M 1 T1: introduction to comparative law

Question 1

What three questions must be asked?

Answer 1

1. What does it compare?
2. How does it compare?
3. Why does it compare?

Question 2

What does comparative law compare?

Answer 2

Positive law between states on a macro and micro level

Question 3

How does comparative law compare different legal systems?

Answer 3

using the comparative method adding culture and functionality: juridical, cultural element and principle of functionality

Question 4

Why do we compare different legal systems?

Answer 4

To understand, improve and resolve problems both nationally and internationally

Question 5

What forms the cornerstone of comparative legal systems?

Answer 5

Global legal families

Question 6

What is Positive law?

Answer 6

human-made law that obliges and specify an action

Question 7

Comparative law incorporates the element of (?) by comparing various legal systems that exist in the world

Answer 7

internationalism

Question 8

What is comparative law?

Answer 8

A rational process of systemic analysis based on the comparative method supplemented with culture and the principle of functionality

Question 9

What are the two levels of comparison?

Answer 9

Macro and micro

Question 10

Macro or micro?
Broad view: legal systems as a whole
Legal families or countries
Ex: Common Law vs Continental law or Spain vs China

Answer 10

Macro-comparison

Question 11

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

Answer 11

Micro

Question 12

Is micro and macro comparison always studied separately?

Answer 12

No, it is often difficult to draw a line between the two, and one often has to use both.

Question 13

what is meant with law having a trans-national element?

Answer 13

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.

Question 14

What are the two different ways a country can be influenced by another legal system?

Answer 14

1. through imposition through colonization

2. Voluntarily

Question 15

What is the Latin definition of jurisprudence?

Answer 15

the study, knowledge, or science of law. Philosophy of law.

Question 16

What is the function of comparative law on the national level?

Answer 16

• improvement of national legal systems

- solution of particular problems

Question 17

What is the function of comparative law on the international level?

Answer 17

• Harmonization and unification of legal systems

- Improvement of international relations

Question 18

What fields of law is comparative law related to?

Answer 18

ALL fields of law

1. History of law
2. Philosophy of law/jurisprudence
3. sociology of law
4. General theory of law

Question 19

How does comparative law contribute to the History of law?

Answer 19

investigation.

Question 20

What are the differences between comparative law and history of law?

Answer 20

Comparative law undertakes a synchronic analysis. (done at a single point in time.)

History of law studies historical facts on a diachronic basis.

Question 21

How does comparative law contribute to the philosophy of law/jurisprudence?

Answer 21

by revealing a variety of concepts of law

Question 22

How does comparative law contribute to the sociology of law?

Answer 22

it relates provisions of other legal systems to the society where they originated and evolved.

Question 23

How does comparative law contribute to the general theory of law?

Answer 23

reveal basic concepts by situating ourselves outside our own legal systems to analyze them.

Question 24

What is the relationship between comparative law and private international law?

Answer 24

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.

Question 25

Private or Public law?

Which matrimonial financial regime applies when a Russian marries a Spaniard in Canada?

Answer 25

Private international law

Question 26

What is the relationship between comparative law and public international law?

Answer 26

it interprets and searches for common criteria by confronting legal systems with others.

Question 27

Comparative law is a part of…

Answer 27

juridical science

Question 28

what is the appropriate method in comparative law?

Answer 28

the juridical method

Question 29

What are the 4 stages of the comparative method?

Answer 29

1. Common starting point. What is the legal issue?
2. What are the different juridical rules, institutes or processes that are used in the states in question.
3. Find similarities and differences in solutions adopted by the states.
4. Assess the adopted solution to find their effectiveness or ineffectiveness in the case that is to be solved.

Question 30

What 3 aspects are included in the comparative method?

Answer 30

1. Juridical method
2. Cultural method
3. Principle of functionality

Question 31

How is the cultural component used in the comparative method?

Answer 31

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.

Question 32

An example of cultural proximity in the study of comparative law.

Answer 32

Similarities in law from Japan and Germany as both were societies in the process of industrialization with analogous commercial and economic needs.

Question 33

Why is language an example of the principle of functionality?

Answer 33

Language barriers will lead to different legal terminologies, and we can only compare rules and institutions that inherit the same function.

Question 34

Why can we not compare jurisprudence in Spain and Britain?

Answer 34

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.