Vous êtes sur la page 1sur 65

.

Wednesday, 22 June 2011

Wednesday, 22 June 2011

an introduction
Wednesday, 22 June 2011

an introduction

Wednesday, 22 June 2011

Peter de Cruz, "Techniques of comparative law", in Comparative law in a changing world (London, 2007), pp. 219-249.

Wednesday, 22 June 2011

quest for methodology methods


major pitfalls & perils
Wednesday, 22 June 2011

major pitfalls & perils

linguistic & cultural


differences

terminological problems

objects of study
Wednesday, 22 June 2011

comparability legal pattern bias exclusion &


ignorance

linguistic & terminological problems

Wednesday, 22 June 2011

cultural differences between legal systems

Wednesday, 22 June 2011

arbitrary selection of objects of study

Wednesday, 22 June 2011

comparability in comparison

Wednesday, 22 June 2011

viability of theory of a common legal pattern

Wednesday, 22 June 2011

imposition of ones own legal conceptions

Wednesday, 22 June 2011

the four law jobs

conict resolution adaptation & social change norm enforcement


social control
Wednesday, 22 June 2011

omission of extra-legal factors

Wednesday, 22 June 2011

general character
of comparative law

the quest for methodology


topics

suitability of comparative test of


functionality method requirements

subject matter macro v micro

Wednesday, 22 June 2011

clarifying the general character of comparative law

Wednesday, 22 June 2011

the subject matter of the comparison

Wednesday, 22 June 2011

macro-comparison & micro-comparison

Wednesday, 22 June 2011

comparative method: requirements

Wednesday, 22 June 2011

the test of functionality

Wednesday, 22 June 2011

comparative legal methods


Wednesday, 22 June 2011

Kambas three-stage approach a blueprint

Kambas three-stage-approach

Wednesday, 22 June 2011

the identication phase the explanatory phase


the descriptive phase
Wednesday, 22 June 2011

the descriptive phase


norms concepts institutions socio-economic problems legal problems legal solutions
Wednesday, 22 June 2011

the identication phase

similarities
Wednesday, 22 June 2011

differences

the explanatory phase

resemblances dissimilarities
Wednesday, 22 June 2011

no one single method applicable

Wednesday, 22 June 2011

a blueprint

Wednesday, 22 June 2011

1. Identify the problem. 2. Identify the foreign jurisdiction & its parent legal family. 3. Decide the primary sources of law & materials. 4. Gather & assemble the material relevant to the jurisdiction being examined.

5. Organise the material. 6. Provisinally map out the possible answers to the problem. 7. Critically analyse the legal principles. 8. Set out conclusions within the comparative framework with caveats & with critical commentary.

Wednesday, 22 June 2011

Wednesday, 22 June 2011

Wednesday, 22 June 2011

comparative law in courts comparative law & legislator comparativism & the verdict case law in non-common law jurisdictions styles of judicial decision overriding general principles
Wednesday, 22 June 2011

comparative law in courts

Wednesday, 22 June 2011

a tool of law reform


Wednesday, 22 June 2011

a tool of interpretation

sovereignty v uniformity of outcome

Wednesday, 22 June 2011

comparison illuminate our understanding

Wednesday, 22 June 2011

The discipline of comparative does not aim at a poll of solutions adopted in different countries. It has the different and inestimable value of sharpening our focus on the weight of competing consideration.
Wednesday, 22 June 2011

functional use of foreign law


a tool of interpretation to look for solutions to promote a change to ll in a gap to discard an unsatisfactory solution
Wednesday, 22 June 2011

the three phases


Wednesday, 22 June 2011

discovering: what is found understanding: what is to be used applying: how far

certain practical considerations


language skills national insularity or pride: rule of proof;
common law as a whole

pressures: time & volume of work budget


Wednesday, 22 June 2011

[A]ll judges cannot be expected to be comparatists, but it is their duty to consult those who are in a position to supply the information needed ...
Wednesday, 22 June 2011

[It] cannot be right to attempt to construe acquiesced by reference only to its possible meaning at common law or equity.
Wednesday, 22 June 2011

comparative law & legislator

Wednesday, 22 June 2011

a tool of law reform


Wednesday, 22 June 2011

a tool of interpretation

justication of comparativism & the verdict

Wednesday, 22 June 2011

the authority of case law in non-common law jurisdictions

Wednesday, 22 June 2011

interpreters v law makers

Wednesday, 22 June 2011

lower courts v superior courts

Wednesday, 22 June 2011

styles of judicial decision

Wednesday, 22 June 2011

French German Swedish American


English
Wednesday, 22 June 2011

the relevance of overriding general principles

Wednesday, 22 June 2011

bona des/good faith good morals and public order custom


aequitas
Wednesday, 22 June 2011

Wednesday, 22 June 2011

Wednesday, 22 June 2011

Administrative law? The subjects? Power allocation? The procedure? The instutions? The judicial control? Liability?
Wednesday, 22 June 2011

What is administrative law?

Wednesday, 22 June 2011

What are the subjects of administrative law?

Wednesday, 22 June 2011

the allocation of powers

Wednesday, 22 June 2011

administrative procedure

Wednesday, 22 June 2011

institutions providing legal redress

Wednesday, 22 June 2011

the judicial control of power

Wednesday, 22 June 2011

liability of the administration

Wednesday, 22 June 2011

conclusion

Wednesday, 22 June 2011

Wednesday, 22 June 2011