M 1 T1: introduction to comparative law Flashcards
What three questions must be asked?
- What does it compare?
- How does it compare?
- Why does it compare?
What does comparative law compare?
Positive law between states on a macro and micro level
How does comparative law compare different legal systems?
using the comparative method adding culture and functionality: juridical, cultural element and principle of functionality
Why do we compare different legal systems?
To understand, improve and resolve problems both nationally and internationally
What forms the cornerstone of comparative legal systems?
Global legal families
What is Positive law?
human-made law that obliges and specify an action
Comparative law incorporates the element of (?) by comparing various legal systems that exist in the world
internationalism
What is comparative law?
A rational process of systemic analysis based on the comparative method supplemented with culture and the principle of functionality
What are the two levels of comparison?
Macro and micro
Macro or micro?
Broad view: legal systems as a whole
Legal families or countries
Ex: Common Law vs Continental law or Spain vs China
Macro-comparison
Macro or micro?
Particular juridical questions within an individual system
Pragmatic and concrete questions
Ex: constitutional court, the principle of legality or rules of civil liability in the USA and Japan
Micro
Is micro and macro comparison always studied separately?
No, it is often difficult to draw a line between the two, and one often has to use both.
what is meant with law having a trans-national element?
what happens within another country that practices the same legal regime might influence the jurisprudence of our own country. There is no country in the world that has not been impacted by other legal systems.
What are the two different ways a country can be influenced by another legal system?
- through imposition through colonization
2. Voluntarily
What is the Latin definition of jurisprudence?
the study, knowledge, or science of law. Philosophy of law.
What is the function of comparative law on the national level?
- improvement of national legal systems
- solution of particular problems
What is the function of comparative law on the international level?
- Harmonization and unification of legal systems
- Improvement of international relations
What fields of law is comparative law related to?
ALL fields of law
- History of law
- Philosophy of law/jurisprudence
- sociology of law
- General theory of law
How does comparative law contribute to the History of law?
investigation.
What are the differences between comparative law and history of law?
Comparative law undertakes a synchronic analysis. (done at a single point in time.)
History of law studies historical facts on a diachronic basis.
How does comparative law contribute to the philosophy of law/jurisprudence?
by revealing a variety of concepts of law
How does comparative law contribute to the sociology of law?
it relates provisions of other legal systems to the society where they originated and evolved.
How does comparative law contribute to the general theory of law?
reveal basic concepts by situating ourselves outside our own legal systems to analyze them.
What is the relationship between comparative law and private international law?
When more than one nationality is involved, comparative law assesses the different systems to determine which of the two bodies of law offers the best solution.
Private or Public law?
Which matrimonial financial regime applies when a Russian marries a Spaniard in Canada?
Private international law
What is the relationship between comparative law and public international law?
it interprets and searches for common criteria by confronting legal systems with others.
Comparative law is a part of…
juridical science
what is the appropriate method in comparative law?
the juridical method
What are the 4 stages of the comparative method?
- Common starting point. What is the legal issue?
- What are the different juridical rules, institutes or processes that are used in the states in question.
- Find similarities and differences in solutions adopted by the states.
- Assess the adopted solution to find their effectiveness or ineffectiveness in the case that is to be solved.
What 3 aspects are included in the comparative method?
- Juridical method
- Cultural method
- Principle of functionality
How is the cultural component used in the comparative method?
to understand why some laws and institutions transfer successfully to third countries while others fail, and the legal systems under study should enjoy a certain degree of cultural proximity.
An example of cultural proximity in the study of comparative law.
Similarities in law from Japan and Germany as both were societies in the process of industrialization with analogous commercial and economic needs.
Why is language an example of the principle of functionality?
Language barriers will lead to different legal terminologies, and we can only compare rules and institutions that inherit the same function.
Why can we not compare jurisprudence in Spain and Britain?
Jurisprudence has a different meaning in the two systems. If we want to compare “jurisprudence” in the Spanish meaning we have to use the word case law.
