Comparative Private law notes pdf.pdf

✓ Introduction to Comparative Law The European Union plans to harmonize the rules (means harmonization of laws in the EU) concerning contracts for the supply of digital content and digital services. EU Parliament + Council of Ministers = works...

✓ Introduction to Comparative Law The European Union plans to harmonize the rules (means harmonization of laws in the EU) concerning contracts for the supply of digital content and digital services. EU Parliament + Council of Ministers = works on new legislations What steps will the Commission Take in drafting its proposal? 1. Look at the laws in each MS 2. What are the dangers? What are the benefits? 3. They could tend to other countries that have already passed said legislation Case of lesbian couple: one mother being the legal one (birthing) the other needs to adopt: ▪ Here’s what the NGO could argue: No interests in the generic facts in “heterological relationships” – it is automatically assumed that the man in the picture is the father ✓ Purpose of Comparative Law ▪ Knowledge & understanding (learning effect) ▪ Finding new ways to solve cases (comparison effect) ▪ Unification & harmonization of the laws including EU-laws – possibility to access what already exists ▪ Active legal sphere for who are interested in different law choices e.g comparing Malaysia which laws apply? ▪ Comparative law allows to look at the best possible solutions for the client ✓ Methodology: Comparative Private Law – Comparative Public Law (constitutional law, human rights) – Comparative Criminal Law (contract law, sentencing e.g duration) Written down laws but not implemented – no familiarity in legal system yet ✓ Method of Legal Comparison o Theoretical underpinnings Legal Functionalism Universalism analyses the law based on the assuming that certain legal  functions that law and legal rules concepts are common to all serve for society humans focuses on the law ‘s operative role humanist idea of one global law in society comparison to search for perceives law as a means to an end commonalities often works with case scenarios presumption of similarity offers a link for comparison (praesumptio similitudinis) (tertium comparationis) proximity to exercises of legal unification o starting point: social problem observation of a real problem observation of a legal rule o descriptive sections presenting how different jurisdictions deal with the problem o final section: summary assessment critical evaluation of the legal systems Mapping Legal Systems Legal Familes Real Types - looking at Ideal Types - working with conceptions of ideal actual legal systems types of legal systems ✓ Classification of Legal Families Disregard of hybrids – misrepresenting the nature of the following: 1. Entirely Mixed Legal Systems e.g Scotland, South Africa - a blend of different legal traditions - Scotland combines elements of both common law (like in England) and civil law (like in many European countries) while South Africa mixes Roman-Dutch law with common law principles. 2. Spatially Divided Legal Systems: Example: Canada and Quebec - different regions have their own legal systems.  - In Canada the province of Quebec follows civil law, while the rest of Canada follows common law. 3. Horizontally Divided Legal Systems: - systems where different types of law exist at the same level and interact. - For instance, a country might have separate legal frameworks for civil law, criminal law, and commercial law, all operating side by side. 4. Vertically Divided Legal Systems According to Areas of Law: - This division happens when laws are categorized and applied in different layers based on their area. - in the U.S., there is federal law (national level) and state law (state level). They can cover different aspects and sometimes overlap or conflict. 5. Parallel Legal Systems Including Transnational Law: - occurs when multiple legal systems operate simultaneously within the same area, and individuals might be subject to more than one system. - Transnational law, for instance, includes international treaties and agreements that apply across national borders, affecting how national laws are implemented and enforced. ✓ Drawbacks | further critique o Western law’s legal positivist orientation o concentration on private law o classifications petrify and stop evolving Socio-Legal Comparison ✓ Legal Culture o attitudes towards the law o compliance with the law o legal tradition o legal ideology (philosophical and theoretical background) o legal style of reasoning o role of custom ✓ Benefits of Socio-Legal Comparison o deeper level of analysis/more comprehensive approach  o taking the function of law in society into account | pursuing the o functionalist idea ✓ Challenges o culture as a black box o departing from a strictly legal comparison | sufficient expertise? Numerical Comparative Law ✓ Measuring similarities and differences 1. formal features of legal systems turning to objective data e.g length of trials, litigation costs, number of differing opinions searching for commonalities in legal reasoning e.g use of proportionality analysis 2. methodological commonalities in academic approaches 3. substance of legal rules tracing the evolution of law in different countries over time by measuring overlap and divergence setting up indices to measure the law e.g on a scale of 1 to 10, which legal system has the most comprehensive rules on environmental impact assessment ✓ Measuring the quality of legal rules and institutions challenge: measuring quality as a normative exercise 1. measuring legal rules o assessing the law of different legal systems with regard to certain criteria and rating them o methodology a. working with case hypotheticals and translating the answers into code b. using indices that represent the law in a legal system as adequately as possible Legal Transplants o legislator of one country adopts a rule that largely follows the rule of another country o different ways of transplantation precise copying adoption of a functional equivalent of a foreign rule transferral of general ideas and “legal cultures” Postcolonial Comparative Law I. II. III. External critique reflecting on the colonial and neo-colonial elements in comparative law Where can colonial or neo-colonial influences be seen? looking at legal transplants from the Global South to the Global North („provincialization “) still analysing within the European liberal paradigm Decolonial Comparative Law ✓ Decolonial Theory underlying ideas | workplan o replacing universality with pluriversity | showing legal options o looking more closely at non-state law o employing epistemologies of the Global South o engaging in comparative legal history prior to modernity o relying more heavily on the concept of “folk law” unwritten law gaining its legitimacy through social acceptance