Comparative Legal Studies: Traditions and Transitions
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Comparative law may also provide insights into the question of legal transplants , i. The notion of legal transplants was coined by Alan Watson , one of the world's renowned legal scholars specializing in comparative law. Also, the usefulness of comparative law for sociology of law and law and economics and vice versa is very large.
The comparative study of the various legal systems may show how different legal regulations for the same problem function in practice. Arminjon, Nolde, and Wolff  believed that, for purposes of classifying the then contemporary legal systems of the world, it was required that those systems per se get studied, irrespective of external factors, such as geographical ones.
They proposed the classification of legal system into seven groups, or so-called 'families', in particular the. Especially with respect to the aggregating by David of the Civil and Common laws into a single family, David argued that the antithesis between the Common law and Civil law systems, is of a technical rather than of an ideological nature.
Of a different kind is, for instance, the antithesis between, say, Italian and American laws, and of a different kind than between the Soviet, Muslim, Hindu, or Chinese laws. According to David, the Civil law legal systems included those countries where legal science was formulated according to Roman law, whereas Common law countries are those dominated by judge-made law.
The characteristics that he believed uniquely differentiate the Western legal family from the other four are:. They maintain that, to determine such families, five criteria should be taken into account, in particular: the historical background, the characteristic way of thought, the different institutions, the recognized sources of law, and the dominant ideology. Using the aforementioned criteria, they classify the legal systems of the world into six families: . From Wikipedia, the free encyclopedia.
The Spirit of the Laws. New York: Hafner.
Cambridge University Press. Retrieved Mohr Siebeck. Is that not an arbitrary choice? Has the context been taken properly into account? Can the comparatist be sure that they are not projecting onto the observed? And so on and so forth. The stand-off between the two separate camps that wear the respective colours of comparative law and comparative legal studies is less clear-cut than one might think, considering that this schism goes right to the heart of the discipline and concerns the very contours of the field — namely, what is meant when we refer to comparative law, and what is its purpose?
In its simplest articulation the split can be described as being between theoretical and substantive concerns: the former camp sees itself as having more lofty concerns than its more empirically-oriented, practical counterpart. In effect, those of a more theoretical bent consider comparative law to be an activity in its own right, whereas those in the latter camp are more interested in undertaking comparison from the perspective of affecting things on the ground, such as law reform. Considering, then, that this is a fundamental debate regarding the scope and boundaries of the field itself, it is very difficult to condone the somewhat slapdash use of these categories throughout this volume.
While each author maintains a 32 For an account of the logistical differences of a contextual study, see Foster, supra, note 28, This lack of clarity is obviously a consequence of a general lack of consensus in the discipline, but an introductory text such as this should really have consistent application of conceptual terminology. Well, it sort of manages. Put simply, the Handbook copes valiantly with the former two self-posed challenges, but struggles somewhat to be convincing in accomplishing the latter.
I should say that this is not a criticism as such; in particular, the second and third aims appear to be mutually exclusive, as a successful engagement with some of the complex issues inherent to contemporary comparative law cannot be done in the same breath as a general introduction to the key principles of the discipline.
Legrand / Munday | Comparative Legal Studies: Traditions and Transitions |
Some of the papers in the volume are clearly intended to be introductory, outlining the background to, the main tenets of, and the current state of play in the given field,35 whereas others appear to pitch it at a higher level and assume a substantial knowledge of the literature and debates. Again, this is by no means a criticism of specific papers, merely an observation of a disjunction between the target audiences that causes the volume to lack both cohesion and any clear progression from section to section.
Roger Cotterrell also has helpful clarifications of difficult or advanced terminology throughout his text: see supra, note Nevertheless, and while these often contradictory arguments serve to exemplify some of the real battles in the field, they tend to leave the reader at somewhat of an impasse.
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While obviously also a result of the compilation nature of this text, the repetition has the effect of being rather disheartening for the reader, who may end up coming to the pessimistic conclusion that effective comparison is either impossible or so fraught with difficulty that it is not worth the effort it requires.
When it comes down to it, this Handbook is a worthy attempt to provide an accessible and useful overview of the fluid, contested and generally infuriating discipline of comparative law. It may end up being the case that its employment as a course textbook could have more to do with its format the inclusion of key concepts, questions for discussion, and further reading at the end of each chapter than with its content but, in terms of that content, this volume is undoubtedly a beneficial contribution to the literature in the field.
Related Papers. Doing so, contextual approach does not seem to be able to provide any. It is too busy fighting with the windmills of orthodoxy Some road signs at least. To simplify, for nationally oriented traditional lawyers all comparatists appear to be pretty much the same. If we comparatists would take our head out of the method-debate-bush we might realize that our discussions may look really strange to the uninitiated who may be interested in comparative study of law under different circumstances. This is in part the making of comparatist-theorists themselves.
However, I would like to argue that if one looks at contextually oriented studies and compares them with so-called mainstream studies there do not seem to be that many differences Different styles, yes. Different vocabulary, yes Different points of stress, yes. But incommensurability,. Are we destined to crude rule of thumbs or highly theoretical abstractions?
Is it science vs. Now, one interesting example of such a comparative law theorist that seems to struggle to get free from simple dichotomies, such as rules vs. Especially her interesting book Enigma of Comparative Law should be mentioned in this context The very structure of her book offers theoretical contrapuncts and variations on the theme. It would seem that multiple traditions may give rise to many and partly incompatible but yet. This idea of pluralism is, nonetheless, receiving critique from those who are more robust in their efforts to try to develop method for comparative study of law, as for example, Ralf Michaels However, if something in the more extreme critique of functionalism in comparative law has had a point it may have been right here: does it really pay off to try to be so very serious in the search of rigorous scientific ideals81?
Nor is she interested merely in black-letter rules or institutions as the functional orthodoxy, in practice, seems to be. Her position seems not to be neither post-modern nor orthodox or mainstream; it is something in-between and even something different altogether And in this sense, methodological problems i.
In fact she presents no applicable methods i. But, is there anything in the field today that would make it possible to break free from these sorts of methodological black-white dichotomies. One plausible idea that I find of specific interest is the idea of deep-level comparative law presented by Mark Van Hoecke In one of his articles, Van Hoecke does not speak of rules vs. Now, we may describe functional comparative lawyers as optimists, the majority probably, and people like Legrand we may describe as pessimists. The actual point here, for theme at hand, is that both of these seem to be inadequate theoretical attitudes in working out a decent methodology for comparative study of law.
One of the ideas of deep level comparative law is an attempt to break free from unfruitful paradoxes by concentrating on what is really important: the actual manner in which comparative law studies are. This practicality is plausible, indeed, in order to avoid too sterile a nature of methodological debate In short, the general idea of deep level comparative law seems to combine many of the different elements that extreme positions are disregarding in their black and white view of the world.
And what is more important is the fact that the idea of deep level comparative law is such that it can be applied in actual comparative studies i. Even so it combines rules, institutions and formal side of law with contextual elements of law and, thus, avoids unnecessary binary positions What it offers is a certain manner to follow a path, i.
However, deep level comparative law is certainly no miracle potion and it too, of course, has its defects. And yet, at least while studying western law it seems to provide some sort of general matrix for certain type of comparative law And, what is far more important is that it offers an example of how to discuss fruitfully about methodology In general, this approach to methodology itself in which theory and actual research are combined seems to be quite a recommendable way to proceed in methodology; not only theory, not only practical comparison, instead, theory with practical applications.
Summarily, comparative law research should not be too one-sidedly interested in rules, concepts or institutions only but it should really look. And in this way comparative study of law can have it all — rules, institutions and contexts. Instead of strange paradoxes and dichotomies there should be more flexibility — rules with history and sociology, institutions with social and historical backgrounds, cases with an anthropological environment and so on and so forth. In sum, we should have rules and contexts, we should have at least different shades or grey instead of mere black and white i.
In accord, the idea according to which there really is comparative method i.
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In accord, best approach is not always the same but it is adapted for the specific purposes of a researcher. Functionalism in comparative law seems to prove this, whereas Legrand refuses to construct an accessible methodology to begin with. In practice, if I am right in my methodological analysis, this may also suggest a step away from soloist type of comparativism and move towards research-group based comparative study of law in which we would have people with different special skills; lawyers, historians, sociologists, political scientists, linguists, and anthropologists This would ensure the use of multiple methods and several methodologies.
Right now, it would be quite healthy for a comparative lawyer or comparative legal researcher to think about what she is methodologically equipped to do and what she is not.
smeltd.co.uk/1055.php This does not, though, mean that comparatists could not learn new methods and approaches from other disciplines or to risk moving further away from purely formal sphere or law whether it be functions of rules or deep structures of legal systems On the other hand, not all comparatists can be experts in all of the different disciplines studying law. There is no need reminding that there are many more issues in comparative study of law than just those dealt with here Obviously this is the case.
Yet, the very design and purpose of this article was to invoke the fundamental question concerning the very nature of methodological thinking in comparative study of law. In a word, late modern comparative law needs a flexible understanding of comparative methodology. The idea of flexibility, methodological scale and teamwork would facilitate ruling out the need to.