Comparing legal styles

2019 ◽  
Vol 15 (03) ◽  
pp. 274-296
Author(s):  
Catherine Valcke
Keyword(s):  
Comparative Law ◽  
Legal Systems ◽  
Judicial Decisions ◽  
Legal Origins ◽  
French And English ◽  
English Law

AbstractThe question of legal ‘style’ is a central one in comparative law, as mainstream comparative law tends to downplay its importance. The kinds of comparative law scholarship that have attracted most attention in the last decades – the ‘harmonisation projects’ and the ‘legal origins’ literature (perhaps also the ‘legal formant’ literature) – indeed adopt a functionalistic approach to legal systems, whereby only the outcome of judicial decisions (and the factors causally feeding into them) matters – that is, their style does not. This narrow perspective has led to arguments in favour of harmonisation of law worldwide – the thesis according to which law everywhere does and should converge so as to facilitate transnational commerce and globalisation more generally. I propose to argue that legal style matters, as law is about much more than just resolving disputes. Specifically, it is also, and most importantly, a collective statement of identity. To illustrate, I plan on analysing some of the most striking stylistic differences between French and English law, and outline the different such statements emerging from them.

Foreign Relations Law

2019 ◽  
pp. 43-61
Author(s):  
Karen Knop
Keyword(s):  
United States ◽  
International Law ◽  
Foreign Relations ◽  
Comparative Law ◽  
The United States ◽  
Legal Systems ◽  
The U.S

The two starting points for this chapter are that fields of law are inventions, and that fields matter as analytical frames. All legal systems deal with foreign relations issues, but few have a field of “foreign relations law.” As the best-stocked cabinet of issues and ideas, U.S. foreign relations law would be likely to generate the field elsewhere in the process of comparison. But some scholars, particularly outside the United States, see the nationalist or sovereigntist strains of the U.S. field, and perhaps even just its use as a template, as demoting international law. The chapter begins by asking whether this apprehension can be alleviated by using international law or an existing comparative law field to inventory the foreign relations issues to be compared. Finding neither sufficient, it turns to the U.S. field as an initial frame and sketches three types of anxieties that the U.S. experience has raised or might raise for international law. The chapter concludes by suggesting how Campbell McLachlan’s allocative conception of foreign relations law might be adapted so as to turn such anxieties about international law into opportunities.

scholarly journals Some Issues in Treating the Changes of Circumstances under English Law

Pro Futuro ◽  
2020 ◽  
Vol 9 (3) ◽  
Author(s):  
Ágnes Juhász
Keyword(s):  
Legal Systems ◽  
National Legislation ◽  
Essential Change ◽  
Contractual Relationships ◽  
English Law

All legal systems have their own solution for the treatment of the essential change of circumstance subsequent to the conclusion of the contract. Some of them allow for the judicial amendment of the contract, if the conditions of the clausula rebus sic stantibus are fulfilled.  There are other states, where the possibility to modify the contract by judicial act in case of an essential change of circumstances subsequent to the contract conclusion has only recently been recognised by the national legislation. In the following, it is to be reviewed how and by what means and models English law treats those changes of circumstances which occur after the conclusion of the contract and significantly reshape the contractual relationships.

scholarly journals Elemér Balogh (1881-1955) The Forgotten Great Scholar of Roman Law and Comparative Law

2008 ◽  
Vol 3 (1) ◽  
Author(s):  
Gàbor Hamza
Keyword(s):  
Essential Role ◽  
Comparative Law ◽  
Roman Law ◽  
Legal Systems ◽  
Scientific Career ◽  
Great Scholar ◽  
International Academy

The oeuvre of Elemér Balogh, who played an essential role in founding the Académie Internationale de Droit Comparé (International Academy of Comparative Law), is almost unknown by generations of lawyers nowadays. In spite of the fact that regarding his scientific motivation and the greater part of his publications Professor Balogh (who had to emigrate from his homeland, Hungary) was a scholar of Roman law, the parts of his scientific career dealing with Roman law and other ancient legal systems are also unknown for many legal scholars. In the following, we will present the most important stages of his life and then his scientific oeuvre dealing with Roman law and comparative law. The mere fact that he was invited to attend the fourteenth centenary celebration of the promulgation of Justinian's Digest - where he delivered a lecture titled La procédure civile sous Justinien - is an evidence of his high reputation as a Romanist.

The Science of Comparative Law

1939 ◽  
Vol 7 (1) ◽  
pp. 94-110 ◽  
Author(s):  
M. Schmitthoff
Keyword(s):  
Comparative Method ◽  
Comparative Law ◽  
The Other ◽  
Definite Function ◽  
Special Study ◽  
Legal Systems ◽  
Legal Problem ◽  
Positive Law ◽  
Legal Science ◽  
The Law

In the course of the recent revival of the study of Comparative Law, repeated attempts have been made to define the nature and province of this branch of the law. Some writers maintain that Comparative Law represents a method of study rather than a department of legal science. They point to the fact that the technique of comparing different legal systems can be employed in almost every branch of the law and that Comparative Law, unlike the branches of positive law, does not fulfil a definite function in the life of society. In particular, writers on jurisprudence and history such as J. Bryce, Holland and Professor Jenks are inclined to subscribe to this view. Among the jurists who have made a special study of Comparative Law, Professor Gutteridge and Professor Kaden are strongly in favour of this view. Professor Gutteridge says: ‘The comparative method lends itself to the study of any branch of legal learning.’ According to Professor Kaden, it is the province of Comparative Law to disclose the points of agreement and difference in the solution which is provided by several legal systems for the same legal problem. The learned writer denies, however, that it is the function of Comparative Law to found a system of legal abstractions on the results of factual comparison. On the other hand, a number of students of Comparative Law consider their subject as a special branch of the science of law. Professor Saleilles, Professor Lambert and Professor Rabel support this view.

scholarly journals A COMPARATIVE EXPOSITION OF THE LAW OF HUSBAND AND WIFE IN TERMS OF ISLAMIC LAW, SOUTH AFRICAN LAW AND THE LAW OF ENGLAND AND WALES ‒ PART TWO

Obiter ◽  
2021 ◽  
Vol 42 (2) ◽  
Author(s):  
Razaana Denson
Keyword(s):  
South Africa ◽  
South African ◽  
Islamic Law ◽  
Legal Systems ◽  
England And Wales ◽  
English Law ◽  
The Law ◽  
Muslim Communities ◽  
Personal Law ◽  
Legal Consequences

The article discusses and compares the dissolution of a marriage as well as the legal consequences thereof in Islamic law, South African law and English law. This is done in order to demonstrate that despite similarities, there are vast differences between the three legal systems. This impacts on how Muslim personal law (MPL) can be recognised and regulated in South Africa and in England and Wales as constitutional democracies. South Africa, England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Internal pluralism also exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, as well as with South African and English law. Notwithstanding the accommodation of MPL in terms of South African and English law, the differences between these legal systems have resulted in decisions that, while providing relief to the lived realities of Muslims, are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims.

Covering Blood and Graves

2018 ◽  
pp. 213-237
Author(s):  
Nancy O. Gallman ◽  
Alan Taylor
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
Spanish Law ◽  
Indigenous Groups ◽  
Spanish Florida ◽  
The Face ◽  
English Law ◽  
Corporate Autonomy

Gallman and Taylor take up murder at the boundary zones between the Iroquois and British settlers and between Spanish Florida and the Lower Creeks and Seminoles. Despite contrasts between the legal systems of the empires—civil law and inquisitorial procedure on the Spanish side, common law and trial by jury on the British side—indigenous groups came to similar conclusions regarding murder. Specifically, Native leaders rejected execution of the guilty, as proposed by English law, or other punishments, from execution to imprisonment to exile, under Spanish law. They opted instead to resolve matters by “covering the grave,” or giving gifts by the culpable party to the aggrieved party in lieu of revenge. This practice was less likely to spark a blood feud and enabled indigenous groups to preserve corporate autonomy in the face of pressures to conform to imperial norms. Though reluctantly, imperial officials often went along with this in order to keep the peace.

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