Re-Membering Law in the Internationalizing World


Forthcoming in Hofstra Law Review volume 34


This article examines some of the challenges to understanding new, non-national legal configurations as contexts of origin color understandings and evaluations of legal standards allegedly shared across legal communities. It examines a case on assisted suicide, Pretty v. U.K., decided by the European Court of Human Rights. The case illustrates mechanisms of legal integration in the European court, followed by a process of dis-integration that occurred when the decision was reported to the French legal community. The French rendition reflected a legal community’s inability to process common law information through civil law cognitive grids. The article addresses both the capacity of law to internationalize, and the sorts of comparative inquiries necessary to perceiving what lurks unseen, as the world experiences superimposed legal norms and claims, some mutually contradictory. It also discusses the peculiar relation of past to present in the establishment, evolution and transformation of legal significance. The European court engaged in decision-making affected by unspoken associations with the Nazi past that collided with the needs of a society transformed by modern medical technology. The “remembering” of law that this article addresses thus involves (1) recompositions of law as it increasingly ignores old borders and categories; and (2) the ongoing need to examine law’s past meanings in order to understand its present incarnations and, most importantly, to imagine its potentials in our time of flux and of increasingly complex and elusive non-national legal constructs.


Comparative and Foreign Law | International Law

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