Comparative Law Exam Guide

• The exam consists of two questions: the first has 10 multiple-choice sub-questions, and the second is an essay question.
• For clarifications, contact Mais Qandeel at 073 077 3596.
• This is a closed-book exam; course materials like lecture slides, reading material, notes, and seminar materials are not allowed.
• Answers for question 2 do not need citations.
• Submit answers on WiseFlow before the closing time to avoid technical issues.
• For technical assistance, contact on-site exam investigators or email digitaltenta@oru.se.
• Write answers in English, focusing on academic integrity.
• Ten to nine correct answers result in AB.
• Eight to seven correct answers result in BA.
• Six to five correct answers result in B.
• Four or fewer correct answers result in U.

Ugo Mattei's Taxonomy

• Homogeneity of population to preserve social structure is a characteristic of legal systems with a hegemonic pattern of traditional law.

Functions of Comparative Law

• Comparative law is NOT for eliminating differences between global legal systems.
• It is a teaching instrument for legal education.
• It facilitates a better understanding of legal data.
• It aids lawmakers in reforming legal rules.

Hierarchy of International Treaties

• The position of international treaties depends on the legal system's approach to international law (dualism or monism).

Unification and Harmonization of Law

• Harmonization is similar, but not identical in process, to convergence.

Classification of Legal Systems

• Criteria include the system of sources of law and the legal actors operating within that system.
• There is no consensus among comparatists regarding the criteria for classification.

Unification of France and Germany

• Both France and territories of the Holy Roman Empire were divided into territories where, in some parts, a Roman legal system was still in action and others, where a Germanic legal system based on custom was the foundation of society.

Classification of Nordic Legal Systems

• Nordic legal systems are mostly civil law systems but are often considered a separate legal family in major classifications due to civil law influence and unique development.

Horizontal Comparative International Law

• It compares domestic laws to position international law and its interpretations.

Court Decisions in Civil Law Systems

• Court decisions in civil law systems are descriptive and provide reasoning.
• Judges have limited ability to contribute to legal development, acting as public servants who only apply the law.

Decisions by the French Tribunal de Cassation

• If the French Tribunal de Cassation quashed a judgment, the case was returned to the court of appeal for reconsideration and a new decision.

Functionalism in Comparative Law

• Functionalism is a traditional approach in comparative law linked to universalism.

Key Aspects of Functionalism

• It examines how systems, doctrines, or institutions fulfill functions and how legal rules operate in the real world.
• Socio-economic problems should initiate comparative analysis (tertium comparationis), as seen in pre-contractual liability and personality rights examples.
• Socio-legal method addresses gaps in traditional approaches.
• The main advantage is providing necessary links between different rules legal systems employ.
• The shared purpose of rules is the common denominator (tertium comparationis), enabling legal system comparability.
• It prefers a less positivist approach, which means legal systems are different due to state enactment.
• It counters the assumption that foreign legal systems must have the same rules as one's own country, rather it has different solutions to one problem.

Limitations of Functionalism

• Comparability makes it less suitable for comparisons between very different legal cultures.
• Comparison must be between "the likes."
• It focuses on similarities, making it more appropriate for certain areas of law like contract and tort laws because they are similar across countries.

Criticism of Functionalism

• It focuses too much on similarities.
• It inaccurately assumes that all societies face the same social problems.
• The idea that law serves a function is challenged, failing to consider historical development, cultural preconditions, and legal transplants.