COMPARATIVE LAW

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COMPARATIVE LAW Lecturers Do Thi Anh Hong Comparative Law Institute Hanoi Law University Sep 2018 COURSE DISCRIPTION IN BRIEF On the Comparative Law (CL) Name of this legal science branch: Among different countries: not unanimous (e.g.: in French, droit comparé = compared law; in German, Rechtsvergleichung = comparision of law) Within a country (US): not unanimous either E.g.: Legal scholars: Comparative law; Comparative legal traditions…; Legal linguists: Comparative Jurisprudence  Which name should be used? COMPARATIVE LAW I The terms & concepts used in CL  Terms & Concepts: vary from country to country  Eg.: + Different Terms: “legislature” (Eg.: US v UK) + Different Concept: “high court” (Eg.: Australia v UK) Legal Jargon: might differ from those used & understood in even other law subjects: Eg: - Legal system; - Civil Law; - Common Law CL as a branch of legal science - In XIX, beginning of CL was taken up with discussions attempting: + to define its aims, nature, + to establish its place among the sciences, + to characterize its methods, possible applications & general usefulness - CL has developed enormously since beginning of XX  1st International Congress for CL held (in Paris, 1900)  Views expressed here led to productive research in CL  Till 1970s, most comparatists were inclined to doubt the existence of the science of CL (merely a variety of study methods of jurisprudence) II ON THE COMPARATIVE LAW SUBJECT CL as an academic discipline in the LLB curriculum - In a number of countries around the world: + 1st half of the XX, CL still occupied a modest position in academic curricula (France, Germany, UK, US ):  CL: a selective subject + Nowadays (international integration process…)  CL: mandatory subject - In Vietnam: early 21st century (27th intake, HLU) CL Course Syllabus Two main parts: General Consideration Part: Fundamentals of CL and CL subject (concept/features/objects/method ) Specific Part: Fundamentals of Legal Families / Legal Systems Note: Disputed viewpoints on the CL subject’s specific part:  can be classified into groups of subject: Group 1: Structural Research Subj.: relationship b/t legal families, legal systems; b/t internal components of legal systems Group 2: Law Branch Research Subj.: comparing law branches of different countries (e.g.: ….) CL Course’s overall (p4-5 Course Outline) objectives - Cognition (deep discipline knowledge; legal, cultural, historical, geographical… knowledges) - Skills (comparing, collecting inf., analyzing, synthesizing…) - Attitude (self-improving of perception of foreign legal systems/law; more objective in assessment of domestic law…) - Other objectives: (p.5) CL subject’s achievement & future - In the past: CL  a res method used in legal science - Nowadays: CL  a branch of legal science, a law discipline in LLB curriculum - Future: increasingly important (a trend: CL subject & many specialized CL subjects in law school curricula) Learning Resources - See Course Outline, 2017 (p.12-15); - Note: + Poor in VN but Rich in foreign languages materials + Mandatory & Additional materials Micheal Bogdan, “Comparative Law”, Kluwer / Norstedts Juridik / Tano, 1994; (*) M.A Glendon, M.W Gordon, P.G Carozza, “Comparative Legal Traditions in a Nutshell”, 2nd Ed, West Group, 1999; (*) K Zweigert & H Kotz, “Introduction to Comparative Law”, 3rd Ed, Oxford University Press, 1998; R David & J.C Brierley, “Major Legal System in the World Today”, 3rd Ed, 1985 (reprinted 1996) P de Cruz, ”Comparative Law in a Changing World”, Cavendish Publishing Ltd, 1999 III COLLECTING INFORMATION FOR SELF-STUDY PURPOSE - From books, journal articles: Vietnamese vs Foreign languages - From Website: + westlaw.com; lexis.com; heinonline.org + … gov…; …edu…; …aca… (3) Swedish author: Michael Bogdan CL encompasses: “the comparing of different legal system with purpose of ascertaining their similarities & differences; working with the similarities & differences that have been ascertained, for instance explaining their origin, evaluating of the solutions utilized in the different legal systems, grouping of legal systems into families of law, or searching for the common core of the legal system; & the treatment of the methodological problems which arise in connection with these tasks, including methodological problems connected to the study of foreign law.” (p.18)  Good…: (full image of CL; concrete objects, methods, aims)  Not so good : (too long ) Note: M Bogdan: - Comparing law branches/institutes/rules of countries  CL = comparative method - Comparing abstract legal issues  CL = independent legal science c Features of CL (1) Not a law branch, nor a system of legal rules )2) Used to compare different legal systems Note: compare between legal acts, rules of the same legal system, enacted by different ruling powers, in different historical stages  not CL (3) Study of CL ≠ study of foreign law (4) CL: branch of legal science, not simply a research method (5) CL’s research scope seems unlimited: + Cannot be treated in an exhaustive manner + Can hardly imagine all conceivable bilateral & multilateral comparisons b/t all combination of existing legal systems  NOTE: Should limit research scope to particular legal questions/countries CL’s research objects a What does CL study? Relation b/t legal systems (LS), their components; relation b/t groups of LS & reasons for their similarities & differences  concepts to be clarified: - LS: (1) systematic collection of legal rules/principles (≠ morality, politics, physics ) (2) independent system of government (recognized ) (3) legal institutions operating within a geographic area (4) an operating set of legal institutions, procedures & rules - Legal family (LF): group of LSs having similarities b/c of having same deeply historical root; & same legal roles in society and in human ideology  LF ≠ LS  E.g.: LFs - Legal tradition (LT): set of historical conditioned attitudes to the role of law in a particular society, its characteristic mode of legal thought & its legal sources & basic ideology Note: How to use terms: LS, LF, LT b CL’s research scope (1) National LS: relation b/t 2/more national LSs: + legal rules, institutions, legal thinking mode…; + mechanism of law application; + legal profession; + legal education LF: relation b/t 2/more LFs  limit scope of research (3) International law : (2) + when comparing b/t national & international law + a regular research subject in international integration process c Levels of comparison: Macro & Micro comparison - What are they? + Macro C (large Re object): b/t LSs; b/t LFs  E.g… Note: bilateral & multilateral comparison # C/p b/t legal systems  Bilateral (Eg) # C/p b/t more than legal systems  Multilateral (Eg) + Micro C (small Re object): b/t legal rules; legal institutes  E.g.? - Relation b/t the levels of comparison CL’s research methods a Methods Which methods? Differentiate b/t comparative method (CMe) & CL: CL + Point out similarities & differences + Analyze, explain, comment + Concrete conclusion CMe + Point out similarities & differences b Steps in comparison of law - How many approaches to accomplish a CL research project? - Six steps: + Pose a question/hypothesis + Choice of law + Collecting reference materials + Building up system of concepts + Writing a report on research object + Evaluation of research findings (1) Posing question/hypothesis Result from: (a) Dissatisfaction (eg.)  foreign law must be different (b) Disinterested study (eg.)  how does foreign law look like  Enter first step - (2) Choice of laws to compare - What should be compared? + not unique + not incomparable + same function - Which country’s law to be chosen? + same level of development + more developed + similar cultural, historical development…? (3) Collecting reference materials - Why collect? - How to collect? + General vs Specific research; + Ancient vs Modern legal regime (4) Building up system of concepts - Why? - How? (5) Writing a report on research object - Why? (to grasp object of comparison) - Requirements (objectively, independently)? - Contents: + Description + Differentiation + Explanation (6) Critical evaluation of research findings - Foreign experience good/bad? - Should learn/not learn from foreign experience? - How to adopt foreign experience (import in total/in part with alteration)? Note: While using CL’s methods - Up-to-date reference materials (Re.Ma.); - Exactitude of Refferrence Materials: + study of primary/secondary reference materials; + study of primary Re.Ma In original language/orthodox translation version; - Right understanding of legal terms, concepts employed in individual legal system - Being aware of factors that result in simil.& diff.b/t LS (economic, political system; ideology; religion; history; geography…) SELF-STUDY II Historical development of CL (Zeigert, p.48-62) III Theoritical and empirical significance of CL (M.Bogdan: p.25-38) IV Grouping of legal systems (M.Bogdan: p 82-91) V Comparative Law as an academic Discipline ... Rechtsvergleichung = comparision of law) Within a country (US): not unanimous either E.g.: Legal scholars: Comparative law; Comparative legal traditions…; Legal linguists: Comparative Jurisprudence ... “Introduction to Comparative Law , 3rd Ed, Oxford University Press, 1998; R David & J.C Brierley, “Major Legal System in the World Today”, 3rd Ed, 1985 (reprinted 1996) P de Cruz, Comparative Law in a... Systems (M Bogdan: p 82-91) V Comparative Law as an Academic Discipline  Lecturing: Part I; Self-study: Parts: II-V I General considerations What is Comparative Law (CL)? a The term “CL”: no
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