After Difference: A Meta-Comparative Study of Chinese Encounters with Foreign Comparative Law†

2020 ◽  
Vol 68 (1) ◽  
pp. 186-221
Author(s):  
Samuli Seppänen
Keyword(s):  
Side Effects ◽  
Comparative Law ◽  
Cultural Bias ◽  
European Law ◽  
Legal Systems ◽  
The West ◽  
Chinese Law ◽  
Foreign Law ◽  
Chinese Scholars ◽  
Political Differences

Abstract Do comparatists based in “radically different” legal systems experience “radical difference” and its side effects—self-doubt, suspicion of cultural bias, and feelings of inadequacy—when they research American and European law? Focusing on Chinese comparative law, this Article argues that Chinese legal scholars’ attitudes to difference (and similarity) are best explained as reflections of these scholars’ ideological projects. Describing American and European legal systems in terms of similarity rather than difference supports Chinese law reformers’ efforts to advance and defend Western-style legal institutions in China. Conversely, conservative socialist and neoconservative Chinese scholars who resist Western-style legal and political reforms seek to emphasize cultural, social, and political differences between China and the West. Comparative law therefore allows legal scholars to relate to foreign law in various, ideologically meaningful ways. Statements about difference and similarity—and attitudes towards understanding, in general—should be understood in the light of such ideological projects.

scholarly journals Expert Opinions on Foreign Law in Court: Applied Comparative Law in the Munich Institute for East European Law

2020 ◽  
Vol 1 (1) ◽  
pp. 111-130
Author(s):  
Herbert Küpper
Keyword(s):  
Basic Research ◽  
Comparative Law ◽  
European Law ◽  
Domestic Court ◽  
Legal Research ◽  
East European ◽  
Expert Opinions ◽  
Foreign Law ◽  
The Law

Comparative law has many facets. It often consists of basic research for academic purposes, but it may have a practical side as well. A genuine combination of basic and applied comparative legal research are expert opinions on foreign law for adomestic court. The expert researcher has to fully comprehend the foreign law on the books as well as in action, and has to be able to translate this foreign law into the legal background of the domestic court and into the procedural setting of the law-suit at hand. Taking the ‘Munich Institute for East European Law’ as an example, this essay describes the continuous basic research as a prerequisite for expertise on foreign law, as well as the practice of writing expert opinions for courts of law and authorities with regard to the law of the formerly socialist countries in Europe.

scholarly journals The influence of Western laws on Japanese law in history and experience for Vietnam today

2018 ◽  
Vol 34 (3) ◽  
Author(s):  
Mai Thang ◽  
Hoang Van Doan
Keyword(s):  
United States ◽  
Legal System ◽  
Legal History ◽  
The United States ◽  
Japanese Government ◽  
Legal Systems ◽  
The West ◽  
Foreign Law ◽  
Japanese Law ◽  
Modern Era

This article approaches from a legal history perspective to discover the effects of advanced laws in Western such as Germany, France, the United States on Japanese law in the modern era. Thereby, the authors clarify the ways of integrating foreign law and decode the choices, decisions of the Japanese government. This paper also focuses on analysis areas of the Japanese legal system that have been affected by the Western laws as well as clarifies the factors of foreign law integration and reasons of  the success of the Japanese legal system when it integrates laws from different legal systems of the West as well as the harmonious combination of traditional Japanese elements with extrinsic progress values. It shows the valuable experiences for Vietnam in the process of building and perfecting the current legal system..

Anti Anti-Orientalism, or Is Chinese Law Different?†

2020 ◽  
Vol 68 (1) ◽  
pp. 55-94
Author(s):  
Donald Clarke
Keyword(s):  
Legal System ◽  
Global Economy ◽  
A Priori ◽  
Comparative Law ◽  
Legal Order ◽  
The Political ◽  
The West ◽  
Chinese Law ◽  
Perceived Need ◽  
Object Of Study

Abstract Comparative law is haunted by the perceived need to avoid Orientalism: a type of analysis that postulates a dichotomy between the object of study and “the West,” finds the object lacking in certain essential qualities (or even having the opposite qualities of those the analyst deems essential), and then declares the object to be inferior. Yet a desire to avoid the errors of an Orientalist exaggeration and condemnation of difference all too often leads to an a priori denial of fundamental difference before the inquiry has even begun. The political imperative of anti-Orientalism takes precedence over all. This Article makes three arguments. First, it argues that there exists in comparative law scholarship in general, and in Chinese law scholarship in particular, a kind of anti-Orientalist discourse that needs to be critiqued because its very methodology makes it impossible to think certain thoughts and reach certain conclusions, regardless of the data. While I do not propose to rehabilitate Orientalism, I do maintain that it is time to move beyond anti-Orientalism. Second, it argues that data about what is conventionally called the Chinese legal system mean we have to seriously entertain the possibility that it is misleading to use the conventional language of Western jurisprudence (courts, judges, laws, rights) to talk about it, and not simply dismiss arguments to that effect as Orientalist or ethnocentric. Third, it argues that how we characterize China’s putatively legal order matters. China’s increasing integration into the global economy means that American institutions will increasingly have to deal with the products of that legal order. Questions about its fundamental nature can no longer be avoided. While the Article uses China as an example, its methodological point and conclusions apply more broadly to the analysis of any putative legal system. We should not derogate difference just because it is different, but we should not be biased against finding difference in the first place.

An Appraisal of the Influence of Legal Transplant on National Legal Systems

2020 ◽  
Vol 7 (1) ◽  
pp. 89-108
Author(s):  
Mantinkang Formbasso Lawrence
Keyword(s):  
Common Law ◽  
Comparative Law ◽  
Legal Systems ◽  
Legal Transplant ◽  
National Courts ◽  
Foreign Law ◽  
English Speaking ◽  
The Common ◽  
The Impact ◽  
National Legislatures

States may use foreign law for different reasons. Courts can do so when faced with a controversial new issue for which no apparent solution is found under national law. Often countries refer to laws or legal practices of other countries within the same legal family. This is done by Cameroonian courts, especially in the English speaking regions where the common law legal system applies. This paper analyses the impact and legitimacy of the use of foreign law paying particular attention to Cameroon. The analysis will be based on the following sequence: comparative law and national legislatures; comparative law and national courts; voluntary recourse to foreign law in domestic disputes; legitimacy of comparative law influence and reasoning; motives and strategies in valuing foreign law; and the extent to which legal systems are opened to foreign influence. The paper concludes that the Cameroon legal systems (common law and civil law) are highly influenced by legal transplant.

scholarly journals Comparative Law and its Influence on National Legal Systems

2006 ◽  
pp. 512-538 ◽  
Author(s):  
Jan M. Smits
Keyword(s):  
Constitutional Law ◽  
Critical Evaluation ◽  
Comparative Law ◽  
Private Law ◽  
Legal Systems ◽  
Fourth Section ◽  
Foreign Law ◽  
State Of Affairs ◽  
National Legislatures ◽  
National Systems

This article assesses the scholarly state of affairs regarding the influence of comparative law in national systems. In so doing, emphasis is put on private law and constitutional law, as these are the two areas where comparative inspiration is discussed most vigorously. The second and third section distinguishes several types of use of comparative law by national legislatures and courts, providing the background for a critical evaluation of this influence in the subsequent sections. The fourth section discusses the legitimacy question and the question of how to categorize the different uses of foreign law. The fifth section addresses why a legislature or court actually refers to foreign law and is how to explain the different extent to which countries are open to foreign influence. The last section considers the exact influence of comparative law arguments on the legislature's or court's reasoning.

Introduction: What Is Comparative Law?

2019 ◽  
pp. 3-44
Author(s):  
Uwe Kischel
Keyword(s):  
Comparative Law ◽  
Legal Systems ◽  
Central Question ◽  
Simple Analysis ◽  
Legal Situation ◽  
Foreign Law ◽  
Legal Texts

This introductory chapter provides an overview of comparative law. Comparative law involves research into foreign legal systems. It cannot be limited to a simple analysis of the legal situation as revealed by legal texts. Rather, the comparative lawyer must also take into account the realities of law in action in a country. Comparative law then requires an evaluation of the legal results found for each country under scrutiny. Once the comparative lawyer determines which differences and similarities exist in the solutions found by different legal systems, the comparative lawyer can approach the central question of comparative law: the classification and evaluation of these results. The chapter then differentiates comparative law from foreign law studies.

scholarly journals Comparative Law and its Influence on National Legal Systems

2019 ◽  
pp. 501-523 ◽  
Author(s):  
Jan M. Smits
Keyword(s):  
Constitutional Law ◽  
Critical Evaluation ◽  
Comparative Law ◽  
Private Law ◽  
Legal Systems ◽  
Fourth Section ◽  
Foreign Law ◽  
State Of Affairs ◽  
National Legislatures ◽  
National Systems

This article assesses the scholarly state of affairs regarding the influence of comparative law in national systems. In so doing, emphasis is put on private law and constitutional law, as these are the two areas where comparative inspiration is discussed most vigorously. The second and third section distinguishes several types of use of comparative law by national legislatures and courts, providing the background for a critical evaluation of this influence in the subsequent sections. The fourth section discusses the legitimacy question and the question of how to categorize the different uses of foreign law. The fifth section addresses why a legislature or court actually refers to foreign law and is how to explain the different extent to which countries are open to foreign influence. The last section considers the exact influence of comparative law arguments on the legislature’s or court’s reasoning.

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.

Compensation of Injuries and Homicide in Ming and Qing Law

2017 ◽  
Vol 35 (4) ◽  
pp. 977-1016
Author(s):  
Frédéric Constant
Keyword(s):  
Tort Law ◽  
Primary Concern ◽  
Legal Systems ◽  
Specific Approach ◽  
Chinese Law ◽  
Judicial Practice ◽  
Points Of View ◽  
Western Law ◽  
Central Purpose

Assessment and awarding of compensation to victims of injury and loss are among the main duties performed by courts in many different legal systems. In Western law, it constitutes a central purpose of tort law, which in itself is one of the fundamental branches of law. Did Chinese law have a specific approach to the question of compensation, which singularizes it from other legal systems? From the points of view both of statute law and judicial practice, my primary concern is to investigate whether compensation was granted to victims of injury or death under the Ming and Qing laws.

scholarly journals The Applications of Intention (Qaedat al- Umu:r bi Maqasidaha) in Saudi Law: A Comparative Study

2020 ◽  
Vol 13 (2) ◽  
pp. 1
Author(s):  
Majed Al-Shaibani
Keyword(s):  
Saudi Arabia ◽  
Cultural Context ◽  
Comparative Law ◽  
The West ◽  
Theoretical Understanding ◽  
Sharia Law ◽  
The World ◽  
Similarities And Differences ◽  
New Vision ◽  
Western Law

The current study aims to tackle the theoretical understanding of intention as between Sharia and law. It addresses the similarities and differences in the analysis of interpretation of intention across sharia law and law. The paper contrasts between the two ways of dealing with the concept of intention that is both technical and intuitive, across law and religion. Starting from the hypothesis that the concept of intention in sharia law originated in classical contextual realities different from the contemporary realities of Saudi Arabia and become outdated, the study attempts to answer the following questions: How can the concept of intention be adapted to the new socio-economic realities of Saudi Arabia with its new vision toward the world? How can the concept of intentionality adopt by sharia benefits from the analysis of law theory relating to intention? In order to answer the questions of the study, the study adopts the comparative law methodology through which concept of intention is comparatively examined in both sharia and law. The research investigates the historical and cultural context that gives rise to the concept of intentionality in both sharia law and law, as it helps reflect on aspects of similarity and differences and how gap between the sharia law and law can be bridged. The collected data is obtained through comparing sharia law in Saudi Arabia to the law applied in the West. The study has reached a conclusion that the sound methodological application of the concept of intention in sharia law requires the integration of elements and concepts from the Western law concept of intention.

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