Considering comparative approaches in legal histories

By Kristopher A. Nelson
in November 2010

600 words / 3 min.
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I have proposed comparative/transnational approaches between legal and societal understandings of privacy in the face of new technologies. Micol Siegel’s work suggests that I should, at the very least, consider my approach more critically.

Please note that this post is from 2010. Evaluate with care and in light of later events.

I have proposed, perhaps overly uncritically, comparative approaches between legal and societal understandings of privacy in the face of new technologies in the Unites States and, tentatively, the United Kingdom and France (or a similar civil law country). Micol Siegel‘s work suggests that I should, at the very least, consider my approach critically. In “Beyond Compare: Comparative Method after the Transnational Turn,” she argues that such comparative approach can, essentially, re-inscribe colonial, racial, and national narratives. Comparisons can end up hiding more than they reveal, effectively “produc[ing] the very notions, subjects, and experiences of national difference that in turn attract further comparative study” (63). However, some kind of comparative approach is still useful: “The nation, like the self, emerges in relation to others” (64).

One key point of Siegel is that comparative histories tend to be “international” and not “transnational,” and that this is a core problem. Instead of escaping the “boundaries of nationalist historiography” (to quote Siegel quoting Ian Tyrrell, 65), traditional comparative approaches posit two (or more) distinct units (nations) that the historian then contrasts. This tends to ignore themes, narratives, concepts, etc. which act “unconfined by national borders” (65). Such studies can “shape or even create its own data” (65).

Siegel’s points are quite valid, I think, especially for certain kinds of history, especially histories that target people or groups who cross artificial national boundaries (immigrants, for example). I am struggling, though, to integrate her critique into my work, which does not quite imagine national distinctions, but rather exists because of these national distinctions. However artificial it may be, law is bound by national boundaries, and investigating changes in law necessitates a recognition of nations.

More fruitful for me, though, is to consider how ideas, concepts, and notions within the law may escape, cross, or transcend the legal boundaries into which they are inscribed. Thus, if I am investigating a concept like the “expectation of privacy,” I should consider the transnational character of this sense, and not simple say that, for example, the French have a different sense of it without examining what that means and what the cross-national connections may be. However, I do believe that comparing and contrasting the French and American legal structures is valid and fruitful–these boundaries and domains exist independent of my analysis. I am not creating them (even if, as I said, they may be artificial). But even as I do so, I should be careful not to attribute the differences strictly to some kind of national character, or to assume they the grew that way independent of influences from beyond the nation-state. But doing that, I think, is simply doing effective history; failing to take into account supra-national influences does a disservice to the history, quite apart from Siegel’s critique.

Siegel proposes that comparative methods considered as “subjects” or historical study instead of “methods.” I think perhaps this proposal is useful in a field where comparative approaches have reigned for years (race in the U.S. vs. Brazil, for example), but its usefulness as a methodology remains vital in areas where it has been less used. Legal scholars have tended to remain parochial in their focus, and I think legal comparative approaches have yet to make inroads to such an extend that it is time to turn away from them.