutions from private national laws and hence use comparison in interpretation.

The most interesting 'laboratory' for such an interpretative use of comparison based on solution from national legal systems is, or more exactly was, European Union (when it was called European Community).

If this brief presentation catches the attention of the reader, he may find a still evolving draft of  about

Comparison as an interpretative tool of the international judge: the European Union case, visible at https://ssrn.com/abstract=3648866.

The first part of the paper circumscribes the meaning of comparison as an interpretative tool. A step-by-step approach clarifies the meaning of comparison in general, comparison as interpretation in particular, and realizes an overview of comparative interpretative practice by international tribunals and identifies hidden cases when the European judge employed the comparison.

The second part of the article examines the emergence of comparative interpretation in topic case-laws relating to the European Community of Steel and Carbon (ECSC) Treaty. In the 50s and 60s, there was an unseen dialogue of the doctrine, the Advocates Generals, and the European judge about interpreting the ECSC Treaty's undetermined normative concepts. The outcome of this dialogue was the occurrence of a 'standard' interpretative comparison, a multi-comparison, which was used by the European judge ever since. 

The third part of the article places this 'standard' comparison within a methodological perspective. This perspective offers the ground for 'translating,' methodologically speaking, the 'standard' comparison as a subset of the literal or grammatical interpretation belonging to an objective system of interpretation. The 'standard' comparison is strongly linked to multi-juralism (existence of many independent and parallel legal systems of Member States) and loosely linked to multilingualism (the legal use of multiple languages within EU), both essential characteristics of the European legal system.

This powerful and misunderstood tool of the judge had an essential role in the European Union's historical evolution. It may also provide hints and solutions for national or international cases where legal pluralism is at stake.