Week 1 - Comparative law as a discipline Flashcards
(16 cards)
What does the term ‘comparative law’ mean?
Comparative law entails the systematic examination and comparison of diverse legal systems across countries and cultures.
What is the primary goal of comparative law?
The primary goal of comparative law is to understand the underlying principles and values while assessing the effectiveness of various legal approaches.
Judges use the method of analogical reasoning. What does this method entail?
By applying the method of analogical reasoning, judges apply a rule derived from a similar situation to a comparable case.
“Knowing other legal systems requires a specific justification”
What does this statement suggest?
It suggests that for one to be able to gain knowlegde or understand legal systems other then his owns, he should have a specific purpose or justification for acquiring the knowledge of that legal system.
How does one find a justification or purpose for acquiring knowledge of a different legal system then his own?
The justification is to make an explicit comparison between two or more legal systems. One needs to get under the skin of at least one other legal system to understand the legal system he is trying to understand.
The British comparatist John Bell formulated four peculiar challenges in comparative legal research. Which four are these?
- To understand the full institutional setting out of which the legal issues and solutions arise. The researcher has to study the social and cultural context in which the law is embedded. Gaining this knowledge can be difficult.
- When comparing legal systems, one must adopt the internal point of view of the systems (point 1). He shouldn’t believe one of them is right, fair or just. The legal system should be interpreted in the light of the tacit knowledge that system has. Biases of ones own legal system have to be avoided.
- The comparatist has to interpret the systems to make them understandable to people from different backgrounds. By doing this, a dialogue between the legal systems is enabled. A comparatist has to understand why things are done differently in each legal system.
- Legal systems are presented in language and ideas understood by lawyers in the home system. According to Bell, fully understanding and comparing legal systems goed beyond their individual legal languages. It involves finding a common conceptual framework (higher-level language) to reveal differences and similarities.
According to Bell, the knowledge of culture and social context in which law is embedded in his own legal system is tacit knowledge. What does this mean?
Tacit knowledge can also be described as unconscious knowledge. In one’s own legal system, one can naturally understand how legal functions interact witch each other and how the law fits into the broader social and cultural context.
What is the hermeneutic approach?
According to the hermeneutic approach, to interpret a legal system, the comparatist needs to adopt the internal point of view of the systems compared, but not necessary to believe one of them is right, fair or just, but to understand them.
What are the purposes of comparative law? Devide the purposes in theoretical and practical purposes.
Theoretical
1. It expands the knowledge beyond one legal system.
2. It can serve as a mirror. One can reflect on his own legal assumptions. By doing this, one can understand his own legal system better and he can acknowledge areas of improvement.
Practical
1. For judges, comparative law provides room to fill in the gaps identified in practice by looking into foreign law.
2. For legislators, comparative law can be a source of inspiration for taking over foreign law.
3. For policy makers, comparative law can be used for harmonization of legal systems, for instant the EU.
According to Graziadei, Glendon, Zweigert and Kötz, what stands as a fundamental principle in comparative legal studies and what does this method aim at?
The functional method. It aims to go beyond merely identifying legal rules, emphasizing the need to eliminate preconceptions (bias) from one’s own legal system.
What are, according to Zweigert and Kötz, the objectives of the functional method?
- It is a tool for framing a neutral research question. Having a neutral research question prevents bias from one’s own legal system.
- It is a tool for finding a so-called tertium comparationis, a ‘heuristic’ device. This is the characteristic which the legal systems that are being compared have in common.
Zweigert and Kötz state that the comparative lawyer acts as an architect of society. Why is this according to them?
The comparative lawyer constructs a framework that allows for an unbiased examination of legal systems and solutions.
“What formal requirements are there for sales contracts in foreign law?”
What is wrong with this comparative law research question and how can you formulate this question in a better way?
The question contains a bias. It contains national doctrinal overtones, such as the concept of formal requirements for sales contracts.
How does foreign law protect parties from surprise, or from being held to an agreement not seriously intended?
This queston does not focus on the formal requirements, but on the objectives of sales contracts.
What presumption do Zweigert and Kötz make about law in different countries?
Legal systems in every society faces the same problems and solves these problems by quite different means, though very often with similar results.
According to Zweigert and Kötz, what are the challenges related to the functional method?
- Developed nations answer the needs of ‘legal business’ in the same or in a very similar way. This amounts to a praesumptio similitudinis, a presumption that practical results are similar. This can lead to tunnel vision, where the comparative lawyer focuses on finding similarities in the solutions.
- If a 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 legal system.
- If the comparatist finds no functional equivalent in a foreign legal order, he should check again wether the terms in which he posed his research question were indeed purely functional, and wether he has spread the net of his researches quite wide enough.
- The researcher can rest content if his researches through all the relevant material lead to the
conclusion that the systems he has compared reach the same or similar practical results, else he should go warned and go back to check again whether the terms in which he posed his original research question were indeed purely functional.
What is, according to professor Maurice Adams, a misunderstanding by Zweigert and Kötz?
They argue that if no similar solutions are found, the research question is not properly formulated (praesumptio similitudinis). According to Adams, the presumption that practical results are similar, is a misunderstanding. Adams says it is the other way round. If one has found the exact same findings, the research question is debatable because there should be differences to some extent.
