"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.
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