[Tomaso Ferando, Critical Legal Thinking, 28 May 2012]
Purpose
Saturday, June 23, 2012
Private Legal Transplants: Bright and dark nature of an unnoticed phenomenon
"Only a few months ago, the social image of prominent transnational enterprises such as Apple and HP was threatened by media reporting several violations of labor rights by Foxconn, the main contract manufacturer for electronics companies such as these, and which is located in the People’s Republic of China ..." (more)
Sunday, June 17, 2012
Code vs. Code: Nationalist and Internationalist Images of the Code Civil in the French Resistance to a European Codification
Abstract:
French academics reacted to announcements about a possible future European civil code ten years ago in the way in which Americans reacted to the Japanese attack on Pearl Harbor 1940: first with shock, then with rearmament, finally with attempted counterattacks. Military metaphors abound. Yet the defense of the French Code Civil against a European civil code is tricky: they must defend one Code against another. The images drawn of codes are therefor of particular interest for our understanding both of civil codes and of legal nationalism. Often, two mutually exclusive images are presented at the same time. In cultural terms, the code civil is both traditional and revolutionary, both linguistically determined and independent of its language, both an expression of values and merely formal and neutral. Politically, the code civil is legitimated both in democracy and technocracy, it expresses both self-determination and imperialism, it is about both pluralism and universalism. Necessarily, in such juxtapositions, the same characteristics must be assigned to a European Code, making the arguments ultimately self-refuting. Nonetheless, the point is not to dismiss these defenses. Rather, they should be understood as expressions of faith — and the discussion over a European Code resembles, in part, a religious war.
Michaels, Ralf, Code vs. Code: Nationalist and Internationalist Images of the Code Civil in the French Resistance to a European Codification (May 22, 2012). European Review of Contract Law, Vol. 8, Forthcoming 2012.
French academics reacted to announcements about a possible future European civil code ten years ago in the way in which Americans reacted to the Japanese attack on Pearl Harbor 1940: first with shock, then with rearmament, finally with attempted counterattacks. Military metaphors abound. Yet the defense of the French Code Civil against a European civil code is tricky: they must defend one Code against another. The images drawn of codes are therefor of particular interest for our understanding both of civil codes and of legal nationalism. Often, two mutually exclusive images are presented at the same time. In cultural terms, the code civil is both traditional and revolutionary, both linguistically determined and independent of its language, both an expression of values and merely formal and neutral. Politically, the code civil is legitimated both in democracy and technocracy, it expresses both self-determination and imperialism, it is about both pluralism and universalism. Necessarily, in such juxtapositions, the same characteristics must be assigned to a European Code, making the arguments ultimately self-refuting. Nonetheless, the point is not to dismiss these defenses. Rather, they should be understood as expressions of faith — and the discussion over a European Code resembles, in part, a religious war.
Michaels, Ralf, Code vs. Code: Nationalist and Internationalist Images of the Code Civil in the French Resistance to a European Codification (May 22, 2012). European Review of Contract Law, Vol. 8, Forthcoming 2012.
Thursday, June 14, 2012
Stare Decisis - A Universally Misunderstood Idea?
Abstract:
In this article, I argue against the overstatement of the binding effects of precedent in common law and against the understatement of the relevance of precedent in civil law. I try to show that judges and courts in both kind of systems have to acknowledge relevant precedents and then provide persuasive reasons for following or not following them. Blindly following precedent, just as blind application of statutes, is acceptable only in the 'empire of mechanical jurisprudence'. Ignoring precedent in the name of judicial independence, on the other hand, is acceptable only in the empire of arbitrary jurisprudence. Legal systems subscribing to the rule of law can neither be mechanical nor arbitrary. They have to care about legitimacy of the judicial process. They have to explain themselves and they have to do so persuasively.
Emmert, Frank, Stare Decisis - A Universally Misunderstood Idea? (May 7, 2012).
In this article, I argue against the overstatement of the binding effects of precedent in common law and against the understatement of the relevance of precedent in civil law. I try to show that judges and courts in both kind of systems have to acknowledge relevant precedents and then provide persuasive reasons for following or not following them. Blindly following precedent, just as blind application of statutes, is acceptable only in the 'empire of mechanical jurisprudence'. Ignoring precedent in the name of judicial independence, on the other hand, is acceptable only in the empire of arbitrary jurisprudence. Legal systems subscribing to the rule of law can neither be mechanical nor arbitrary. They have to care about legitimacy of the judicial process. They have to explain themselves and they have to do so persuasively.
Emmert, Frank, Stare Decisis - A Universally Misunderstood Idea? (May 7, 2012).
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