Comparative law
- Why do we compare
- Meaningful comparison
- Best practices for making legal comparisons
- Tertium comparationis
- The problems of language
The common core project
Functionalism
Universalism
Postmodern comparative law
Comparative law method – Structural & analytical comparison
Legal families
Comparing Civil Procedure
Legal Culture
Socio-Legal Causality
The Enforcement of law
Legal Transplants
Judicial Dialogue
, Comparative law
Three dimensions of law
1. Areas of law (Contract law, tort law, constitutional law etc.)
2. Legal regimes (EU, US, England etc.…)
3. Legal methods (different approaches to legal knowledge: Legal rules, culture, history,
economics etc.)
Why do we compare?
- To seek to identify for instance, in a universal notion:
Ø similarities, provide just outcome for disputes….
- To see to identify for instance, in a pluralist notion:
Ø things that are different between similar legal systems (same term in similar legal
systems, but the meanings differ: for instance; Justice)
Meaningful comparison
- Meaningful comparison requires understanding the relationship between similarities
and differences
Ø Looking at sameness/difference à comparison then adds an analytical value
- We are comparing things that are similar in some way and compare them on the
basis of their differences
, Ø There is a similar basis and a meaningful difference
- There needs to be a point in the comparison, what do you want to get out of the
comparison?
- If they are NOT similar in some way à comparison is meaningless
- If things are NOT different enough à comparison is meaningless
- What makes any comparison meaningful, is the degree to which the contrasting
similarities and differences tell us something new about the thing that we are studying
Best practices for making legal comparisons
- Maintaining foreign terminology of terms that are likely to cause confusion when
translated
Ø (use Dutch, French and English word for “ownership”, when comparing it)
- Work first and foremost with primary legal sources
- Aspire for an internal or “neutral” perspective when researching foreign legal systems
Ø Aim is to understand the internal side of the legal system or at least neutral
perspective
- Remain aware of the researchers bias in the setup of the comparison
Ø Background knowledge that influences comparison
Ø For instance, in divorce proceeding comparison: bias on religion, countries culture
….
- Remain aware of what we do not know about foreign legal system
Ø Don’t pretend to know more than you actually do!!!!
Ø You won’t understand by just reading a civil code everything about that legal
system
- Be aware of our limited understanding
- Talk to people from foreign legal systems (judges, lawyers, scholars of that legal
system)
- Exercise caution when developing policy recommendations
Ø We might find out that one concept works very well, BUT we have to exercise
caution, because maybe there is a certain background needed or infrastructure
, Critical comparative law
Comparative law as politics
- Assumption: Law has an inherent political and ideological foundation
- Comparison of political dimension explains legal differences (+ vice versa?)
- When you compare, do you have an underlying political purpose to expose one
political/power system?
Ø We don’t just compare china and Sweden for fun, we are comparing it for a reason
- If being objective is not possible & law is not universal, are we trying to understand the
law OR how people perceive and talk about the law?
à Are we trying to understanding ourselves better instead of them?
à Are we trying to understand the others to learn about ourselves or are we trying to
just judge them and make us feel better?
- necessary to reconnect law with politics in order to make use of its ‘emancipatory’
(Befreiung von Bevormundung) and ‘counter-hegemonic’ (Vormachstellung) potential
Comparative law as discourse (Hermeneutical method)
“to deconstruct the ambiguities and indeterminacies within the dominant discourse, including
the internal contradictions in its assumptions about the character of foreign law”.
- Human communication is a crucial element in understanding the foreign laws
- Discourse as a tool to understand how other people perceive the world
- It is important to recognize the subjectivity of knowledge in order to understand the
relationship between “the self and the other”
- A subject is shaped by
Ø Own preconceptions
Ø Own language
- Accepting that law is truly foreign à Distancing (Respekt haben vor dem das wir nicht
wissen)
- Accepting that every legal system is singular (ubiquity of a legal system) à
Differencing (Einzigartigkeit jedes Rechtssystems)
- Why do we compare
- Meaningful comparison
- Best practices for making legal comparisons
- Tertium comparationis
- The problems of language
The common core project
Functionalism
Universalism
Postmodern comparative law
Comparative law method – Structural & analytical comparison
Legal families
Comparing Civil Procedure
Legal Culture
Socio-Legal Causality
The Enforcement of law
Legal Transplants
Judicial Dialogue
, Comparative law
Three dimensions of law
1. Areas of law (Contract law, tort law, constitutional law etc.)
2. Legal regimes (EU, US, England etc.…)
3. Legal methods (different approaches to legal knowledge: Legal rules, culture, history,
economics etc.)
Why do we compare?
- To seek to identify for instance, in a universal notion:
Ø similarities, provide just outcome for disputes….
- To see to identify for instance, in a pluralist notion:
Ø things that are different between similar legal systems (same term in similar legal
systems, but the meanings differ: for instance; Justice)
Meaningful comparison
- Meaningful comparison requires understanding the relationship between similarities
and differences
Ø Looking at sameness/difference à comparison then adds an analytical value
- We are comparing things that are similar in some way and compare them on the
basis of their differences
, Ø There is a similar basis and a meaningful difference
- There needs to be a point in the comparison, what do you want to get out of the
comparison?
- If they are NOT similar in some way à comparison is meaningless
- If things are NOT different enough à comparison is meaningless
- What makes any comparison meaningful, is the degree to which the contrasting
similarities and differences tell us something new about the thing that we are studying
Best practices for making legal comparisons
- Maintaining foreign terminology of terms that are likely to cause confusion when
translated
Ø (use Dutch, French and English word for “ownership”, when comparing it)
- Work first and foremost with primary legal sources
- Aspire for an internal or “neutral” perspective when researching foreign legal systems
Ø Aim is to understand the internal side of the legal system or at least neutral
perspective
- Remain aware of the researchers bias in the setup of the comparison
Ø Background knowledge that influences comparison
Ø For instance, in divorce proceeding comparison: bias on religion, countries culture
….
- Remain aware of what we do not know about foreign legal system
Ø Don’t pretend to know more than you actually do!!!!
Ø You won’t understand by just reading a civil code everything about that legal
system
- Be aware of our limited understanding
- Talk to people from foreign legal systems (judges, lawyers, scholars of that legal
system)
- Exercise caution when developing policy recommendations
Ø We might find out that one concept works very well, BUT we have to exercise
caution, because maybe there is a certain background needed or infrastructure
, Critical comparative law
Comparative law as politics
- Assumption: Law has an inherent political and ideological foundation
- Comparison of political dimension explains legal differences (+ vice versa?)
- When you compare, do you have an underlying political purpose to expose one
political/power system?
Ø We don’t just compare china and Sweden for fun, we are comparing it for a reason
- If being objective is not possible & law is not universal, are we trying to understand the
law OR how people perceive and talk about the law?
à Are we trying to understanding ourselves better instead of them?
à Are we trying to understand the others to learn about ourselves or are we trying to
just judge them and make us feel better?
- necessary to reconnect law with politics in order to make use of its ‘emancipatory’
(Befreiung von Bevormundung) and ‘counter-hegemonic’ (Vormachstellung) potential
Comparative law as discourse (Hermeneutical method)
“to deconstruct the ambiguities and indeterminacies within the dominant discourse, including
the internal contradictions in its assumptions about the character of foreign law”.
- Human communication is a crucial element in understanding the foreign laws
- Discourse as a tool to understand how other people perceive the world
- It is important to recognize the subjectivity of knowledge in order to understand the
relationship between “the self and the other”
- A subject is shaped by
Ø Own preconceptions
Ø Own language
- Accepting that law is truly foreign à Distancing (Respekt haben vor dem das wir nicht
wissen)
- Accepting that every legal system is singular (ubiquity of a legal system) à
Differencing (Einzigartigkeit jedes Rechtssystems)
