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Lecture 2) Comparative legal research - Coggle Diagram
Lecture 2) Comparative legal research
Structuring comparative legal research
4) Producing a schema of comparability.
5) Identifying the legal rules.
3) Comparability and choice of systems.
2) Formulating research theme.
6) Describing the legal rules to compare.
1) Identifying research theme.
7) Comparing
Tertium comparationis
The common quality or characteristic shared by two or more things being compared.
Serves as a basis of comparison that leads the researcher to draw similarities between them.
It guides the identification of relevant similarities and differences across different systems.
The case of 'Regulating the End of Life'
Euthanesia and law.
They didn't investigate euthenesia, but varieties of eind-of-life medical behavior.
They wanted to investigate euthanasia, but this was only regulated in three countries (Benelux).
They made a functional scheme with the 'Terbium comparationis' on top (the third categorie > Varieties of end-of-life medical behavior.
Case and country selection
Subjective factors
: based on personal capacities such as language proficiency, available time and resources, and prior experience.
Marieke Oderkerk
Has outlined certain guidelines researchers should consider defining the exact research aim for the comparative study and the associated case and country selection. These guidelines also help justifying the choices made.
If the aim is to formulate new legislation, it is essential to include systems that offer valuable insights, particularly within similar socio-economic structures and development contexts.
If the aim is to develop legislation on a supranational level, researchers should focus on systems that either require harmonization or unification, or systems that can provide valuable lessons for the process.
If the aim is reflective in nature, researchers should aim for minimal limitations and explore both similarities and differences among legal systems.
Objective factors
: include the research aim and specific inquiries. Researchers must consider what they aim to achieve and the information they seek from their chosen cases and countries.
These factors impact researchers' ability to effectively engage with the selected cases and countries.
Gluckman's pragmatic approach and Bohannan's critic
What happened?
Gluckman
: dived into the process of dispute resolution in the Barotse tribe and used a conceptual framework based on English law and Roman-Dutch Law. He cam to consideration that very many of the Barotse legal concepts can, without distortion after careful and perhaps lengthy description and discussion, be given English equivalents.
Bohannan
: critized this approach of using terminologie from English law and Roman-Dutch Law to describe African tribal legal systems. This approach was not suitable because it forced foreign legal concepts onto the unique legal customs of African tribes
Bohannen
: African legal systems should be described using their own native terms and categories to preserve their distinctiveness.You can't just describe another system in the terms of another legal system. That's misleading. You're going to see another legal system in the light of your own legal system.This would lead to tunnel vision.
Gluckman
: acknowledges Bohannen's critique. He believes that very many of Barotse's legal concepts can, after careful and possibly lengthy description and discussion, be given an English equivalent without distortion
Bohannen
: It simulates understanding through the use of a familiar word. Such a simulation leads – almost inevitably, I think – to the assumption that everything denoted by the same word is similar – and this is a difficulty that is almost impossible to correct.
Gluckman
: that is not so. You have to do something.
You should be aware of the potentially misleading terminology. Avoid tunnelvision as much as possible. Also if you take Gluckman's pragmatic approach.
Zweigert & Kötz: look mainly at similarities. Professor: also look at the differences. Compare with binoculars. You turn the lens to focus and then you see differences. Process of comparative law is focus change of proximity and distance. This is how you map the similarities and differences. It is not a lonely planet: also look at the differences.