France

2013 ◽  
Author(s):  
Michal Bobek
Keyword(s):  
Legal System ◽  
Comparative Law ◽  
Theory And Practice ◽  
Legal Scholarship ◽  
French Theory

Assessing French theory and practice of the use of comparative arguments by courts, in particular by the three French highest courts, the Conseil constitutionnel, the Cour de cassation, and the Conseil d´Etat, the chapter suggests that in spite of not being visible on the surface, there is comparative exchange going on. For reasons peculiar to the legal and judicial tradition, such an exchange does, however, take on particular form. First, it is not openly displayed. Comparative reasoning in courts is primarily used as a tool of internal debates, not as an instrument for external justification. Secondly, because of the historical constitutional balance within the legal system, comparative law has traditionally been seen as a matter for the legislator and legal scholarship, not for the courts.

scholarly journals Universalismo y particularismo en el Tribunal Constitucional. Sobre su uso (y abuso) de los precedentes extranjeros

2018 ◽  
pp. 530
Author(s):  
Ángel Aday Jiménez Alemán
Keyword(s):  
Theoretical Analysis ◽  
Comparative Law ◽  
Constitutional Court ◽  
Legal Scholarship ◽  
Accepted Practice

El siguiente trabajo ofrece elementos con los que analizar una práctica pacíficamente aceptada de nuestro Tribunal Constitucional, escasamente aborda por la doctrina española, pero no por ello menos contradictoria: El uso de Derecho comparado, y, específicamente, de precedentes extranjeros. Se realiza un análisis sistemático tanto empírico como teórico de las resoluciones en las que ha sido utilizado como parte de los fundamentos jurídicos.This paper provides elements to analyse the peacefully accepted practice of using comparative law by the Spanish Constitutional Court. This paper is focus on the use of foreign precedents. It is a contradictory practice although still not explored by the Spanish legal scholarship. In this sense, this paper contributes with a systematic empirical and theoretical analysis of the Spanish Court’s decisions where foreign precedents are referenced at the legal groundings

Judicial Review in Mauritius and the Continuing Influence of English Law

1997 ◽  
Vol 46 (4) ◽  
pp. 787-811
Author(s):  
John W. Bridge
Keyword(s):  
Legal System ◽  
Judicial Review ◽  
Comparative Law ◽  
Public Law ◽  
Commercial Law ◽  
Legal Traditions ◽  
General Terms ◽  
British Colony ◽  
English Law ◽  
Code Civil

The law and legal system of Mauritius are an unusual hybrid and a remarkable instance of comparative law in action. As a consequence of its history, as an overseas possession of France from 1715 to 1810 and as a British colony from 1814 until it achieved independence within the Commonwealth in 1968, its law and legal system reflect the legal traditions of both its former colonial rulers. In general terms, Mauritian private law is based on the French Code Civil while public law and commercial law are based on English law: an example of what has recently been labelled a “bi-systemic legal system”. The Constitution, a version of the Westminster export model, was originally monarchical. It was amended in 1991 and Mauritius became a republic within the Commonwealth in 1992.

Comparative Legal Scholarship as Ordinary Legal Scholarship

2013 ◽  
pp. 1-33 ◽  
Author(s):  
Stephen A. Smith
Keyword(s):  
Subject Matter ◽  
Academic Discipline ◽  
Comparative Law ◽  
Legal Scholarship

This essay argues that comparative law is not and never will be a distinctive academic discipline. Various counter-arguments based on the alleged distinctiveness of comparative law’s (1) subject-matter, (2) methodology, (3) challenges, and (4) aims are identified and rejected. The essay concludes by arguing that comparative scholars should embrace the ordinariness of their scholarship. To the extent that comparative law is associated with a particular subject-matter, method, challenge, or aim its value will always be a matter for debate. By contrast, if comparative scholarship is just ordinary scholarship with more data (as I argue), its value is undeniable.

Sources Of Law and Legal Method in Comparative Law

2019 ◽  
pp. 875-901
Author(s):  
Stefan Vogenauer
Keyword(s):  
Comparative Study ◽  
Comparative Studies ◽  
Methodological Approach ◽  
Comparative Law ◽  
Legal Scholarship ◽  
Fourth Section ◽  
The Third ◽  
Legal Method ◽  
P Sources

Sources of law serve to separate the province of law from the realm of non-law. Only propositions that are derived from a valid source of law are genuinely legal propositions. This article outlines the role of sources of law and legal method in the study of comparative law. The second section explains why these topics have been central to comparative legal scholarship from its very beginnings. The third section attempts to clarify their ambit for the purposes of comparative study, and identifies the pitfalls lurking for the comparative lawyer who wants to determine another system’s sources of law and the methodological approach prevailing there. The fourth section gives an overview of the most important comparative studies specifically dedicated to these matters. The fifth section maps out some areas which merit further research.

CRIMINAL PROCEDURE IN CONTEMPORARY CHINA: SOCIALIST, CIVILIAN OR TRADITIONAL?

2010 ◽  
Vol 59 (4) ◽  
pp. 1099-1127 ◽  
Author(s):  
Bo Yin ◽  
Peter Duff
Keyword(s):  
Comparative Study ◽  
Legal System ◽  
Natural Science ◽  
Criminal Procedure ◽  
Comparative Law ◽  
Legal Systems ◽  
Legal Analysis ◽  
Methodological Tool ◽  
The Comparative Study ◽  
Analytical Device

Taxonomy, as a methodological tool introduced from natural science, brought the categorization of legal systems to comparative law.1The term ‘legal family’2is normally used as a metaphor, because it recognizes that within each grouping there are many variations. Each of the legal families is regarded as a combination of fundamental features of legal systems which have certain similarities. As an analytical device, taxonomy renders the comparison of different laws and legal institutions manageable by means of simplifying or abstracting the diverse and complicated realities of a myriad of legal systems. As a result, the concept of legal families acts as a support for legal borrowing and transplantation, as well as comprising an inevitable part of most comparative law works. Even where as few as two jurisdictions are involved, the categorization of legal families is still a useful tool for most comparative legal analysis. Assisted by the notion of legal families, comparativists can readily understand and explore an unfamiliar legal system.3Normally, such scholars tend to accept the conventional or widely accepted categorization of a particular legal system as belonging to a certain legal family. However, without detailed scrutiny of the first-hand material, distortions may arise as a result of preconceptions held at the beginning of the comparative study.4

scholarly journals Food Safety and Civil Liability of the Enterprise from the View of Comparative Law

2019 ◽  
Vol 35 (2) ◽  
Author(s):  
Nguyen Thi Phuong Cham
Keyword(s):  
Food Safety ◽  
Legal System ◽  
Technology Development ◽  
Product Liability ◽  
Civil Liability ◽  
Comparative Law ◽  
Point Of View ◽  
Legal Provisions ◽  
Legitimate Interests ◽  
Legal Subjects

As a method to protect the rights and legitimate interests of consumers directly, civil liability plays an important role in improving the legal provisions on food safety. However, the legal issues related to civil liability in general nor especially civil liability in the field of food safety are still remain very much debated by the diversity of relationships among the subjects in the process of production, circulation and consumption. The paper focuses on clarifying: (1) Theoretical and practical provisions apply from the point of view of comparative law, thus pointing out the problems that exist in the legal system in general, as in the Vietnamese legal system in particular on civil liability in the field of food safety; (2) Suggest some complete solutions for the purpose of introducing civil liability mechanisms such as: Protecting the rights and interests of consumers in a practical and effective way; Preventing violations of business in the context of science and technology development; Risk dispersion based on the theory of the balance of interests of civil legal subjects. Keywords: Food safety, civil Liability, tort law, product liability. References: [1] Xiang Li, Jigang Jin, Concise Chinese Tort Laws, Springer-Verlag Berlin Heidelberg, 2014. [2] Niwata Noriaki, Sự cố thực phẩm và vấn đề người tiêu dùng, Nghiên cứu thương mại Mitsuda, quyển 27 số 3. [3] Tạp chí án lệ số 307 (1974) 87-101. [4] Nakamura Hiroshi, Vi phạm hợp đồng và phương thức bảo vệ quyền (2), Tạp chí Đại học Doshisha Quyển 32 số 3 (1980). [5] Tạp chí Án lệ số 1109; Tạp chí thời báo án lệ số 1805. [6] Nozawa, Nghiên cứu pháp luật so sánh trách nhiệm đảm bảo khuyết tật Masamishi (6) - Nhật bản. Pháp. EU, Tạp chí Luật học Rikkyo, Số 91 (2015). [7] Suzuki Miyako “Hạn bảo quản và trách nhiệm đảm bảo khuyết tật trong luật Đức” Tuyển tập luận văn đại học ngoại ngữ Tokyo, số 91 (2015). [8] Felix Maultzsch, Hướng phát triển mới về trách nhiệm đảm bảo khuyết tật của người bán trong pháp luật Đức và Liên minh Châu Âu, Tạp chí nghiên cứu pháp luật chính sách, quyển 82, số 2. [9] Katsuhiko Akabori, Luật trách nhiệm sản phẩm và quản lí rủi ro doanh nghiệp, Tạp chí luật học Học viện Kobe, quyển 38, số 3,4 (2009) 35. [10] Uchida, “Bảo hiểm trách nhiệm bồi thường thiệt hại và sự tham gia của doanh nghiệp đến đâu ?”, Tạp chí thứ 6, quyển 26, số 7 (2018).    

scholarly journals Mediation in administrative proceedings: problems of theory and practice.

2021 ◽  
Vol 3 (3) ◽  
pp. 186-190
Author(s):  
Iryna Verba
Keyword(s):  
Dispute Resolution ◽  
Legal System ◽  
Alternative Dispute Resolution ◽  
Legal Regulation ◽  
Theory And Practice ◽  
Administrative Process ◽  
Legislative Framework ◽  
The Moment ◽  
Administrative Proceedings ◽  
Judicial Method

The article studies the the introduction of mediation in administrative proceedings. Implementation of other alternative ways of resolution of legal disputes, for example, such as mediation, can be an option to improvement of justice access and to reduction of court overloading. The sphere of administrative disputes is the most difficult for implementation of mediation procedure. Mediation is not able to displace and replace the judicial resolution of administrative disputes using the classic adversarial procedure. It is proposed to recognize adjudication mediation as the optimal procedure in resolving administrative disputes. Proposals and recommendations concerning creation of the legislative framework for the application of mediation as the alternative dispute resolution in administrative proceedings in Ukraine are formulated. That is why resolving the issue of relieving the judiciary is relevant for the use of mediation as an alternative way of resolving disputes or conflicts. Insufficient use of mediation as a way to resolve legal conflicts, including administrative ones, is low awareness of the advantages of this method of resolving legal conflicts and its advantages over the traditional judicial method of resolving legal disputes, insufficient legal regulation of mediation in Ukrainian legislation, lack of sufficient professional mediators who could provide quality mediation services, conservatism of both lawyers and participants in the administrative process at the moment of development of the legal system in Ukraine.

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