Roundtable on Comparative Law and Interdisciplinarity: Practical Approaches

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).

The University of Bristol Law School hosted a roundtable on Practical Approaches towards Comparative Law and Interdisciplinarity on 8 February 2017. It was organised by Dr Giorgia Guerra (University of Padua, Italy) and Dr Jule Mulder (University of Bristol, UK). The roundtable brought together a number of comparative law researchers and provided a small and informal forum to consider interdisciplinary approaches within the context of European comparative private law and constitutional law. It explored how research on modern technologies, social sciences and arts and humanities can enrich comparative law projects within the context of (European) private and constitutional law. The presentations were chaired by Dr Athanasios Psygkas and Prof Paula Giliker.

The first presentation focused on comparative law and literature. Prof Alberto Vespaziani (University of Molise, Italy) explored the constitutional underpinning of Boccaccio’s Decameron. He argued “that Boccaccio ought to be appreciated as a founding father not only of the Italian literary tradition, but of its modern political tradition as well. Connections between Boccaccio and Machiavelli’s representations of Fortuna are explored. [His] argument proceeds in three steps: first, it presents Boccaccio’s biography, specifically his intellectual formation in the Florence and Naples of the second half of the 14th century; it then examines some general features of the Decameron; finally, it looks at the Introduction’s vision of the locus amoenus, the pleasant place in which a select group decides to form a community of narrators; here it draws an analogy between this and the formation of political and social institutions more generally. [Vespaziani’s] paper analyses some of the novellas of the Decameron, which feature legal and political themes orbiting around concepts of justice, power and corruption.”

The subsequent discussion focused on the constitutional moment and parallels and differences between the U.S. American and European Constitutional development and the involvement of the constituents in the constitutional process.

Dr Jule Mulder’s paper presented work in progress which tentatively proposes a method to compare the new concept of the vulnerable consumer in EU consumer protection law and its implementation and application within the Member States. She explores how a comparative law method can increase our understanding of the harmonisation process within the area of law if it is able to recognise multi-levelled influences on the implementation and application of the law, including the dialogue between the CJEU and the national courts and the national (legal) cultural context. Relying heavily on Frankenberg’s grid (Comparative Law as Critique (Edward Elgar 2016) 84) as an analytical tool to scrutinise the different epistemological assumptions made within comparative analyses along the lines of difference/similarity and detachment/commitment, she suggests that comparative studies should resist assumptions of political neutrality and rather recognise the polar ideological opposites.

To analyse the concept of the vulnerable consumer, she proposes a three step approach, which firstly considers the legal concepts in a broader European and national political and theoretical framework. These would include issues of consumer theory relating to market failure due to information asymmetries and resource gaps, but also the EU Commission’s focus on empowering consumers and the CJEU’s willingness to protect consumer choices to push for further market integration. However, in terms of vulnerability which relates to poverty, age, disability or other special social needs, the concept of indirect discrimination as it is related to substantive and formal equality may also be informative.

The second step then considers the national cultural, historic and legal context which affects the area of law. Thus, constitutional principles may also protect vulnerable consumers from over-exploitation and indirectly affect private legal relationships, and the economic model dominant within the national legal discourse may more directly interfere with private relationships to ensure equality and independence. Additionally, historic development, the way law protects but also limits vulnerable groups and their position within society, and the broader power-relations within law and society could be explored.

The final step then conducts the comparison and should include the previous discussion to highlight differences and explain the role and interpretation of the legislation in the national context. It should thus include case law analysis, considering the national courts’ approaches and their engagement with the CJEU case law. However, a critical analysis can also go beyond that.

Dr Giorgia Guerra’s paper focused on comparative studies and technology, particularly the usefulness of interdisciplinary insights to understand the legal issue of “safety” related to technology controlled actions. She argues that the key EU concept of safety “emerges at the crossroads of several disciplines due to its polymeric meaning and nature of the values involved. This could be correlated to the fact that the various fields (genomics, synthetic biology, nanotechnology, information technology and robotics, regenerative medicine, and neuroscience) overlap and converge.” Since “risk is fundamentally a human construct, as its perception and management is dictated by our own attitude, environment or culture”, interdisciplinary insights are valuable to understand “safety culture”.

Her paper aims to explore “to what extent non legal factors influence the legal consequences in terms of safety and safety trials and whether a deep integration of different disciplines is required to go beyond the case law analysis and recognize the circumstances and the social and economic conditions, in which these safety requirement become relevant.”  To demonstrate, she explores two case studies: nanotechnologies and robotics. These case studies help to understand how “individual and social feelings can influence the attitude toward an acceptable level of risk inherent to the new technology” and explore the tight relationship between neurosciences and cognitive sciences: “on one hand, progress in the comprehension of cognitive human behavior stimulates progress in the development of robotic systems and their ability to work in complex environment. On the other hand, robotics give useful insights to neuroscientific research.”

Dr Giorgia Guerra argues that “lawyers need to face such novelties, which are multidisciplinary by definition.” The research underlines that in case of a mixed team composed by humans and robots, it is important to identify who is responsible for a specific action.  It is difficult to identifying malfunctioning of the robot in a context where robot autonomy is high. “Neuroscience can help lawyers to understand the deepest nature of artificial intelligence and to gather the legal implications of robot autonomy and their actions, including interaction between human and robots, the variables that affect robotic action, and their lack of expertise.” As robots are more likely to provide a service than a product, it is also necessary to understand the “boundary between product and service and the deepest nature of a non-human product that can potentially act following an ethical code.”

Dr Giorgia Guerra concludes that interdisciplinary research enables us to examine legal problems from a ‘perspective of multiple disciplines’ (K D Connolly, “Elucidating the Elephant: Interdisciplinary Law School Classes” (2003) 11 Wash. U. J. L. & Pol’y 11). To do this successfully, an “interdisciplinary approach needs to share a common terminology” and clearly integrate the different levels and disciplines. Other than multidisciplinary research, interdisciplinary research requires researchers to interact and inform each other’s work to transfer knowledge between disciplines and compare individual findings. This can then develop into transdisciplinary research collaboration (Rosenfield 1992) that exchanges information, alters discipline-specific approaches, and shares resources and integrates disciplines to achieve a common scientific goal.

The three papers thus presented very different approaches towards interdisciplinary research in comparative law and legal research more generally. It is hoped that the roundtable is the first of many such research cooperations that are engage with interdisciplinary approaches within the context of comparative law.

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