La globalizzazione e i due volti della comparazione: spunti per un itinerario

This paper discusses the two major functions of comparative law in the present. One the one hand, it is a discipline aiming at developing a critical discourse on globalization, dismantling the narratives which steer the legal reasoning. Taxonomies such as “Western legal tradition” are not neutral; they imply a choice among values, and tend to pursue hegemonic goals. At this level, comparative law plays a “subversive” role, highlighting difference as a major value within the legal sphere. On the other hand, this paper focuses on the judicial dialogue as a device of harmonization and rapprochement among legal systems. The author looks at significant case-studies highlighting different attitudes toward foreign law: the US Supreme Court’s “isolationist” approach is compared with the Canadian Supreme Court’s “dialogical” one. Attention is also given to the South-African instance, as a clear example of cultural “openness” toward external legal factors. In sum, the dialogue among courts is a powerful element working for legal globalization. At this level, comparative law is a device used to foster the processes of the globalization of law. The two functions of comparative law coexist and give a full-fledged description of what it is in present times.