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Epistemology and Methodology of Comparative Law (European Academy of Legal Theory Series) PDF

408 Pages·2004·1.41 MB·English
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EPISTEMOLOGY AND METHODOLOGY OF COMPARATIVE LAW EUROPEAN ACADEMY OF LEGAL THEORY MONOGRAPH SERIES General Editors Professor Mark Van Hoecke Professor François Ost Professor Luc Wintgens Titles in this Series Moral Conflict and Legal Reasoning by Scott Veitch The Harmonisation of European Private Law edited by Mark Van Hoecke On Law and Legal Reasoning by Fernando Atria Law as Communication by Mark Van Hoecke Legisprudence edited by Luc Wintgens Epistemology and Methodology of Comparative Law Edited by Mark Van Hoecke Katholieke Universiteit Brussel OXFORD AND PORTLAND OREGON 2004 Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA © The Editor and Contributors Severally 2004 The Editor and Contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salters Boatyard, Folly Bridge, Abingdon Rd, Oxford, OX1 4LB Telephone: +44 (0)1865 245533 Fax: +44 (0) 1865 794882 email: [email protected] WEBSITE: http//:www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1-84113-439-2 (hardback) Typeset by Olympus Infotech Pvt, Chennai, India, in Sabon 10/12pt Printed and bound in Great Britain by MPG, Bodmin, Cornwall Foreword This volume contains mainly the plenary papers of the Conference on Epistemology and Methodology of Comparative Law, organised in Brussels on 24 till 26 October 2002. This Conference has been organised by the Katholieke Universiteit Brussel, in collaboration with the Vrije Universiteit Brussel and the European Academy of Legal Theory. We are grateful to both universities and to the Fund for Scientific Research, Flanders, for their generous finan- cial support. Whereas comparative law conferences generally focus on some fields or topics of positive law, the aim of the Brussels conference, of which the ple- nary papers are published in this volume, was of a more theoretical kind: reflecting on comparative law as a scholarly discipline, on its epistemology and its methodology. Some of the topics on which the papers and the discussion were focussing are: — which kind of ‘knowledge’ is, or could be, aimed at by comparative law? — the classification of legal systems into ‘legal families’ (is there an emerging ‘European legal family’, which is transcending, or at least overlapping, the traditional classification Common Law— Civil Law? Do we have to distinguish different classifications into ‘legal families’ according to the area of law?); — the relevant context for determining (the content of) the law, or the distinction of different levels on which comparative research may be carried out (e.g., a more technical ‘surface level’, a ‘deep level’ of the ideological background of law and legal practice, and an ‘intermediate level’ of other elements of legal culture, such as the socio-economic and historical background of law); — the identification and demarcation of a ‘legal system’, which is to be compared with another ‘legal system’ (this brings us to the opposition between ‘legal monism’ and ‘legal pluralism’, and the definition of the European legal orders, sub-State legal orders, along with what is left of traditional sovereign State legal systems); — the relationship between domestic law, international private law and international public law; vi Foreword — the desirability and possibility of developing a basic common legal language, with common legal principles and legal concepts (a common technical legal language, as it is currently developing within the European jurisdictions and other norm creating insti- tutions, and/or a legal meta-language, which would be developed and used within an emerging European legal doctrine). The scope of the approaches in this volume is rather wide. Some papers are methodological reflections of experienced comparatists, starting from their broad practice in comparative research. Other papers are of a more theo- retical nature and reflect mainly on the epistemologic question of (the acces- sibility of) knowledge of foreign legal systems and of law in general. They all have in common that they address more fundamental, scientific prob- lems of comparative research that are too often neglected in comparative scholarship. Mark Van Hoecke Brussels, February 2003 Contents List of Contributors ix 1. Legal Culture vLegal Tradition 1 Alan Watson 2. Legal Cultures and Legal Traditions 7 H Patrick Glenn 3. Legal Epistemology and Transformation of Legal Cultures 21 Marek Zirk-Sadowski 4. Epistemology and Comparative Law: Contributions from the Sciences and Social Sciences 35 Geoffrey Samuel 5. How to Make Comparable Things: Legal Engineering at the Service of Comparative Law 79 Juha Karhu (Previously Juha Pöyhönen) 6. Methodology and European Law—Can Methodology Change so as to Cope with the Multiplicity of Law? 91 Karl-Heinz Ladeur 7. Comparative Law of Obligations: Methodology and Epistemology 123 Christian von Bar 8. Codifying European Private Law 137 Walter van Gerven 9. Deep Level Comparative Law 165 Mark van Hoecke 10. NICE Dreams and Realities of European Private Law 197 Nikolas Roos 11. The Europeanisation of National Legal Systems: Some Consequences for Legal Thinking in the Civil Law Countries 229 Jan M Smits viii Contents 12. Comparative Law and the Internationalisation of Law in Europe 247 Mireille Delmas Marty 13. Public Law in Europe: Caught between the National, the Sub-National and the European? 259 John Bell 14. New Challenges in Public and Private International Legal Theory: Can Comparative Scholarship Help? 271 Horatia Muir Watt 15. Abridged or Forbidden Speech: How Can Speech be Regulated through Speech? 285 François Rigaux 16. Legisprudence and Comparative Law 299 Luc J Wintgens 17. Rawls’ Political Conception of Rights and Liberties: An Illiberal but Pragmatic Approach to the Problems of Harmonisation and Globalisation 317 Paul de Hert and Serge Gutwirth 18. Family Trees for Legal Systems: Towards a Contemporary Approach 359 Esin Örücü 19. A Common Legal Language in Europe? 377 Anne Lise Kjær List of Contributors Christian von Bar is Professor and Director of the Institute of Private International and Comparative Law of the Universität Osnabrück. He is also Bencher (Hons.) of Gray’s Inn (London), corresponding fellow of the British Academy, corresponding fellow of the Académie internationale de droit com- paré and doctor juris honoris causaof the Katholieke Universiteit Leuven. ([email protected]) John Bellis Professor of Law at the University of Cambridge. ([email protected]) Paul de Hertis senior-lecturer (uhd) at the Universiteit Leidenand Professor at the Vrije Universiteit Brussel. ([email protected]) Mireille Delmas-Martyis Professor at theCollège de France, Paris. ([email protected]) H. Patrick Glennis Peter M. Laing Professor of Law at the Faculty of Law & Institute of Comparative Law, McGill University, Montreal, and Visiting Fellow at All Souls College, Oxford University. ([email protected]) Serge Gutwirth is Professor of Law at the Vrije Universiteit Brusseland lec- turer at the Erasmus Universiteit Rotterdam. ([email protected]) Juha Karhu (Previously Juha Pöyhönen) is Professor at the University of Lapland, in Rovaniemi, Finland. Juha Pöyhönen changed his name in 2003. Anne Lise Kjaer is Postdoctoral research fellow at the Faculty of Law, University of Copenhagen. ([email protected]) Karl-Heinz Ladeuris Professor at the Universität Hamburg. ([email protected]) Horatia Muir Watt is professor at the Université de Paris I (Panthéon- Sorbonne). Also deputy director of the UMR (Unité Mixte de Recherches) de Droit comparé de Paris (Paris 1–CNRS). ([email protected]) x List of Contributors Esin Örücü is Professor of Comparative Law at the University of Glasgow and the Erasmus Universiteit Rotterdam. She is also an associate member of the International Academy of Comparative Law (Académie Internationale de Droit comparé). ([email protected]) François Rigaux is emeritus Professor of the Université Catholique de Louvain(Louvain-la-Neuve) and member of the Belgian Royal Academy. Nikolaas Roosis Professor Meta-Juridica at the Universiteit Maastricht. ([email protected]) Geoffrey Samuelis Professor of Law at the Kent Law School (University of Kent at Canterbury). ([email protected]) Jan M Smits is Professor of European Private Law at the Universiteit Maastricht. ([email protected]) Walter van Gerven is emeritus Professor of the Katholieke Universiteit Leuven and the Universiteit Maastricht. He teaches at the European Academy of Legal Theory and is visiting professor at King’s College, London, and at the Universiteit Gent. Formerly he has been Advocate General at the European Court of Justice (ECJ). ([email protected]) Mark Van Hoecke is Professor of Law and Jurisprudence and, as from October 2002, the rector of the Katholieke Universiteit Brussel. He is also co-director of the European Academy of Legal Theory. ([email protected]) Alan Watsonis Distinguished Research Professor & Ernest P. Rogers Chair of Law at the University of Georgia. ([email protected]) Luc J. Wintgens is Professor of Law and Jurisprudence at the Katholieke Universiteit Brusseland dean of the law faculty. ([email protected]) (cid:1) Marek Zirk-Sadowski is Professor of Law at the University of Lódz(Poland). ([email protected])

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Whereas many modern works on comparative law focus on various aspects of legal doctrine, the aim of this book is of a more theoretical kind - to reflect on comparative law as a scholarly discipline, in particular on its epistemology and methodology. Thus, among its contents, the reader will find: a
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