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PAERT 1 : DEFINITION ATTEMPT : WHAT IS COMPARATIVE LAW ? - Coggle Diagram
PAERT 1 : DEFINITION ATTEMPT : WHAT IS COMPARATIVE LAW ?
WHAT IS COMPRATIVE LAW ?
= To dientify similarities and differences between two legal systems.
Different factors
Doesn't encompass all legal comparisons :
Legal factor (the rule is explained by the legal system as a whole) >< Comparative law (beyond the legal analysis and we mobilize other disciplines : social sciences, natural sciences).
Mainly comparison of national laws
But also of internationa/local laws :
the primary source is national laws but also international laws
3 mains topics
Comparative law as a method :
you apply the law, as you do math, but you don't rediscuss the method, you just apply the rules, you don't overthink about it
Comparison of groups of legal systems :
the classification of legal orders, in different group that are charactherized by common features.
Comparison of a specific area of the law :
many legal scholars
WHY COMPARE LAWS ? IN WHICH SITUATIONS ?
As a scholar :
law is a social science where lawyers compare societies and in this perspective we can mobilise other social sciences
As a policymaker :
comparative law is useful for policymakers at national level ans also international level :
On national level : CL is more a source of inspiration
On international level : CL is more used to evaluate the efficiency of national treaties.
As a lawyer :
very specific cases, when the interpretation of a legal rule isn't clear, you sometimes gotta use foreign interpretation --> to be very CAUTIOUS with those foreign interpretations
As a judge :
its concens more supreme jurisdictions than lower jurisdisctions --> CL is very important because sometimes national jadges have to check, understand and apply foreign laws (Art. 15 of the international private code)
THE METHODS IN COMPARATIVE LAW
Preliminary remarks
The fundamental choice of the compared systems : how many countries should i choose ?
3 because : The main risk when comparing only 2 systems is that teh comparison is binary, the risk with that is to exaggerate teh differences >< If you had a third county, it's more complex but this risk of overemphasis is reduced
The delicate question of translation :
the advantage is to make a research more accessible and a better reading >< the translation may not be a wise idea because it can creat confusion between two concepts that are, in law, very different.
-->When you have some concepts, words which are very specifics to a legal system you will most of the time use the term in its original language or you will creat a neologism 'a new word) when the language is different compare to yours
--> NOTE : sometimes transaltion is not possible and in this case teh best way is to use in its original language
THE QUESTION OF TRANSLATION
(when you have a foreign concept = you have 3 main posibilities)
Translate it :
the concept of translation allows us to better understand the listener, the audithor and this is more obvious when we translate into our language BUT the risk is to lose part of original meaning of the concept with the creation of a risk of confusion
Keep the word in the original language :
sometimes, you don't have an exact translation, or you may lose the concept
Create a neologism :
it's a new word when we have teh same concept, we have to list the term in its original language and therefore create a new word
A (TOO) SIMPLISTIC METHOD : THE DESCRIPTIVE METHOD
In this method, you gather the information (data) on a legal concept or a specific branch of the law and you make a comparison (to identify likenesses and differences). You can make a comparison between branches of the law or, most of the time, on a smaller part of a branch of lawBUT you start from a legal point vu.
THE MAIN TRADITIONAL METHOD : THE FUNCTIONALISM
When a comparatist, you use teh functional method, yiu not only study teh law as a legal institution in itself, but you also study the role that the law plays ans the objectives that the legal rules pursue. You don't compare directly certain branches of the law, or certain legal institutions, but you study the legal solution brought to a social problem. You study legal system as a concrete response to a problem. The starting point of this method is different than the one of the desciptive method. Here you start with a social issue rather than a legal issue. You don't directly ask a legal question but you start from a concrete observation
THE COMMON CORE PROJECT : A SPECIFIC TECHNIQUE
Hard with the external and internal approach
Internal approach :
reflection within the legal system studied = dogmatique legal
External approach :
reflection on the legal system studied = approach contextual = multi disciplinary approach
An external and internal judgment of a legal system
Internal :
we must to check whether the rule is good in relation to higher rules like the Constitution, is the norm valid in relation to its legal system ?
External :
you have to explore other disciplines to know what the law is