"My article explores the source ‘general principles of international law’ from the point of view of comparative law scholarship. As international law’s agenda becomes wider and more ambitious, areas of overlap between international and municipal law become ever larger, and interactions between the two levels more numerous. It might seem reasonable to assume that general principles of law, a source which establishes an important point of contact between international and municipal law, would come into its own in such an environment. This has not been the case, however. One possible explanation is hesitation on the part of international judges to identify rules whose formal validity as rules of international law is rather tenuous ..." (more)
EJIL: Talk!, 31 May. Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971.
Purpose
Thursday, May 31, 2012
Monday, May 28, 2012
Explanatory Synthesis and Rule Synthesis: A Comparative Civil Law and Common Law Analysis
Abstract:
In comparative study of common law and civilian legal analysis, many scholars have noted a convergence in the two systems' use of precedent cases. Although common law legal theory historically has started from a position that judges are fully competent to create law and change the law through their adjudication of cases and the judicial opinions they write, and civilian theory historically has started from a position that judges are not empowered to create and change the law enacted by the legislature but rather are to read and apply the existing law to new cases, the practice of tribunals within the two families of legal analysis has not reflected clear distinctions in the approach to and use of precedent. Civilian judges refer to case law and acknowledge the persuasive effect of precedent on their determinations, and common law judges have become more civilian in their respect for legislative authority to enact laws that determine cases. A common law approach to precedent includes the theory of stare decisis, that decisions of courts in a proper position in the hierarchy of judicial authority of the appropriate jurisdiction shall issue opinions that are binding on lower courts within the same hierarchy, but it is no longer a safe proposition to suggest that a civilian judge will not find precedent to be binding and will not follow the guidance of prior judicial determinations in the adjudication of a new dispute. Similarly, a common law judge may go to extreme lengths to distinguish precedents, and precedents of the same court or same level of court will be rejected from time to time - reversed, abrogated, modified, or replaced - in the name of progress and justice.
The purpose of this article is not to trace the exact points of convergence and comparative divergence in the use of and reliance on precedent. Rather, I use this convergence as a platform for the discussion of explanatory synthesis and rule synthesis. Explanatory synthesis, the inductive use of precedent in a demonstrative and persuasive presentation of how the law should be interpreted and applied, may be distinguished from rule synthesis because it does not depend on the precedent being binding or on the application of any form of the doctrine of stare decisis. Explanatory synthesis as a form of legal analysis relies on the open, scientific, inductive structure of the analysis and the use of multiple precedents for the accuracy and reliability of its predictions and conclusions. Rhetorically, explanatory synthesis relies on the structure of mathematical-scientific induction within a familiar deductive syllogistic structure, and on the open, demonstrative, and falsifiable analysis of multiple authorities both to create knowledge and understanding and for persuasive advocacy.
Murray, Michael D., Explanatory Synthesis and Rule Synthesis: A Comparative Civil Law and Common Law Analysis (September 26, 2011). Bahçeşehir Üniversitesi Hukuk Fakültesi-Kazancı Hukuk Dergisi, Vol. 139, pp. 83-84, 2011.
In comparative study of common law and civilian legal analysis, many scholars have noted a convergence in the two systems' use of precedent cases. Although common law legal theory historically has started from a position that judges are fully competent to create law and change the law through their adjudication of cases and the judicial opinions they write, and civilian theory historically has started from a position that judges are not empowered to create and change the law enacted by the legislature but rather are to read and apply the existing law to new cases, the practice of tribunals within the two families of legal analysis has not reflected clear distinctions in the approach to and use of precedent. Civilian judges refer to case law and acknowledge the persuasive effect of precedent on their determinations, and common law judges have become more civilian in their respect for legislative authority to enact laws that determine cases. A common law approach to precedent includes the theory of stare decisis, that decisions of courts in a proper position in the hierarchy of judicial authority of the appropriate jurisdiction shall issue opinions that are binding on lower courts within the same hierarchy, but it is no longer a safe proposition to suggest that a civilian judge will not find precedent to be binding and will not follow the guidance of prior judicial determinations in the adjudication of a new dispute. Similarly, a common law judge may go to extreme lengths to distinguish precedents, and precedents of the same court or same level of court will be rejected from time to time - reversed, abrogated, modified, or replaced - in the name of progress and justice.
The purpose of this article is not to trace the exact points of convergence and comparative divergence in the use of and reliance on precedent. Rather, I use this convergence as a platform for the discussion of explanatory synthesis and rule synthesis. Explanatory synthesis, the inductive use of precedent in a demonstrative and persuasive presentation of how the law should be interpreted and applied, may be distinguished from rule synthesis because it does not depend on the precedent being binding or on the application of any form of the doctrine of stare decisis. Explanatory synthesis as a form of legal analysis relies on the open, scientific, inductive structure of the analysis and the use of multiple precedents for the accuracy and reliability of its predictions and conclusions. Rhetorically, explanatory synthesis relies on the structure of mathematical-scientific induction within a familiar deductive syllogistic structure, and on the open, demonstrative, and falsifiable analysis of multiple authorities both to create knowledge and understanding and for persuasive advocacy.
Murray, Michael D., Explanatory Synthesis and Rule Synthesis: A Comparative Civil Law and Common Law Analysis (September 26, 2011). Bahçeşehir Üniversitesi Hukuk Fakültesi-Kazancı Hukuk Dergisi, Vol. 139, pp. 83-84, 2011.
New Study Group on European Cooperative Law: 'Principles' Project
Abstract:
This paper presents both a new scientific network named “Study Group on European Cooperative Law” (SGECOL), and the “Principles of European Cooperative Law” (PECOL) project, which SGECOL has identified as its first research activity.
SGECOL is a European group of cooperative law scholars, established in Trento (Italy), at the European Research Institute on Cooperative and Social Enterprises (Euricse), in November 2011. SGECOL’s general objective is to conduct comparative research on cooperative law in Europe, thus promoting increased awareness and understanding of cooperative law within the legal, academic and governmental communities at national, European and international level. SGECOL intends to achieve this objective through various research initiatives on cooperative law, beginning with the drafting of PECOL.
PECOL will take the form of legal provisions accompanied by explanatory comments. They will be developed on the basis of the existing cooperative law in Europe, focusing in particular on six European jurisdictions (Finland, France, Germany, Italy, Spain, UK). PECOL, however, will not simply summarize and describe the common core of European national cooperative laws. Going beyond that, the project aims to present the main general provisions through which – in the authors’ view – cooperative law should be formulated to provide cooperatives with a definite and distinct legal identity vis-a-vis other business organizations.
The PECOL project does not serve a single specific purpose, still less is its goal to impose harmonization on national cooperative laws. PECOL will be a scientific and scholarly work, capable of serving many potential functions, depending on the users’ particular needs.
Fajardo, Gemma, Fici, Antonio, Henrÿ, Hagen, Hiez, David, Münkner, Hans-Hermann and Snaith, Ian, New Study Group on European Cooperative Law: 'Principles' Project (February 14, 2012). Euricse Working Paper No. 24/12.
This paper presents both a new scientific network named “Study Group on European Cooperative Law” (SGECOL), and the “Principles of European Cooperative Law” (PECOL) project, which SGECOL has identified as its first research activity.
SGECOL is a European group of cooperative law scholars, established in Trento (Italy), at the European Research Institute on Cooperative and Social Enterprises (Euricse), in November 2011. SGECOL’s general objective is to conduct comparative research on cooperative law in Europe, thus promoting increased awareness and understanding of cooperative law within the legal, academic and governmental communities at national, European and international level. SGECOL intends to achieve this objective through various research initiatives on cooperative law, beginning with the drafting of PECOL.
PECOL will take the form of legal provisions accompanied by explanatory comments. They will be developed on the basis of the existing cooperative law in Europe, focusing in particular on six European jurisdictions (Finland, France, Germany, Italy, Spain, UK). PECOL, however, will not simply summarize and describe the common core of European national cooperative laws. Going beyond that, the project aims to present the main general provisions through which – in the authors’ view – cooperative law should be formulated to provide cooperatives with a definite and distinct legal identity vis-a-vis other business organizations.
The PECOL project does not serve a single specific purpose, still less is its goal to impose harmonization on national cooperative laws. PECOL will be a scientific and scholarly work, capable of serving many potential functions, depending on the users’ particular needs.
Fajardo, Gemma, Fici, Antonio, Henrÿ, Hagen, Hiez, David, Münkner, Hans-Hermann and Snaith, Ian, New Study Group on European Cooperative Law: 'Principles' Project (February 14, 2012). Euricse Working Paper No. 24/12.
Thursday, May 24, 2012
Incorporating a Comparative Perspective into Undergraduate American Constitutional Law Courses
Abstract:
This paper notes a rise in the inclusion of comparative law in American law school curricula and suggests that political science instructors can benefit from incorporating a comparative perspective into the constitutional law courses that are offered to undergraduates. Based on the author’s recent experience teaching undergraduate constitutional law, an approach for doing so is outlined along with its objectives and potential benefits. The paper hopes to add to work by previous APSA Teaching and Learning Conference participants who have identified effective and engaging methods for teaching constitutional law.
Narasimhan, Angela G., Incorporating a Comparative Perspective into Undergraduate American Constitutional Law Courses (2012). APSA 2012 Teaching & Learning Conference Paper.
This paper notes a rise in the inclusion of comparative law in American law school curricula and suggests that political science instructors can benefit from incorporating a comparative perspective into the constitutional law courses that are offered to undergraduates. Based on the author’s recent experience teaching undergraduate constitutional law, an approach for doing so is outlined along with its objectives and potential benefits. The paper hopes to add to work by previous APSA Teaching and Learning Conference participants who have identified effective and engaging methods for teaching constitutional law.
Narasimhan, Angela G., Incorporating a Comparative Perspective into Undergraduate American Constitutional Law Courses (2012). APSA 2012 Teaching & Learning Conference Paper.
Law & Development as Anti-Comparative Law
Abstract:
This article asserts that during the twentieth century, American law has predominately structured its relationship to foreign legal experience through a set of ideas and practices known as “law and development,” which is irredeemably antithetical to the practice of comparative law. Centrally, law and development is built on the assumption that American law can be exported abroad to catalyze foreign legal development. The dismal record of such efforts has remained paradoxically popular while the field remains locked in repeating cycles of failure and optimism.
This article demonstrates that the history of law and development’s failures is far older than has been traditionally recognized, and dates back to the turn of the twentieth century. In this era, foreign reform became a key part of the professional image of the modern American lawyer. At the same time, the origins of law and development were intimately tied to the decline of comparative law in American legal culture. This history reveals that the paradox of law and development’s contemporary popularity can only be understood by recognizing the cultural politics that these developments embedded in the American legal community. The troubling legacy of this widely entrenched view of America as solely an exporter of legal knowledge presents pressing liabilities for American law, both internationally and domestically, on the competitive terrain of the twenty-first century.
This article concludes that in order to address these liabilities, America should categorically abandon law and development and should fundamentally reorient its relationship to foreign legal experience through a self-interested practice of comparative law. As exemplified in the debate over judicial citation of foreign precedents, this shift will require basic changes in how American legislative and administrative bodies relate to foreign law, as well as the place of comparative law in American law schools. Such a reorientation will enable America to strategically perceive foreign legal developments and, most critically, productively adapt foreign legal experience as an energizing stimulant to our own legal innovation.
Kroncke, Jedidiah, Law & Development as Anti-Comparative Law (September 23, 2011). Vanderbilt Journal of Transnational Law, Vol. 45, 2012.
This article asserts that during the twentieth century, American law has predominately structured its relationship to foreign legal experience through a set of ideas and practices known as “law and development,” which is irredeemably antithetical to the practice of comparative law. Centrally, law and development is built on the assumption that American law can be exported abroad to catalyze foreign legal development. The dismal record of such efforts has remained paradoxically popular while the field remains locked in repeating cycles of failure and optimism.
This article demonstrates that the history of law and development’s failures is far older than has been traditionally recognized, and dates back to the turn of the twentieth century. In this era, foreign reform became a key part of the professional image of the modern American lawyer. At the same time, the origins of law and development were intimately tied to the decline of comparative law in American legal culture. This history reveals that the paradox of law and development’s contemporary popularity can only be understood by recognizing the cultural politics that these developments embedded in the American legal community. The troubling legacy of this widely entrenched view of America as solely an exporter of legal knowledge presents pressing liabilities for American law, both internationally and domestically, on the competitive terrain of the twenty-first century.
This article concludes that in order to address these liabilities, America should categorically abandon law and development and should fundamentally reorient its relationship to foreign legal experience through a self-interested practice of comparative law. As exemplified in the debate over judicial citation of foreign precedents, this shift will require basic changes in how American legislative and administrative bodies relate to foreign law, as well as the place of comparative law in American law schools. Such a reorientation will enable America to strategically perceive foreign legal developments and, most critically, productively adapt foreign legal experience as an energizing stimulant to our own legal innovation.
Kroncke, Jedidiah, Law & Development as Anti-Comparative Law (September 23, 2011). Vanderbilt Journal of Transnational Law, Vol. 45, 2012.
Tuesday, May 22, 2012
An Economic Analysis of Civil versus Common Law Property
Abstract:
Common law and civil law property appear to be quite different, with the former emphasizing pieces of ownership called estates and the latter focusing on holistic ownership. And yet the two systems are remarkably similar in their broad outlines, for functional reasons. This paper offers a transaction cost explanation for the practical similarity and the differing styles of delineating property and ownership in the two systems. As opposed to the “complete” property system that could obtain in the world of zero transaction costs, actual property systems employ structures characterized by shortcuts in order to achieve property’s substantive goals of protecting interests in use. Overlooking this structure leads to the bundle of rights picture of property, even though property is a structured bundle of relationships. The architecture of property consists in part of four basic relationships, and a number of characteristic features of property automatically arise out this architecture, including exclusion rights, in rem status, and running to successors. Where civil law and common law differ is in their style of delineation, which reflects the path dependence of initial investment in feudal fragmentation in the common law and Roman-inspired holistic dominion in civil law. This transaction cost explanation for the functional similarities but different delineation process in the two systems promises to put the comparative law of property on a sounder descriptive footing.
Chang, Yun-chien and Smith, Henry E., An Economic Analysis of Civil versus Common Law Property (February 17, 2012). Notre Dame Law Review, Forthcoming.
Common law and civil law property appear to be quite different, with the former emphasizing pieces of ownership called estates and the latter focusing on holistic ownership. And yet the two systems are remarkably similar in their broad outlines, for functional reasons. This paper offers a transaction cost explanation for the practical similarity and the differing styles of delineating property and ownership in the two systems. As opposed to the “complete” property system that could obtain in the world of zero transaction costs, actual property systems employ structures characterized by shortcuts in order to achieve property’s substantive goals of protecting interests in use. Overlooking this structure leads to the bundle of rights picture of property, even though property is a structured bundle of relationships. The architecture of property consists in part of four basic relationships, and a number of characteristic features of property automatically arise out this architecture, including exclusion rights, in rem status, and running to successors. Where civil law and common law differ is in their style of delineation, which reflects the path dependence of initial investment in feudal fragmentation in the common law and Roman-inspired holistic dominion in civil law. This transaction cost explanation for the functional similarities but different delineation process in the two systems promises to put the comparative law of property on a sounder descriptive footing.
Chang, Yun-chien and Smith, Henry E., An Economic Analysis of Civil versus Common Law Property (February 17, 2012). Notre Dame Law Review, Forthcoming.
Legal Colonialism – Americanization of Legal Education in Israel
Abstract:
The American influence on the legal education in Israel has been significantly increased during the last three decades. Many faculty members gained their post-graduate education in American law schools. This phenomenon emerged out of both economic and cultural considerations. The result is an importation of research and teaching practices as well as the importation of theories and values. This process has significant influence on the Israeli legal system. The legal scholarship turns to be more universal and less local. English turns to be the main language of the legal academic discourse. The focus of the academic legal research is gradually concentrating on American contents and American materials. These phenomena have negative influences on the interaction of academy and legal practitioners in Israel. Moreover, theories that emerged in an American environment are percolated from the academic world to policy makers and judges. These policies have been applied as a solution for local and unique Israeli problems. The unique characteristics of the Israeli situation are neglected. Three examples to the latter are brought from the field of judicial cases concerning land policy. The first is the influence of the Brown v. Board of Education precedent on Israel policy with regard to allocation of land resources to minorities in a Jewish state. The second is the influence of American theories concerning indigenous people and distributive justice on the privatization of agricultural land in Israel. The third is the influence of American theories of distributive justice and social responsibility on the attitude of the Israeli legal world to land expropriations. These three examples show that the influence of the American education may go beyond the legal sphere and have a significant influence on basic political interior problems of foreign nations. Thus, the Israeli case may be a prism of a modern way of colonialism – a legal colonialism. This kind of superpower influence on small friendly nations is not exercised by military or economic pressure, but by an export of academic education. It may be noticed in Obama's insight that "American values are America's great export to the world.
Sandberg, Haim, Legal Colonialism – Americanization of Legal Education in Israel (June 8, 2010). Global Jurist 10.2 (2012).
The American influence on the legal education in Israel has been significantly increased during the last three decades. Many faculty members gained their post-graduate education in American law schools. This phenomenon emerged out of both economic and cultural considerations. The result is an importation of research and teaching practices as well as the importation of theories and values. This process has significant influence on the Israeli legal system. The legal scholarship turns to be more universal and less local. English turns to be the main language of the legal academic discourse. The focus of the academic legal research is gradually concentrating on American contents and American materials. These phenomena have negative influences on the interaction of academy and legal practitioners in Israel. Moreover, theories that emerged in an American environment are percolated from the academic world to policy makers and judges. These policies have been applied as a solution for local and unique Israeli problems. The unique characteristics of the Israeli situation are neglected. Three examples to the latter are brought from the field of judicial cases concerning land policy. The first is the influence of the Brown v. Board of Education precedent on Israel policy with regard to allocation of land resources to minorities in a Jewish state. The second is the influence of American theories concerning indigenous people and distributive justice on the privatization of agricultural land in Israel. The third is the influence of American theories of distributive justice and social responsibility on the attitude of the Israeli legal world to land expropriations. These three examples show that the influence of the American education may go beyond the legal sphere and have a significant influence on basic political interior problems of foreign nations. Thus, the Israeli case may be a prism of a modern way of colonialism – a legal colonialism. This kind of superpower influence on small friendly nations is not exercised by military or economic pressure, but by an export of academic education. It may be noticed in Obama's insight that "American values are America's great export to the world.
Sandberg, Haim, Legal Colonialism – Americanization of Legal Education in Israel (June 8, 2010). Global Jurist 10.2 (2012).
Torts, Courts, and Legislatures Comparative Remarks on Civil Law Codifications of Tort Law
Abstract:
This contribution reflects on the relationship between courts and the legislature in tort law from a comparative European perspective. Though there is a substantial body of comparative literature on tort law as such, the relationship between the judiciary and the legislature in comparative tort law has received significantly attention. Here, the approach under civil law systems to tort law is and the interaction between the judiciary and the legislature under those systems is explored. If we look beyond the misconception among common lawyers that civil law courts act merely as ‘porte-parole de la loi’ there is much flexibility to be found. In tort cases, civil law courts may assume a role that complements the role assumed by the legislature. Where codes give leeway for case law to create, develop, and innovate in tort law, courts will fill the space. Where the legislature is active, courts may assume a more subservient role. Yet, there is no single concept of power balance in civil law tort systems. In some countries, courts may be more willing than in others to show policy initiative where the legislature fails to act. The overall conclusion must be that although there is a fundamental difference in the starting point between the common law and those legal systems that have a codified tort law system, the balance between the legislature and the courts may be similar in many respects.
Van Boom, Willem H., Torts, Courts, and Legislatures Comparative Remarks on Civil Law Codifications of Tort Law (February 6, 2012).
This contribution reflects on the relationship between courts and the legislature in tort law from a comparative European perspective. Though there is a substantial body of comparative literature on tort law as such, the relationship between the judiciary and the legislature in comparative tort law has received significantly attention. Here, the approach under civil law systems to tort law is and the interaction between the judiciary and the legislature under those systems is explored. If we look beyond the misconception among common lawyers that civil law courts act merely as ‘porte-parole de la loi’ there is much flexibility to be found. In tort cases, civil law courts may assume a role that complements the role assumed by the legislature. Where codes give leeway for case law to create, develop, and innovate in tort law, courts will fill the space. Where the legislature is active, courts may assume a more subservient role. Yet, there is no single concept of power balance in civil law tort systems. In some countries, courts may be more willing than in others to show policy initiative where the legislature fails to act. The overall conclusion must be that although there is a fundamental difference in the starting point between the common law and those legal systems that have a codified tort law system, the balance between the legislature and the courts may be similar in many respects.
Van Boom, Willem H., Torts, Courts, and Legislatures Comparative Remarks on Civil Law Codifications of Tort Law (February 6, 2012).
Saturday, May 19, 2012
Enforcing Bilateral Promises: A Comparative Law and Economics Perspective
Abstract:
Parties often exchange promises of future performance with one another. Legal systems frame and regulate contracts involving the exchange of bilateral promises of future performance differently from one another. Two conceptual and practical questions often arise in these bilateral situations. Should a breaching promisor be allowed to force the performance of his non-breaching promisee? Should a breaching party be able to collect damages in a contract if his counterpart was also in breach? This paper examines these interrelated questions from a comparative law and economics perspective. We consider contracts in which parties make reciprocal promises of performance and study the incentives created by applying a defense of non-performance in unilateral breach cases and the “plaintiff in default” preclusion rules in bilateral breach cases.
Parisi, Francesco, Cenini, Marta and Luppi, Barbara, Enforcing Bilateral Promises: A Comparative Law and Economics Perspective (January 9, 2012). Minnesota Legal Studies Research Paper No. 12-03.
Parties often exchange promises of future performance with one another. Legal systems frame and regulate contracts involving the exchange of bilateral promises of future performance differently from one another. Two conceptual and practical questions often arise in these bilateral situations. Should a breaching promisor be allowed to force the performance of his non-breaching promisee? Should a breaching party be able to collect damages in a contract if his counterpart was also in breach? This paper examines these interrelated questions from a comparative law and economics perspective. We consider contracts in which parties make reciprocal promises of performance and study the incentives created by applying a defense of non-performance in unilateral breach cases and the “plaintiff in default” preclusion rules in bilateral breach cases.
Parisi, Francesco, Cenini, Marta and Luppi, Barbara, Enforcing Bilateral Promises: A Comparative Law and Economics Perspective (January 9, 2012). Minnesota Legal Studies Research Paper No. 12-03.
Toward a Methodology for Successful Legal Transplants
Abstract:
Global efforts to promote rule of law and good governance have led to renewed interest in legal transplants. Many reforms projects have focused on the substance of legal transplants, prescribing particular laws, practices or institutions, concepts, norms and attitudes – usually those found in the advanced economies of Euro-America – for developing countries. The results of such projects have been disappointing. The lackluster results have called attention to the need to develop a workable methodology for legal reforms, focusing on the processes of reform. Such a methodology must be based on a better theoretical and empirical understanding of the conditions that determine the success or failure of legal transplants. Part I provides a general overview of the legal transplant literature, focusing on descriptions, prediction and evaluation. One of the shortcomings of current rule of law promotion programs is that they tend to prescribe a common set of 'best practices' for all countries. Relatively little work has been done on differentiating developing countries and developing categories or ideal types based on the types of challenges they face. Accordingly, Part I lays the groundwork for a methodology of legal reforms based on differential analysis by first distinguishing between three 'exceptional cases': failed states, post-conflict states, and transitional states. In particular, Part I contrasts the particular problems facing low-income countries (LICs) with those facing middle-income countries (MICs). Part II then develops a preliminary methodological framework for assessing legal reforms and legal transplants. Part III concludes.
Peerenboom, Randall, Toward a Methodology for Successful Legal Transplants (January 9, 2012).
Global efforts to promote rule of law and good governance have led to renewed interest in legal transplants. Many reforms projects have focused on the substance of legal transplants, prescribing particular laws, practices or institutions, concepts, norms and attitudes – usually those found in the advanced economies of Euro-America – for developing countries. The results of such projects have been disappointing. The lackluster results have called attention to the need to develop a workable methodology for legal reforms, focusing on the processes of reform. Such a methodology must be based on a better theoretical and empirical understanding of the conditions that determine the success or failure of legal transplants. Part I provides a general overview of the legal transplant literature, focusing on descriptions, prediction and evaluation. One of the shortcomings of current rule of law promotion programs is that they tend to prescribe a common set of 'best practices' for all countries. Relatively little work has been done on differentiating developing countries and developing categories or ideal types based on the types of challenges they face. Accordingly, Part I lays the groundwork for a methodology of legal reforms based on differential analysis by first distinguishing between three 'exceptional cases': failed states, post-conflict states, and transitional states. In particular, Part I contrasts the particular problems facing low-income countries (LICs) with those facing middle-income countries (MICs). Part II then develops a preliminary methodological framework for assessing legal reforms and legal transplants. Part III concludes.
Peerenboom, Randall, Toward a Methodology for Successful Legal Transplants (January 9, 2012).
Constitutional Transplants, Borrowing, and Migrations
Abstract:
This paper, which will be published in the Oxford Handbook on Comparative Constitutional Law (M. Rosenfeld & A. Sajo, eds., forthcoming 2012), explores the borrowing and migration of constitutional ideas and institutions across jurisdictions. Despite the fact that comparative constitutional law is a form of comparative law, comparative constitutionalism has thus far largely ignored the rich debates in comparative law on the topic of legal transplants. I argue that those debates can illuminate our understanding of how constitutional doctrines and ideas travel. After noting the missing legacy of comparative legal thought in the constitutional realm, the paper studies the anatomy of constitutional transplants (object, timing, motivations and patterns) and provides a framework for their normative justifications. The paper concludes with remarks on constitutional convergence.
Perju, Vlad, Constitutional Transplants, Borrowing, and Migrations (January 9, 2012). OXFORD HANDBOOK ON COMPARATIVE CONSTITUTIONAL LAW, M. Rosenfeld , A. Sajo, eds., Oxford University Press, 2012; Boston College Law School Legal Studies Research Paper No. 254.
This paper, which will be published in the Oxford Handbook on Comparative Constitutional Law (M. Rosenfeld & A. Sajo, eds., forthcoming 2012), explores the borrowing and migration of constitutional ideas and institutions across jurisdictions. Despite the fact that comparative constitutional law is a form of comparative law, comparative constitutionalism has thus far largely ignored the rich debates in comparative law on the topic of legal transplants. I argue that those debates can illuminate our understanding of how constitutional doctrines and ideas travel. After noting the missing legacy of comparative legal thought in the constitutional realm, the paper studies the anatomy of constitutional transplants (object, timing, motivations and patterns) and provides a framework for their normative justifications. The paper concludes with remarks on constitutional convergence.
Perju, Vlad, Constitutional Transplants, Borrowing, and Migrations (January 9, 2012). OXFORD HANDBOOK ON COMPARATIVE CONSTITUTIONAL LAW, M. Rosenfeld , A. Sajo, eds., Oxford University Press, 2012; Boston College Law School Legal Studies Research Paper No. 254.
Comparing Remedies for Breach of Contract in Italian and English Law
Abstract:
This detailed comparative research seeks to clarify three particular remedies available in English and Italian Law from a breach of contract. These are termination of contract, performance and monetary relief. This research has followed a systematic comparative methodology and by doing so a comprehensive conclusion on remedies in Italian and English Law has been reached. This research has ensured a full analysis of these remedies by looking beyond English and Italian Law by comparing legal history, legal systems, legal culture, legal tradition and legal jurisprudence. This research concludes by showing the importance of remedies beyond contract law. Furthermore, it will also show why it is important to carry out comparative research with a clear methodology because as harmonisation of Laws intensifies it is important that the true function of a countries Law is not overlooked and lost within the legal terminology of another legal system.
Ficetola, Luca, Comparing Remedies for Breach of Contract in Italian and English Law (May 3, 2011).
This detailed comparative research seeks to clarify three particular remedies available in English and Italian Law from a breach of contract. These are termination of contract, performance and monetary relief. This research has followed a systematic comparative methodology and by doing so a comprehensive conclusion on remedies in Italian and English Law has been reached. This research has ensured a full analysis of these remedies by looking beyond English and Italian Law by comparing legal history, legal systems, legal culture, legal tradition and legal jurisprudence. This research concludes by showing the importance of remedies beyond contract law. Furthermore, it will also show why it is important to carry out comparative research with a clear methodology because as harmonisation of Laws intensifies it is important that the true function of a countries Law is not overlooked and lost within the legal terminology of another legal system.
Ficetola, Luca, Comparing Remedies for Breach of Contract in Italian and English Law (May 3, 2011).
Comparative Law as Transnational Law: A Decade of the German Law Journal
Abstract:
In July, 2009, the German Law Journal marked its first decade with a conference hosted by the Bundesministerium der Justiz (Federal Ministry of Justice) in Berlin. The resulting discussion of the conference underscored two points: there was easy consensus that we are living in a transnational era, and that there was little agreement on how to define, or, indeed, imagine transnational law and the transnationalization of legal cultures. The majority of the participants at the conference, the scholars and commentators who have contributed to the German Law Journal during its first decade have inclined toward the engagement approach to transnational law. They also have performed or lived the engagement – implicitly – in ways that the German Law Journal uniquely make possible with its monthly, online, English-language publication of scholarship and commentary on developments in “German, European, and International jurisprudence.” The German Law Journal is an example of transnational law in action. The German jurists who regularly write about German law in English for the Journal are inherently involved in a transnational law encounter even if they do not consciously acknowledge the phenomenon. Additionally, the Journal’s broad mandate fosters engagement between legal systems in a way that is fundamental to transnational law and the transnationalization of legal cultures ...
Miller, Russell and Zumbansen, Peer, Comparative Law as Transnational Law: A Decade of the German Law Journal (2011). COMPARATIVE LAW AS TRANSNATIONAL LAW: A DECADE OF THE GERMAN LAW JOURNAL, R. Miller & P. Zumbansen, eds., Oxford University Press, 2011; Washington & Lee Legal Studies Paper No. 2011-25.
In July, 2009, the German Law Journal marked its first decade with a conference hosted by the Bundesministerium der Justiz (Federal Ministry of Justice) in Berlin. The resulting discussion of the conference underscored two points: there was easy consensus that we are living in a transnational era, and that there was little agreement on how to define, or, indeed, imagine transnational law and the transnationalization of legal cultures. The majority of the participants at the conference, the scholars and commentators who have contributed to the German Law Journal during its first decade have inclined toward the engagement approach to transnational law. They also have performed or lived the engagement – implicitly – in ways that the German Law Journal uniquely make possible with its monthly, online, English-language publication of scholarship and commentary on developments in “German, European, and International jurisprudence.” The German Law Journal is an example of transnational law in action. The German jurists who regularly write about German law in English for the Journal are inherently involved in a transnational law encounter even if they do not consciously acknowledge the phenomenon. Additionally, the Journal’s broad mandate fosters engagement between legal systems in a way that is fundamental to transnational law and the transnationalization of legal cultures ...
Miller, Russell and Zumbansen, Peer, Comparative Law as Transnational Law: A Decade of the German Law Journal (2011). COMPARATIVE LAW AS TRANSNATIONAL LAW: A DECADE OF THE GERMAN LAW JOURNAL, R. Miller & P. Zumbansen, eds., Oxford University Press, 2011; Washington & Lee Legal Studies Paper No. 2011-25.
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