Lecture 1 | Comparative law as a discipline Flashcards
(12 cards)
What is the definition of 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? Name 2 reasons
- Lawyers always compare: comparative law can help lawyers, judges and lawmakers understand how different legal systems address similar problems and can provide insights into how to improve and develop their own legal systems.
- It can be useful for businesses operating across different countries with different jurisdictions, because they need to know the legal differences and similarities so they can follow local rules and run smoothly.
What are the 4 challenges of comparative law?
- tacit knowledge
- internal point of view - hermeneutic approach (interpretatiemethode)
- comparative law is more than just putting two legal systems side by side
- formal or higher-level language
What does the challenge of comparative law: tacit knowledge, mean?
- A lot of things that we take for granted about Dutch law are unconscious knowledge/implicit knowledge.
- Example: the relationship between institutions such as the government and parliament.
- Before making a comparison with another legal system, you must become aware of your assumptions and the assumptions of the other legal system you’re comparing with and make them explicit.
- John Bell: ‘’For comparative law, you should actually look at the entire context, not just the law, but the broader context. It is an interdisciplinary practice by definition. You must rely on many other disciplines to make tacit knowledge explicit and become aware of how law is integrated into a foreign system’’.
What does the challenge of comparative law: internal point of view, mean?
- the hermeneutic approach require the comparatist to adopt the internal point of view of the systems compared, but not necessarily to believe either of them is right, fair or just.
- you need to interpret the foreign system in the light of the assumptions, tacit knowledge and things that are taken for granted in that system.
- to understand a legal system well, you really need to have the whole picture in mind, including its social, political, cultural and economic context. in addition, you must approach it from an internal point of view and not from the perspective of your own country: BIAS!
What does the challenge of comparative law: comparative law is more than just putting two legal systems side by side, mean?
- the comparatist is not reporting an internal point of view that comes as clearly packaged, even if he or she makes use of questionnaires addressed to national lawyers. the comparatist has to interpret the systems to enable a dialogue between them.
- merely placing systems side by side does not provide a complete understanding. true comparison involves dissecting the systems and attempting to understand them in relation to each other. this includes asking questions such as why something is done differently in Spain, and what alternative methods are employed there.
What does the challenge of comparative law: formal or higher-level language, mean?
- When you have two legal systems, you can place them side by side, but to truly understand them in relation to each other, you need to use a language that is even higher than their respective legal languages.
- John Bell’s approach to comparative law: it involves explicit understanding of how the other legal system is structured and how the law is understood in that system:
1) Tacit knowledge needs to be made explicit. This cannot be done purely through legal matters but must be done by examining the broader context: explaining the interaction between law and society. To truly understand the other legal system, you must approach it from an internal point of view, pretending to be one of them.
2) Then, you need to bring these two systems into dialogue and interpret them in light of each other to reach shared results for both legal systems.
3) Finally, you need to report on these findings using a conceptual framework that is usable for both systems and understandable to everyone within and outside these systems.
4) Using a formal or higher-level language.
What are the theoretical purposes of comparative law?
- Enriching understanding of foreign law and societal diversity.
- Putting your own presuppositions in perspective:
- Comparative law is also a mirror that can reflect on how things could be different. It provides a sense of relativism towards your own legal system; it can be understood and appreciated, but sometimes it can also be seen as ridiculous.
What are the practical purposes of comparative law?
- Policymakers in the EU: harmonization and unification, globalization and internationalization: legal comparison is necessary.
- Judges: for judges, comparative law provides room to fill in the gaps identified in practice by looking into foreign law.
- A legal comparison can be a source of inspiration for taking over foreign law (legal transplants).
What does ‘The Functional Method as a Tool to Design Research Questions’ mean?
- Everything can be compared if you define your question well. Whether something can be compared and how you will compare something depends on what the question is: research question is extremely important within comparative law.
What did Zweigert and Kötz invent + meaning
Zweigert and Kötz:
- Invented the functional method: the basic methodological principle of comparative law.
- In law the only things which are comparable are those which fulfil the same function. The legal system of every society faces essentially the same problems and solves these problems by quite different means though very often with similar results.
- Functional method, law has a function: to solve a particular problem; rules are functional in comparing societal problems: comparative law is made from rules that solve the same societal problem; these can be compared within the law.
- The question in comparative law must be stated without any reference to the concepts of its own legal system. One must never allow one’s vision to be clouded by the concepts of one’s own national system; always in comparative law one must focus on the concrete problem. - moving away from rules; distance oneself from domestic problems.
- The comparative lawyer acts as an architect of the society, constructing a framework that allows for an unbiased examination of legal systems and solutions.
What are the challenges related to the functional method?
- Praesumptio similitudinis: a presumption that the practical results are similar. The challenge arises when there is a presumption that the results are similar, as it questions the added value of conducting comparative research.
- This presumption can lead to tunnel vision, where the comparative lawyer focuses on finding similarities in the solutions.
- Zweigert and Kötz notes that if one’s comparative research seems to be leading to the conclusion that the foreign system has nothing to report, one must rethink the original question and purge it of all the dogmatic accretions of one’s own system.
- Despite praesumptio similitudinis, the functional method is not pointless, it is a good method to do comparative research with valuable insights.
