The Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke PDF
Preview The Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke
THE METHOD AND CULTURE OF COMPARATIVE LAW Awareness of the need to deepen the method and methodology of legal research is only recent. The same is true for comparative law, by nature a more adven- turous branch of legal research, which is often something researchers simply do whenever they look at foreign legal systems to answer one or more of a range of questions about law, whether these questions are doctrinal, economic, sociological, etc. Given the diversity of comparative research projects, the pre- cise contours of the methods employed, or the epistemological issues raised by them, are to a great extent a function of the nature of the research questions asked. As a result, the search for a unique, one-size-fi ts-all comparative law methodology is unlikely to be fruitful. That, however, does not make refl ec- tion on the method and culture of comparative law meaningless. Mark Van Hoecke has been interested in many topics throughout his career, but legal theory, comparative law and methodology of law stand out. Building upon his work, this book brings together a group of leading authors working at the crossroads of these themes: the method and culture of comparative law. With contributions by: Maurice Adams, John Bell, Joxerramon Bengoetxea, Roger Brownsword, Seán Patrick Donlan, Rob van Gestel and Hans Micklitz, Patrick Glenn, Jaap Hage, Dirk Heirbaut, Jaakko Husa, Souichirou Kozuka and Luke Nottage, Martin Löhnig, Susan Millns, Toon Moonen, Francois Ost, Heikki Pihlajamäki, Geoff rey Samuel, Mathias Siems, Jørn Øyrehagen Sunde, Catherine Valcke and Matthew Grellette, Alain Wijff els The Method and Culture of Comparative Law Essays in Honour of Mark Van Hoecke Edited by Maurice Adams and Dirk Heirbaut OXFORD AND PORTLAND, OREGON 2014 Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © The editors and contributors severally 2014 The editors and contributors have asserted their right under the Copy- right, Designs and Patents Act 1988, to be identifi ed as the authors of this work. Hart Publishing is an imprint of Bloomsbury Publishing plc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate repro- graphic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84946-623-3 ISBN (ePDF): 978-1-78225-492-8 Preface Awareness of the need to deepen the method and methodology of legal research is only recent. The same is true for comparative law—by nature a more adven- turous branch of legal research—which is often something researchers simply do whenever they look at foreign legal systems to answer one or more of a range of questions about law, whether these questions are doctrinal, economic, sociological, etc. Given the diversity of comparative research projects, the pre- cise contours of the methods employed, or the epistemological issues raised by them, are to a great extent a function of the nature of the research questions asked. As a result, the search for a unique, one-size-fi ts-all comparative law methodology is unlikely to be fruitful. That, however, does not make refl ec- tion on the method and culture of comparative law meaningless. Mark Van Hoecke has been interested in many topics throughout his career, but legal theory, comparative law and methodology of law stand out. Building upon his work, this book brings together a group of leading authors working at the crossroads of these themes: the methodology and culture of comparative law. We thank Richard Hart, the ‘house publisher’ of many a book of Mark Van Hoecke, who has been so kind as to also publish this volume. Maurice Adams, Tilburg Dirk Heirbaut, Ghent January 2014 v Contents Preface v About the Authors ix Table of Cases xi Table of Legislation xiii Table of Conventions xvii 1. Prolegomena to the Method and Culture of Comparative Law 1 Maurice Adams and Dirk Heirbaut 2. What is Legal Epistemology? 23 Geoffrey Samuel 3. Comparative Law as Method and the Method of Comparative Law 37 Jaap Hage 4. Research Designs of Comparative Law—Methodology or Heuristics? 53 Jaakko Husa 5. Law as Translation 69 François Ost 6. Controlled Comparison and Language of Description 87 Maurice Adams 7. Three Functions of Function in Comparative Legal Studies 99 Catherine Valcke and Mathew Grellette 8. Comparative Law and Legal History: A Few Words about Comparative Legal History 113 Martin Löhnig 9. Comparative Contexts in Legal History: Are We All Comparatists Now? 121 Heikki Pihlajamäki 10. The Curious Case of Overfi tting Legal Transplants 133 Mathias M Siems 11. ‘Ius commune’, Comparative Law and Public Governance 147 Alain Wijffels vii viii 12. Things Being Various: Normativity, Legality, State Legality 161 Seán Patrick Donlan 13. Against Method? 177 H Patrick Glenn 14. Comparatively Speaking: ‘Law in its Regulatory Environment’ 189 Roger Brownsword 15. The Importance of Institutions 207 John Bell 16. Live and Let Die: An Essay Concerning Legal-Cultural Understanding 221 Jørn Øyrehagen Sunde 17. Policy and Politics in Contract Law Reform in Japan 235 Souichirou Kozuka and Luke Nottage 18. The Eurocrises and What Socio-legal Studies Could Do about Them, or: Comparing European Pluralisms from Legal Cultural Approaches 255 Joxerramon Bengoetxea 19. Comparing the Legitimacy of Constitutional Court Decision- Making: Deliberation as Method 269 Toon Moonen 20. Making the Case for European Comparative Legal Studies in Public Law 283 Susan Millns 21. Comparative Law and EU Legislation: Inspiration, Evaluation or Justifi cation? 301 Rob van Gestel and Hans-W Micklitz Author Index 319 Subject Index 321
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