Abstract:
Globalization and Europeanization do not only produce coherence and uniformity but are flanked by differentiation and fragmentation, producing diverse and polycentric outcomes. This article puts forth reflections on European legal pluralism and a proposition for pluralist methodology. The author claims that in today’s Europe there is legal pluralism, which means that there are many over-lapping normative orders in Europe. It is claimed that Europe is fundamentally pluralistic. Hence there are overlapping non-coherent hierarchies and competing claims for normative power. This is conceptualized as polynomia. The article seeks to demonstrate that legal pluralism in the strong sense has penetrated into European legal doctrine. This state of affairs is claimed to result in a situation in which pluralism is not something that would concern legal anthropologists, legal historians or sociologist of law only. According to this article, doctrinal methods forged in the molds of legal centralism and monism are outdated and respond poorly to the present day European legal pluralism.
Husa, Jaakko, The Method is Dead, Long Live the Methods - European Polynomia and Pluralist Methodology (December 1, 2011). Legisprudence, Vol. 5, pp. 249-271, 2011 .
Purpose
Thursday, November 8, 2012
Thursday, November 1, 2012
The Road from Common Law to East-Central Europe: The Case of the Dissenting Opinion
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.
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.
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.
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