A Comparative Approach to the Legal Processas not capable of adequately describing modern systems of law. A process whereby legal concepts from a foreign jurisdiction are adopted or assimilated in another legal jurisdiction. It is suggested that the modus operandi should rather be not only to compare rules, but also to evaluate legal cultures.
Dit artikel is keer geraadpleegd. Dit artikel is 0 keer gedownload. The main reason being that there is no agreement on the kind of methodology to be followed, nor even on the methodologies that could be followed.
Others call comparative law merely a method of study and research or even a technique. Some regard it both as a comparative method and a comparative science of law, or see in comparative law more than one of these aspects.
It is immediately obvious that those who see comparative law as a method only do not tell us what that method is, leaving this issue unanswered or very vaguely covered, and those who think or feel that comparative law must be more than a mere method do not seem to agree on what this subject-matter is.
On the other hand, comparing domestic law with the way the same area has been regulated in one or more countries has become almost compulsory in doctrinal legal research. Also in legal practice, globalization and most notably Europeanization involve comparative research.
How should a comparative researcher cope with this apparent paradox? Basically, it is the aim of the research and the research question that will determine which methods could be useful.
Moreover, different methods may be combined, as they are complementary and not mutually exclusive. This paper focuses on scholarly comparative legal research, not on the use of foreign law by legislators or courts, but, of course, the methodological questions and answers will largely overlap.
At the end of the nineteenth century and early twentieth century, in France, Raymond Saleilles and others saw comparative law mainly as an instrument for improving domestic law and legal doctrine, as a way to renovating the fossilized approach of the still dominating Exegetic School to the Civil Code and its interpretation Saleillesp.
By the end of the twentieth century, many legal scholars in Europe considered comparative law to be the necessary instrument for a desirable harmonization of law within the EU.
Hence, according to the circumstances, there may be different aims and diverging reasons for comparing legal systems. He lists a comparative law as an instrument of learning and knowledge5xCompare: However, Glenn strongly criticizes much of the ideology that underlies traditional comparative law and largely still does today.
Nevertheless, even in a more open, pluralist and less constructivist comparative research, the mentioned aims are still largely valid, Glenn concludes. In concrete comparative research projects, it is the aim of the research and the research questions that will imply some form of comparative law or not.
If the aim of the research is making some part of the domestic law more coherent one may well do without any external comparison. If the aim is to harmonize the law, e.
However, importing rules and solutions from abroad may not work because of a difference in context. Hence, a more thorough contextual approach may be required.
A paramount example is the developments in family law, mainly in Europe, over the last half century see e. When comparing official state law in African countries with local customary law, one will notice that they show a tension between tradition and modernity, between Western law only followed by an elite and African law as the large majority of the population perceive it.
Hence, an anthropological approach that puts the law in context will be necessary for explaining this tension, for understanding it and for finding solutions for it.
All scholarly research implies comparisons. Here, we will focus on comparing national legal systems, as this is the most common geographical level of comparison. Here, we are not entering into that discussion Van Hoeckep.A Comparative Analysis of the Different Types of Laws and Legal Systems PAGES 3.
WORDS 2, View Full Essay. More essays like this: Not sure what I'd do without @Kibin - Alfredo Alvarez, student @ Miami University. Exactly what I needed. - Jenna Kraig, student @ UCLA. Wow. Most helpful essay resource ever!
C. Hertel, An Overview of Legal Systems Notarius International / Text and Translations page English text Traduction en français Deutsche Übersetzung Traduzzione al italiano Tradución al español Legal systems of the world – an overview* Content 1.
Preliminary remarks 2. The Common Law legal family 3. Above, when discussing the methods of comparative legal research, we have seen how, in most cases, comparatists focusing on methodology have tried to develop such a, relatively neutral, second-order language describing the concepts that constitute the different legal systems, even if in applied comparative research mostly first-order languages.
Comparative Law: The study and analysis of the different municipal law systems. a.
Legal “ families ”: 1) Romano-Germanic Civil Law. 2) Anglo-American Common Law. 3) Islamic Law. b%(2). The contemporary legal systems of the world are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these.
However, the legal system of each country is shaped by its unique history and so incorporates individual variations. number of official languages, and the need to include a variety of types of Ombudsman institutions. For the interviews in each of the eight sample countries, 29 research questions across the following 10 themes relating to the Ombudsman institution were used: 1.