Abstract:
The paper has the purpose of telling the story of dissenting opinions and discusses the use of this instrument by constitutional courts in a comparative perspective. The gradual spreading of dissenting opinions all over Europe illustrates that the countries of East-Central Europe emerging from Communism, in many aspects, followed the German model of constitutional justice as a full package, without seeing it first in the details, but only enriching it with new competencies. The paper examines the 'migration' of this legal phenomenon that left England for the United States in the baggage of common law, then moved to Germany in order to take part in the reconstruction of a country destroyed by a war and an extremist ideology, that subsequently travelled to Spain, where it served to uphold and renew judicial traditions, and finally arrived in East-Central Europe to help in the building of constitutional democracy.
Kelemen, Katalin, The Road from Common Law to East-Central Europe: The Case of the Dissenting Opinion (October 2010). Paper presented at the Second Central and Eastern European Forum for Young Legal, Social and Political Theorists, organized in Budapest, 21-22 May 2010, published in P. Cserne−M. Könczöl (eds), Legal and Political Theory in the Post-National Age, Frankfurt-[etc.], Peter Lang Publ., 2011, p. 118-134.
Purpose
Thursday, November 1, 2012
Friday, October 26, 2012
Mixed and Mixing Systems Worldwide: A Preface
Abstract:
In this volume the participating authors explore the complexity of contemporary scholarship on mixed and plural legal systems, both in the "third legal family" and beyond. Antonios Platsas and Haim Sandberg each investigate aspects of the Israeli tradition. Platsas provides a general overview of what he calls "the enigmatic but unique nature of the Israeli legal system", while Sandberg looks at Israeli constitutional review. Biagio Andò discusses Malta, a system closely related to the classical mixed system, but until recently largely overlooked by mixed scholarship. Lukas Heckendorn Urscheler goes still further afield to explore Nepal’s hybrid system. Finally, the two South African selections show how fertile the study of its legal system is. Flip Schutte looks at South African property law. Gerrit Pienaar looks beyond the two Western traditions to customary law; in particular, to land tenure. All of the articles reflect a thriving, flowering subject that is no longer the merely internal focus of isolated and ignored jurisdictions, but research of obvious import far beyond explicitly mixed systems, to comparative law, legal history, and legal theory.
Donlan, Seán Patrick, Mixed and Mixing Systems Worldwide: A Preface (September 25, 2012). Potchefstroom Electronic Law Journal, Vol. 15, No. 3, 2012.
In this volume the participating authors explore the complexity of contemporary scholarship on mixed and plural legal systems, both in the "third legal family" and beyond. Antonios Platsas and Haim Sandberg each investigate aspects of the Israeli tradition. Platsas provides a general overview of what he calls "the enigmatic but unique nature of the Israeli legal system", while Sandberg looks at Israeli constitutional review. Biagio Andò discusses Malta, a system closely related to the classical mixed system, but until recently largely overlooked by mixed scholarship. Lukas Heckendorn Urscheler goes still further afield to explore Nepal’s hybrid system. Finally, the two South African selections show how fertile the study of its legal system is. Flip Schutte looks at South African property law. Gerrit Pienaar looks beyond the two Western traditions to customary law; in particular, to land tenure. All of the articles reflect a thriving, flowering subject that is no longer the merely internal focus of isolated and ignored jurisdictions, but research of obvious import far beyond explicitly mixed systems, to comparative law, legal history, and legal theory.
Donlan, Seán Patrick, Mixed and Mixing Systems Worldwide: A Preface (September 25, 2012). Potchefstroom Electronic Law Journal, Vol. 15, No. 3, 2012.
Tuesday, October 23, 2012
The Legal Origins Theory in Crisis
Abstract:
The Legal Origins Theory purports to predict how countries respond to economic and social problems. Specifically, the legal origins of the United States should strongly influence the manner it approaches economic problems and its approach should be distinct from the response of civil law countries. If the theory is accurate, America's legal tradition should have a profound impact on its response to the crisis. This Article seeks to test the boundaries of the theory by assessing whether it could have predicted the manner the U.S. responded to the current economic crisis. After analyzing the U.S. response to the crisis, this article reveals that such response runs fundamentally counter to its legal origins. This inconsistency suggests that political, social, and economic forces do more to explain the U.S. response to significant turmoil than its legal origins. It also suggests that the current crisis may have been so severe that it overwhelmed any explanatory or predictive value potentially derived from the legal origins theory.
Fairfax, Lisa M., The Legal Origins Theory in Crisis (2009). 2009 Brigham Young University Law Review, 1571-1617 (2009); GWU Legal Studies Research Paper No. 2012-94; GWU Law School Public Law Research Paper No. 2012-94.
The Legal Origins Theory purports to predict how countries respond to economic and social problems. Specifically, the legal origins of the United States should strongly influence the manner it approaches economic problems and its approach should be distinct from the response of civil law countries. If the theory is accurate, America's legal tradition should have a profound impact on its response to the crisis. This Article seeks to test the boundaries of the theory by assessing whether it could have predicted the manner the U.S. responded to the current economic crisis. After analyzing the U.S. response to the crisis, this article reveals that such response runs fundamentally counter to its legal origins. This inconsistency suggests that political, social, and economic forces do more to explain the U.S. response to significant turmoil than its legal origins. It also suggests that the current crisis may have been so severe that it overwhelmed any explanatory or predictive value potentially derived from the legal origins theory.
Fairfax, Lisa M., The Legal Origins Theory in Crisis (2009). 2009 Brigham Young University Law Review, 1571-1617 (2009); GWU Legal Studies Research Paper No. 2012-94; GWU Law School Public Law Research Paper No. 2012-94.
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