Ralf Michaels

Bio: Ralf Michaels is an academic researcher from Max Planck Society. The author has contributed to research in topics: Comparative law & Public law. The author has an hindex of 18, co-authored 131 publications receiving 1709 citations. Previous affiliations of Ralf Michaels include Harvard University & University of Toronto.

Global Legal Pluralism

Abstract: Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines—comparative law, conflict of laws, public international law, and European Union law—have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism—the definition of law, the role of the state, of community, and of space—are altered under conditions of globalization. It addresses interrelations between different legal orders and various ways, both theoretical and practical, to deal with them. And it provides an outlook on the future of global legal pluralism as theory and practic...

The Functional Method of Comparative Law

Abstract: The functional method has become both the mantra and the bete noire of contemporary comparative law. The debate over the functional method is the focal point of almost all discussions about the field of comparative law as a whole, about centers and peripheries of scholarly projects and interests, about mainstream and avant-garde, about ethnocentrism and orientalism, about convergence and pluralism, about technocratic instrumentalism and cultural awareness, etc. Not surprisingly, this functional method is a chimera, both as theory and as practice of comparative law. In fact, "the functional method" is a trifold misnomer: There is not one ("the") functional method but many, not all methods so called are functional at all, and some projects claiming adherence to it do not even follow any recognizable method. This paper first places the functional method in a historical and interdisciplinary context, in order to see its connections with, and peculiarities opposed to, the debates about functionalism in other disciplines. Second, it tries to use the functionalist method on the method itself, in order to determine how functional it is. This makes it necessary to place functionalism within a larger framework - not within the development of comparative law, but instead within the rise and fall of functionalism in other disciplines, especially the social sciences. Thirdly, the comparison with functionalism in other disciplines enables us to see what is special about functionalism in comparative law, and why what would in other disciplines rightly be regarded as methodological shortcomings may in fact be fruitful for comparative law. This analysis leads to surprising results. Generally, one assumes that the strength of the functional method lies in its emphasis on similarities, its aspirations towards evaluation and unification of law. Actually, the functional method emphasizes difference, it does not give us criteria for evaluation, and it provides powerful arguments against unification. Further, one generally assumes that the functional method does not account sufficiently for culture and is reductionist. However, the functional method not only requires us to look at culture, but also enables us, better than other methods, to formulate general laws without having to abstract from the specificities. The problem is that the functional method, as generally described, combines a number of different concepts of function: an evolutionary concept, a structural concept, a concept focusing on equivalence. The relation between these different concepts within the method is unclear, its aspirations therefore unrealistic. If we reconstruct the method plainly on the basis of functional equivalence as the most robust of the three concepts of function and emphasize an interpretative as opposed to a scientific approach, we realize that the functional method can make fewer claims, but at the same time is less open to some of the critique voiced against it. In short, the functional method is strong as a tool for understanding, comparing, and critiquing different laws, but a weak tool for evaluating and unifying laws. It helps us in tolerating and critiqueing foreign law, it helps us less in critiquing our own.

Comparative Law by Numbers? Legal Origins Thesis, Doing Business Reports, and the Silence of Traditional Comparative Law

Abstract: The legal origins thesis -- the thesis that legal origin impacts economic growth and the common law is better for economic growth than the civil law -- has created hundreds of papers and citation numbers unheard of among comparative lawyers. The Doing Business reports -- cross-country comparisons including rankings on the attractiveness of different legal systems for doing business -- have the highest circulation numbers of all World Bank Publications; even critics admit that they have been successful at inciting legal reform in many countries in the world. Yet, traditional comparative lawyers have all but ignored these developments. The first purpose of this essay is to introduce the legal origins literature to traditional comparative law and to show important connections to the traditional themes of our discipline. A second purpose is to examine both what particular critique of this literature emerges from the knowledge of traditional comparative law and where traditional comparative law itself can learn from this literature. A third purpose, finally, is to consider the continuing relevance of comparative law. Will it be replaced by economics and statistics? Or is there a value specific to comparative law that cannot be supplanted?

The Re-State-Ment of Non-State Law: The State, Choice of Law, and the Challenge from Global Legal Pluralism

Abstract: Should choice of law norms ever designate non-state norms as applicable law? The question is not new of course, although it is seldom discussed systematically. Yet the question moves from the periphery to the center once we view conflict of laws through the lens of globalization. If, through the lens of globalization, states and non-state communities both create norms, this should pose a challenges to conflict of laws rules that traditionally only designates state norms as applicable law. Somewhat surprisingly, conflict of laws and global legal pluralism rarely meet, so far, in analyses. This paper does not set out its own theory of conflict of laws for global legal pluralism. Instead, its goal is more modest: to attain conceptual clarity about the encounter of pluralism and conflict of laws that would make such a theory possible. To this end I ask four questions: First, what is global legal pluralism, and to what extent can the normative orders created by non-state communities be considered as "law" from a theoretical standpoint? (II.) Second, how does state law, including conflict of laws, currently deal with non-state normative order? I will show that the rejection of non-state law by traditional conflict of laws doctrine must be understood in combination with the other methods the state uses to account for non-state normative orders which I call incorporation, deference, and delegation. The combination shows that the state does acknowledge non-state normative orders, but it does not acknowledge them as law. (III.) This leads to the third question, namely why the state acknowledges the laws of foreign states as law while denying this status to non-state normative orders. The reason is that the state would otherwise undermine its own position: while treating foreign state law as law strengthens its position, treating non-state law as such would weaken it (III.C.). (IV.) Of course, such weakening of the state need not be a bad thing, and the fourth question therefore asks what a more inclusive approach to conflict of laws, recognizing non-state normative orders as law, would require and imply. This fourth question cannot be answered in full here, but I try to show that such a reconceptualization of the state would be more far-reaching, and potentially less attractive, than proponents of legal pluralism may wish for (V.). I conclude with a cautionary note: the relation between global legal pluralism and conflict of laws is more complex, and may necessitate more radical rethinking of traditional ideas, than one might think (VI.)

The Functional Method of Comparative Law

Abstract: The functional method has become both the mantra and the bete noire of contemporary comparative law. The debate over the functional method is the focal point of almost all discussions about the field of comparative law as a whole, about centers and peripheries of scholarly projects and interests, about mainstream and avant-garde, about ethnocentrism and orientalism, about convergence and pluralism, about technocratic instrumentalism and cultural awareness, etc. Not surprisingly, this functional method is a chimera, both as theory and as practice of comparative law. In fact, "the functional method" is a trifold misnomer: There is not one ("the") functional method but many, not all methods so called are functional at all, and some projects claiming adherence to it do not even follow any recognizable method. This paper first places the functional method in a historical and interdisciplinary context, in order to see its connections with, and peculiarities opposed to, the debates about functionalism in other disciplines. Second, it tries to use the functionalist method on the method itself, in order to determine how functional it is. This makes it necessary to place functionalism within a larger framework - not within the development of comparative law, but instead within the rise and fall of functionalism in other disciplines, especially the social sciences. Thirdly, the comparison with functionalism in other disciplines enables us to see what is special about functionalism in comparative law, and why what would in other disciplines rightly be regarded as methodological shortcomings may in fact be fruitful for comparative law. This analysis leads to surprising results. Generally, one assumes that the strength of the functional method lies in its emphasis on similarities, its aspirations towards evaluation and unification of law. Actually, the functional method emphasizes difference, it does not give us criteria for evaluation, and it provides powerful arguments against unification. Further, one generally assumes that the functional method does not account sufficiently for culture and is reductionist. However, the functional method not only requires us to look at culture, but also enables us, better than other methods, to formulate general laws without having to abstract from the specificities. The problem is that the functional method, as generally described, combines a number of different concepts of function: an evolutionary concept, a structural concept, a concept focusing on equivalence. The relation between these different concepts within the method is unclear, its aspirations therefore unrealistic. If we reconstruct the method plainly on the basis of functional equivalence as the most robust of the three concepts of function and emphasize an interpretative as opposed to a scientific approach, we realize that the functional method can make fewer claims, but at the same time is less open to some of the critique voiced against it. In short, the functional method is strong as a tool for understanding, comparing, and critiquing different laws, but a weak tool for evaluating and unifying laws. It helps us in tolerating and critiqueing foreign law, it helps us less in critiquing our own.

Human Rights and Gender Violence: Translating International Law into Local Justice:

Abstract: ity between and within each country, the former allows the rich in both poor and rich countries to “intermingle” in the calculation of global inequality, which is then fully decomposable into the between and within country components. What the survey data show is that global inequality first increased between 1988 and 1993 and then decreased from 1993 to 1998, reflecting the stagnation of poor rural areas of China and India in the first period, and the slight catching up of poor rural areas in the second period. Furthermore, Milanovic shows that previous attempts at capturing this type of inequality reach conflicting conclusions regarding the trend, which in turn reflect different assumptions and data sources, most of which bias the calculated results downward. The final section discusses the future of global inequality, and what can be done to redress it. Where previous studies express confidence in a declining global inequality trend, Milanovic is less confident, suggesting that we can be certain only that inequality is high. Furthermore, since the trend depends heavily on the performance of one country— China, predictions about future trends are speculative at best. Milanovic is certain about two things. First, global inequality is immoral. Second, redistribution is possible and would be both moral and efficient to the development of humanity as a whole.

Global Legal Pluralism

Abstract: Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines—comparative law, conflict of laws, public international law, and European Union law—have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism—the definition of law, the role of the state, of community, and of space—are altered under conditions of globalization. It addresses interrelations between different legal orders and various ways, both theoretical and practical, to deal with them. And it provides an outlook on the future of global legal pluralism as theory and practic...

Law as a Social System

Abstract: No abstract available.