chapter 1 Flashcards
(19 cards)
What is comparative law?
A field of legal studies that involves comparing and analyzing different legal systems across different countries and cultures.
Why is comparative law important for lawyers?
It helps lawyers, judges, and lawmakers understand how different legal systems address similar problems and improve their own legal systems.
How can businesses benefit from comparative law?
They need to be aware of legal differences and similarities between different countries to operate effectively and comply with local laws.
What is necessary to effectively compare legal systems?
A deep understanding of at least one other legal system.
What is analogical reasoning in the context of law?
Applying a rule from a similar case to a similar situation, which can also include rules from a foreign system.
What does it mean to make implicit knowledge explicit in comparative law?
To become aware of one’s own assumptions and the foreign judicial system being compared.
What is the internal point of view in comparative law?
Adopting the perspective of the systems being compared without necessarily agreeing with them.
What does comparative law involve beyond side-by-side comparisons?
It involves interpreting the systems to enable a dialogue between them.
What is the significance of using a formal or higher-level language in comparative law?
It allows understanding different legal systems in relation to each other.
What are the theoretical purposes of comparative law?
- Enriching understanding of foreign law and social diversity * Putting one’s own presuppositions in perspective
What are the practical purposes of comparative law?
- Inspiration for legislators when creating new laws * Filling gaps for judges by looking into foreign law * Helping policymakers harmonize legal systems in the EU
What is the functional method in comparative law?
A key principle that helps decide which laws to compare and lays the foundation for structured comparative legal research.
What is a goal of the functional method according to Zweigert and Kötz?
- Creating a ‘neutral’ research question * Finding common bias (tertium comparationis) for comparison
How should legal solutions be analyzed in comparative law?
By separating them from their original system and focusing on their function rather than national legal traditions.
What is the main focus of a comparative lawyer?
Creating a fair and unbiased framework to analyze legal systems and solutions.
What is the significance of stating a research question without reference to one’s own legal system?
It helps avoid bias and focuses on the concrete problem in comparative law.
What does functionalism in comparative law suggest?
All societies face similar problems, but they solve them using different legal methods.
What is the first challenge of the functional method?
The risk of ‘praesumptio similitudinis’ or presuming that practical results are similar.
What should a researcher do if their comparative research leads to expected conclusions?
Reevaluate the original question and purge it of dogmatic concepts from their own system.
