Emancipation or Deprivation for the European Legal Mind? the Contribution of the Legal Traditions Approach

Abstract

This article claims that some of the epistemological basic-conceptions of the European legal mind may lead to deprivation and exclusion of pluralistic thinking. The problem of exclusive legal mind is tackled with the help of H.P. Glenn's Legal Traditions of the World (2^nd ed., 2005). The argument of Glenn, i.e. reconciliation of legal traditions, is put to use in the context of human rights. The ECtHR case Refah (2003) forms an example of non-reconciliation and of epistemology of deprivation. The case appears to show that there is exclusion of other type of legal knowledge and little willingness to entertain detailed and sensitive argumentation. Comparative legal scholarship preaches pluralism, reconciliation, polycentricism, but that does not seem to fit with our de facto exclusive legal mind. The considerations in the article highlight the argument by Glenn and its challenge to the European legal vision i.e. the willingness of comparative law-based learning to move towards a form of epistemic emancipation. The article concludes with the identity of comparative law itself: what it is and what one may expect from it.