Week 2 - Comparative legal research

Question 1

Structuring a comparative legal research involves carefully organizing and planning the approach to analyzing and comparing legal systems. Through what stages do you have to go to structure the research?

Answer 1

1. Identifying a research theme.
2. Formulating a research question. The functional method is the dominant method here.
3. Comparability and choice of systems. Check if the selected legal systems are comparable enough in their approach.
4. Producing a scheme of comparability. A systematic framework which explains the key elements of the comparison (included the tertium comparationis).
5. Identifying the legal rules. Selecting the legal rules within the legal systems for further examination, based on the scheme of comparability.
6. Describing the legal rules to compare. This is a thorough legal analysis.
7. Comparing. Similarities and differences are analyzed followed by a meaningful conclusion.

Question 2

Is structuring a comparative legal research a linear process or is it a circular process?

Answer 2

Structuring a comparative legal research can be seen as a circular process. For example, aspects such as identifying a research theme can become morge explicit after formulating the research question.

Question 3

What is the tertium comparationis?

Answer 3

The term ‘tertium comparationis’ refers to the common quality or characteristic shared by two or more things being compared.

Question 4

To gain a comprehensive understanding of a legal situation in a specific country, John Bell suggests casting the net wide. What does this mean?

Answer 4

It means that you should look beyond mere rules and delve into the underlying reasons for these rules.

Question 5

According to John Bell, language has an important role in casting the net wide. Why is this?

Answer 5

The same word can mean different things, depending on the socio-political culture it is used in. Comparative lawyers must dig into the background and contexts.

Question 6

The selection of cases and countries in comparative legal research is influenced by both objective and subjective factors. What are these factors?

Answer 6

Objective factors include the research aim and specific inquiries.
Subjective factors are based on personal capacities, such as language proficiency, available time and resources, and prior experience.

Question 7

Marieke Oderkerk has outlined certain guidelines researchers should consider defining the exact research aim for the comparative study and the associated case and country selection. What are these guidelines?

Answer 7

1. If the aim is reflective in nature, researchers should aim for minimal limitations and explore both similarities and differences among legal systems.
2. If the aim is to formulate new legislation, it is essential to include systems that offer valuable isights, particularly within socio-economic structures and developmental contexts.
3. If the aim is to develop legislation on a supranational level, researchers should focus on systems that either require harmonization of unification, or systems that can provide valuable lessons for the process.

Question 8

For what reason did Paul Bohannan criticize Max Gluckman’s research on the process of dispute resolution in African tribes?

Answer 8

Bohannan criticized the research because Gluckman used termonology of English and Dutch law to describe the African tribal legal systems. Using familiar terminology could lead to misunderstanding and the assumption that different legal systems are similar.

Question 9

According to Bohannan, how could the African tribal legal systems be described in a better way?

Answer 9

According to Bohannan the African legal systems should be described using their own native terms and categories to preserve their distinctiveness.

Question 10

How did Gluckan react to the criticism of Bohannan?

Answer 10

Gluckman acknowledged the critique. According to him, if there is no suitable English of Dutch-Roman law equivalent, the African terminology prevails. Using the familiar terminology helps with effective communication about a foreign legal system.

Question 11

Gluckman had a very pragmatic approach. Why is this?

Answer 11

Gluckman emphasized on the practicality of using recognizable language for effective cross-cultural understanding.

Question 12

Name a pro and a con for the approach of Max Gluckman.

Answer 12

Pro: using terms out of a recognizable language to describe foreign legal systems helps for effective understanding of those systems.

Con: using familiar terms can lead to an assumption that different legal systems are comparable. This will lead to tunnel vision and confusion. The researcher always needs to be alert to avoid tunnel vision.

Question 13

Name a pro and a con for the approach of Paul Bohannan.

Answer 13

Pro: not using terms out of a known legal system will prevent tunnel vision.

Con: when avoiding terminology out of a known legal system, it is very difficult to communicate about the researched legal system.

Question 14

M. Oderkirk, (2001). The importance of context: selecting legal systems in comparative legal research.

In this article, five guidelines are given for selecting legal systems for different research objectives. What are these guidelines for the following research objectives:

1. Projects with a reflective objective.
2. Projects in the context of national legislation.
3. Projects about harmonization or unification.
4. Projects on the best possible legislation.
5. Projects aiming to improve existing supranational legislation.

Answer 14

1. Include systems that hold insights into the study’s topic.
2. Include both the system for which the legislation is intended and those with advances regulations on the project.
3. Include systems which are slated for harmonization or unification.
4. Include systems targeted by the legislation and those with advanced regulations on the topic.
5. Include the system requiring improvement and those offering relevant information.