Samenvatting WLS 2025
HC 1 Comparative law as a discipline
The objective of comparative law is to:
- Analyse the similarities and differences in how these systems address legal issue
- Understand the underlying principles and values
- Assessing effectiveness of different legal approaches
Comparative law = a method – lawyers always compare
Judges tend to use analogical reasoning: applying a rule derived from a similar case to a comparable
case
“knowing other legal systems requires a specific justification”
- Get under the skin of at least one other legal system, so grasping how people view the law,
how it operates, gaining a thorough understanding of legal systems from the inside out dive
into details of the system
Challenges of comparative legal research according to John Bell:
- Understand the full institutional setting out of which the issues and solutions arise : the legal
procedures, the organisation of the legal system, concepts, etc. In our own system much of it
is tacit knowledge (stilzwijgende kennis) – set aside the bias of your own system, reflect
critically on your own perspective, make tacit knowledge explicit
- The hermeneutic approach (interpretatiemethode): adopt the internal point of view of systems
compared, without believing either to be right or fair. One needs to interpret the foreign system
in light of the tacit knowledge that system has – you need to gain a deep understanding of
how the system operates and why it is structured the way it is
- You have to interpret the systems to enable a dialogue between them, and so not report them
from an internal view that comes as clearly packaged. Interpret the legal systems, make them
understandable to people from different backgrounds and enable a dialogue between the
systems
- Find a higher-level language to present the differences and similarities of your research . To
fully understand and compare, you have to go beyond their individual languages
Purposes of comparative law:
- Expands knowledge beyond your own legal system
- Gives the opportunity to reflect on one’s legal assumptions
- Provides room for judges to fill in the gaps in their practice by looking into foreign law
- Can be a source of inspiration for taking over foreign law
- Legal comparison leads to harmonization and unification of different legal systems
The functional method stands as a fundamental principle in comparative studies. According to
Zweigert and Kötz, the objectives of the functional method are the following:
- A tool for framing a neutral research question – the functional method assists with this to
prevent bias from one’s own system. Bias leads to a narrow view of comparing, resulting in
misleading conclusions
- A tool for finding a tertium comparationis – a quality the compared have in common (common
ground)
The comparative lawyer = the architect of society, constructing a framework that allows an unbiased
examination of legal systems and solutions
,Functionalism draws on that every society faces essentially the same problems, which can be solved
by different means but with similar results. Every legal system is open to the same questions, subject
to the same standards Zweigert and Kötz
Challenges of the functional method:
- A ‘praesumptio similitudinis’: a presumption that the practical results are similar (Z&K) can
lead to tunnel vision
o If one thinks the comparative research leads to nothing to report, one must rethink the
original question and purge it of dogmatic accretions of one’s own system
o Research leads to the conclusion that the systems reach same or similar practical
results. If not? Go back to check again whether the terms of research question were
purely functional
o No functional equivalent in foreign legal order? Check again whether terms in
question were purely functional, whether the net of researches was cast wide enough
- If no similar solutions found? Question is not properly formulated (praesumptio similitudinis).
Adams: if one has the same findings, the research question is debatable as there should be
differences to some extend – the presumption of Zweigert and Kötz of practical results being
similar, is a misunderstanding.
HC 2 Comparative legal research
The process of structuring comparative legal research:
- Identifying the research theme
- Formulating a research question: dominantly with the functional method
- Comparability and choice of systems
- Producing a scheme of comparability: developing a systematic framework that highlights,
explains and identifies a tertium comparationis
- Identifying legal rules
- Describing legal rules to compare
- Comparing
Tertium comparationis the common quality/ground that two compared things share
The end of life regulation case Adams – using the functional approach made the research evolve
from medical interventions to shorten life, to a study revealing more comprehensive understanding of
end of life regulations (made a meaningful comparison possible)
Case and country selection = influenced by objective and subjective factors
- Objective research aim, specific inquiries, consider what you aim to achieve
- Subjective personal capacities (language/time/resources)
Oderkerk guidelines for researchers
- Is the aim reflective in nature? Researcher should use minimal limitations, exploring both
similarities and differences among legal systems
- Aim is to form new legislation? Essential to include systems that offer valuable insights, with
similar socio-economic structures
- Aim is to develop legislation on supranational level? Researcher should focus on the systems
that require harmonization/unification/provide valuable lessons
Gluckman’s pragmatic approach, Bohannan critic
, - Gluckman gave, in his comparative research, English equivalents to Barotse legal concepts.
Bohannan criticized this and argued that this approach was not suitable, for it forced foreign
legal concepts onto the unique legal custom of African tribes. Bohannan believed that familiar
technology could lead to misunderstanding and the assumption that different legal systems
are comparable. This then leads to tunnel vision, confusion, because the African legal system
would be viewed through the lens of Western concepts
- Gluckman acknowledges this and shares the view. If there is no suitable English term for the
original African terminology, one should use the original. However, using familiar terminology
could facilitate effective communication about a foreign system. Bohannan says it should be
coded into a computer language to be objectified as much as possible
- Gluckman had a pragmatic approach, emphasizing practicality of using recognizable
language for different systems. Bohannan was concerned of tunnel vision and bias. An
overarching term to compare the two systems could be the best solution, John Bell speaking
for example of a higher level language
- Adams agrees with both!
HC 3 Comparing judicial reasoning
Adams argues that one cannot do comparative law on the basis of a ‘lonely planet’ guide; this offers
basic information and surface level insights one if purposefully looking for. It lacks depth and detail
necessary for thorough comparative analysis. One should use good binoculars with attention for
similarities and differences. This enables comparative lawyers to identify nuances that are not
immediately apparent, symbolizes the tools needed to zoom in and observe legal systems closely, and
to zoom out for a broader perspective
Being familiar with the language of the legal system being analysed is essential for a comprehensive
understanding of its depth. This ensures reliable and in-depth analysis of the foreign legal system.
Finding a full equivalence is hard, each language being specific to their own system. It is possible to
leave the terminology untranslated, or to use near-equivalent terms. Avoid misleading translations
though. By paraphrasing and neologism, one can give new meaning to an existing word or expression
American versus French high court reasoning
- Adams compares these reasonings. In America, the Heller case was about the fundamental
right of people to keep and bear arms. In France, the case of the same-sex marriage of the
Court was selected, where the French law rejects the appeal.
- What is important about this? The American court provides a long judgement of around 150
pages and the French court is a few sentences based on fundamental right
- John Dawson, an American scholar, criticizes French courts for their extreme concise
decisions. By being concise, French courts are not shaping/interpreting the law, but merely
explaining how it works. He thinks the format after the French revolution stays unchanged.
The thinks French judges avoid their responsibility of making and explaining decisions by only
applying the law without acknowledgement, and this is unacceptable
- Mitchel Lasser analysed that there exists an argumentative universe in which French
magistrates argue in the social repercussions of past, present and future judicial decisions.
French courts discuss the cases more behind the scenes, the French judges represent the
value of the French people, reflecting societal norms and interests.
Adams argues two ways of looking at this:
- Traditional point of view: French system is more formal, American is more-ended, open and
transparent
- Novel point of view: America is more formal, judges are including everything in the judgment.
French system is more open-ended, with unofficial judicial discourse not visible in the
judgment.
HC 1 Comparative law as a discipline
The objective of comparative law is to:
- Analyse the similarities and differences in how these systems address legal issue
- Understand the underlying principles and values
- Assessing effectiveness of different legal approaches
Comparative law = a method – lawyers always compare
Judges tend to use analogical reasoning: applying a rule derived from a similar case to a comparable
case
“knowing other legal systems requires a specific justification”
- Get under the skin of at least one other legal system, so grasping how people view the law,
how it operates, gaining a thorough understanding of legal systems from the inside out dive
into details of the system
Challenges of comparative legal research according to John Bell:
- Understand the full institutional setting out of which the issues and solutions arise : the legal
procedures, the organisation of the legal system, concepts, etc. In our own system much of it
is tacit knowledge (stilzwijgende kennis) – set aside the bias of your own system, reflect
critically on your own perspective, make tacit knowledge explicit
- The hermeneutic approach (interpretatiemethode): adopt the internal point of view of systems
compared, without believing either to be right or fair. One needs to interpret the foreign system
in light of the tacit knowledge that system has – you need to gain a deep understanding of
how the system operates and why it is structured the way it is
- You have to interpret the systems to enable a dialogue between them, and so not report them
from an internal view that comes as clearly packaged. Interpret the legal systems, make them
understandable to people from different backgrounds and enable a dialogue between the
systems
- Find a higher-level language to present the differences and similarities of your research . To
fully understand and compare, you have to go beyond their individual languages
Purposes of comparative law:
- Expands knowledge beyond your own legal system
- Gives the opportunity to reflect on one’s legal assumptions
- Provides room for judges to fill in the gaps in their practice by looking into foreign law
- Can be a source of inspiration for taking over foreign law
- Legal comparison leads to harmonization and unification of different legal systems
The functional method stands as a fundamental principle in comparative studies. According to
Zweigert and Kötz, the objectives of the functional method are the following:
- A tool for framing a neutral research question – the functional method assists with this to
prevent bias from one’s own system. Bias leads to a narrow view of comparing, resulting in
misleading conclusions
- A tool for finding a tertium comparationis – a quality the compared have in common (common
ground)
The comparative lawyer = the architect of society, constructing a framework that allows an unbiased
examination of legal systems and solutions
,Functionalism draws on that every society faces essentially the same problems, which can be solved
by different means but with similar results. Every legal system is open to the same questions, subject
to the same standards Zweigert and Kötz
Challenges of the functional method:
- A ‘praesumptio similitudinis’: a presumption that the practical results are similar (Z&K) can
lead to tunnel vision
o If one thinks the comparative research leads to nothing to report, one must rethink the
original question and purge it of dogmatic accretions of one’s own system
o Research leads to the conclusion that the systems reach same or similar practical
results. If not? Go back to check again whether the terms of research question were
purely functional
o No functional equivalent in foreign legal order? Check again whether terms in
question were purely functional, whether the net of researches was cast wide enough
- If no similar solutions found? Question is not properly formulated (praesumptio similitudinis).
Adams: if one has the same findings, the research question is debatable as there should be
differences to some extend – the presumption of Zweigert and Kötz of practical results being
similar, is a misunderstanding.
HC 2 Comparative legal research
The process of structuring comparative legal research:
- Identifying the research theme
- Formulating a research question: dominantly with the functional method
- Comparability and choice of systems
- Producing a scheme of comparability: developing a systematic framework that highlights,
explains and identifies a tertium comparationis
- Identifying legal rules
- Describing legal rules to compare
- Comparing
Tertium comparationis the common quality/ground that two compared things share
The end of life regulation case Adams – using the functional approach made the research evolve
from medical interventions to shorten life, to a study revealing more comprehensive understanding of
end of life regulations (made a meaningful comparison possible)
Case and country selection = influenced by objective and subjective factors
- Objective research aim, specific inquiries, consider what you aim to achieve
- Subjective personal capacities (language/time/resources)
Oderkerk guidelines for researchers
- Is the aim reflective in nature? Researcher should use minimal limitations, exploring both
similarities and differences among legal systems
- Aim is to form new legislation? Essential to include systems that offer valuable insights, with
similar socio-economic structures
- Aim is to develop legislation on supranational level? Researcher should focus on the systems
that require harmonization/unification/provide valuable lessons
Gluckman’s pragmatic approach, Bohannan critic
, - Gluckman gave, in his comparative research, English equivalents to Barotse legal concepts.
Bohannan criticized this and argued that this approach was not suitable, for it forced foreign
legal concepts onto the unique legal custom of African tribes. Bohannan believed that familiar
technology could lead to misunderstanding and the assumption that different legal systems
are comparable. This then leads to tunnel vision, confusion, because the African legal system
would be viewed through the lens of Western concepts
- Gluckman acknowledges this and shares the view. If there is no suitable English term for the
original African terminology, one should use the original. However, using familiar terminology
could facilitate effective communication about a foreign system. Bohannan says it should be
coded into a computer language to be objectified as much as possible
- Gluckman had a pragmatic approach, emphasizing practicality of using recognizable
language for different systems. Bohannan was concerned of tunnel vision and bias. An
overarching term to compare the two systems could be the best solution, John Bell speaking
for example of a higher level language
- Adams agrees with both!
HC 3 Comparing judicial reasoning
Adams argues that one cannot do comparative law on the basis of a ‘lonely planet’ guide; this offers
basic information and surface level insights one if purposefully looking for. It lacks depth and detail
necessary for thorough comparative analysis. One should use good binoculars with attention for
similarities and differences. This enables comparative lawyers to identify nuances that are not
immediately apparent, symbolizes the tools needed to zoom in and observe legal systems closely, and
to zoom out for a broader perspective
Being familiar with the language of the legal system being analysed is essential for a comprehensive
understanding of its depth. This ensures reliable and in-depth analysis of the foreign legal system.
Finding a full equivalence is hard, each language being specific to their own system. It is possible to
leave the terminology untranslated, or to use near-equivalent terms. Avoid misleading translations
though. By paraphrasing and neologism, one can give new meaning to an existing word or expression
American versus French high court reasoning
- Adams compares these reasonings. In America, the Heller case was about the fundamental
right of people to keep and bear arms. In France, the case of the same-sex marriage of the
Court was selected, where the French law rejects the appeal.
- What is important about this? The American court provides a long judgement of around 150
pages and the French court is a few sentences based on fundamental right
- John Dawson, an American scholar, criticizes French courts for their extreme concise
decisions. By being concise, French courts are not shaping/interpreting the law, but merely
explaining how it works. He thinks the format after the French revolution stays unchanged.
The thinks French judges avoid their responsibility of making and explaining decisions by only
applying the law without acknowledgement, and this is unacceptable
- Mitchel Lasser analysed that there exists an argumentative universe in which French
magistrates argue in the social repercussions of past, present and future judicial decisions.
French courts discuss the cases more behind the scenes, the French judges represent the
value of the French people, reflecting societal norms and interests.
Adams argues two ways of looking at this:
- Traditional point of view: French system is more formal, American is more-ended, open and
transparent
- Novel point of view: America is more formal, judges are including everything in the judgment.
French system is more open-ended, with unofficial judicial discourse not visible in the
judgment.
