scholarly journals The Question of Comparison

2021 ◽  
Author(s):  
Ida Petretta
Keyword(s):  
Legal Reasoning ◽  
Comparative Law ◽  
Legal Tradition

Abstract Comparison is a key component of legal reasoning. We move merrily from like to like within the doctrine of precedent. We invoke comparison whenever we distinguish or apply a case. This Article begins by elucidating how comparison is present in law. The Article shows how law cannot function without comparison, and how the legal world skips over the central role comparison plays in these matters. The Article explores the literature on legal comparison and draws on insights from philosophy, comparative law, and anthropology to better understand comparison in practice. This Article argues that while we are entangled in the questions of sameness and difference, of finding the function and tying together, we are still not asking the question of comparison. What is function and how is it related to comparison? Inspired by James Tully’s writings, the Article explores the aspectival views of the legal world suggested by the different games of comparison. The Article draws on Stephen Mulhall’s work on Wittgenstein’s seeing as, aspect dawning, and aspect blindness to further ask about our relationship to comparison. The Article shows how mainstream comparisons are ontic comparisons that think togetherness through the comparatist. The comparatist steers the belonging together and (un)makes the meaning of all things in mainstream comparison. The argument builds on earlier work by Igor Stramignoni, showing how the Western legal tradition is within a kind of Heideggerian calculative thinking. The Article explores the possibility of other kinds of comparison through Stramignoni’s poetic comparisons. This Article calls on us to slow down our comparisons and begin to question comparison itself.

The Japanese Supreme Court as a Litmus Test for Generic Constitutionalism?

2020 ◽  
Vol 9 (1) ◽  
pp. 17-48
Author(s):  
Elisa Bertolini ◽  
Graziella Romeo
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Cultural Context ◽  
Legal Reasoning ◽  
Comparative Law ◽  
Fundamental Rights ◽  
Legal Tradition ◽  
Litmus Test ◽  
Proportionality Test ◽  
Constitutional Adjudication

Scholars have, at times, resorted to the concept of generic constitutional law to describe commonalities emerging across jurisdictions with regard to the way in which constitutional law protects rights and prescribes how they can be limited. Comparative law studies on fundamental rights underline how courts, operating in diverse legal cultures all influenced by the Western Legal Tradition, tend to resort to some adjudication techniques such as the reasonableness test and the proportionality test. Those comparative studies, nonetheless, concede that constitutional adjudication techniques may be differently articulated and applied according to diverse degrees of strictness. However, those differences do not receive much attention when it comes to the comparison of legal reasoning concerning rights. Adjudication techniques seem to be able to trigger the same theory of rights at any latitude, the same understanding of the dialectic between liberty and authority. Against this backdrop, our paper aims at arguing that the Japanese Supreme Court uses both proportionality and reasonableness with a clear cultural imprinting, thus potentially questioning generic constitutionalism, proving that the cultural context may alter the functioning of the abstract models of the constitutional aggregates.

REVIEW OF THE BOOK “SCIENTIFIC CONCEPT OF DEVELOPMENT OF THE RUSSIAN LEGISLATION” (monograph. 7 th ed., revised and supplemented. S. E. Naryshkin, T. Y. Khabrieva, A. I. Abramova, etc.; еditors-in-chief T. Y. Khabrieva, Y. A. Tikhomirov; the Institute of Legislation and Comparative Law under the Government of the Russian Federation. Moscow, 2015. 544 p.)

2016 ◽  
pp. 0-0 ◽  
Author(s):  
Жерар Марку ◽  
Zherar Marku
Keyword(s):  
Russian Federation ◽  
Western Europe ◽  
Comparative Law ◽  
Legal Framework ◽  
Scientific Concept ◽  
Legal Tradition ◽  
Fundamental Research ◽  
Russian Law ◽  
The Government

The review sets out the opinion of a French lawyer with respect to the fundamental research prepared by a team of scientists from the Institute of Legislation and Comparative Law under the Government of Russian Federation. It is noted that the monograph contains not only a detailed analysis of the legal framework but also proposals aimed at improving the quality of the Russian legal system. The publication is also aimed at solving problems in the context of the reform of the Russian law and is a doctrinal contribution to the renewal of the Russian legislation. It is emphasized that the study reflects changes in the administrative law and process in Russia which are very similar to the events in Western Europe. Emphasis is laid on the Russian legal approaches which are not used in the Western European legal tradition, but deserve more attention on the part of foreign colleagues.

Exploring the Platonic Heaven of Law

2020 ◽  
Vol 3 (1) ◽  
pp. 1-18
Author(s):  
Giuseppe Martinico
Keyword(s):  
Legal Reasoning ◽  
Comparative Law ◽  
Case Law ◽  
Eu Law ◽  
Crucial Importance ◽  
Harsh Criticism ◽  
Explicit Comparison

The aim of this article is to explore the general principles of EU law from a comparative law perspective. Instead of offering a descriptive overview of the cases where the CJEU has relied on explicit comparison in its case law concerning the general principles. I shall articulate this article as follows: first, I shall recall the reasons why comparative law is on paper of crucial importance to the CJEU when interpreting the general principles. Second, I shall mention the different methodological options possible for the CJEU in this field. Third, I shall look at comparative law as a source of transparency in the legal reasoning of the Court by recalling some problematic cases, where the lack of explicit comparison caused harsh criticism for the case law of the Luxembourg Court.

Argument by Analogy In Europian Law

1998 ◽  
Vol 57 (3) ◽  
pp. 481-521 ◽  
Author(s):  
Katja Langenbucher
Keyword(s):  
Decision Making ◽  
European Union ◽  
Legal Reasoning ◽  
European Law ◽  
The European Union ◽  
European Level ◽  
Legal Tradition ◽  
Judicial Decisions ◽  
Argument By Analogy ◽  
Struggle For Recognition

ARGUMENT by analogy is one of the oldest methods of decision making. Whenever the similarity between two situations induces someone to decide one case like another, an analogy is drawn. Argument by analogy also forms an integral part of legal reasoning. Arguably, every legal tradition employs some version of it to justify judicial decisions. European law has only just started to develop its own distinct jurisprudence. As the various judicial systems present in the European Union struggle for recognition of their legal heritage, the way in which arguments by analogy will be used on an European level is likely to combine different approaches.

scholarly journals Consult Your Heart

2022 ◽  
Vol 21 ◽  
pp. 229-257
Author(s):  
Mutaz Al-Khatib
Keyword(s):  
Moral Judgment ◽  
Legal Reasoning ◽  
Moral Knowledge ◽  
Legal Tradition ◽  
Moral Formation ◽  
Islamic Ethics ◽  
Interdisciplinary Field ◽  
Islamic Tradition ◽  
Sources Of Knowledge ◽  
The Individual

In this article, I explore the authority of the heart (qalb) as a potential locus for the individual moral knowledge and normativity in Islamic ethics. To do so, I discuss the two ḥadīths that ostensibly suggest one’s “self” as a source of moral judgment. These ḥadīths raise renewed questions about the sources of moral judgment, the nature of moral judgment and the ethical capacity of the “self” (conscience)—“consult your heart and consult your self …”; “righteousness is good conduct, and sin is that which rankles in your chest and which you would hate for other people to look upon.”  There are rich debates in the Islamic tradition on the place and authority of the bāṭin (inward) in generating moral knowledge, which correspond to contemporary discourses in Western ethics on the place of conscience in the moral formation of the individual. In this article, I argue that although Islamic legal tradition as a discipline has focused on qualified external actions of individuals and the ijtihād (independent legal reasoning) of mujtahids (jurists), it did not ignore the authority of the bāṭin for moral assessment and the ijtihād of common individuals. I propose that the inward dimension has always occupied an important space within the interdisciplinary field of Islamic ethics but has been overshadowed by the overarching theological disputes between the Muʿtazilīs and Ashʿarīs over the sources of knowledge.  The article starts by exploring the relevant aḥādīth (reports) and their interpretation in ḥadīth commentaries, followed by an analysis of discussions in the fields of Islamic jurisprudence and Sufism.

Das Verbot der Auslandsbestechung

2019 ◽  
Author(s):  
Cornelia Spörl
Keyword(s):  
Legal History ◽  
Legal Theory ◽  
Legal Reasoning ◽  
Comparative Law ◽  
Penal Code ◽  
Central Importance ◽  
New Form

Why do we criminalise foreign bribery? This question is of central importance for the legitimation and interpretation of relevant criminal offences in this respect. In this book, the author examines this issue from the perspectives of legal theory, legal history and comparative law, and provides a solution by virtue of a new form of structured legal reasoning. On this basis, the commonly discussed problems of section 335a of the German penal code, as well as sections 331–334 in connection with section 11, paragraph 1, number 2a of the German penal code can be resolved. In addition, the author suggests ways of clarifying the statute.

‘By The Light of The Moon’: Looking For China’s Rich Legal Tradition

2018 ◽  
Author(s):  
Tahirih V. Lee
Keyword(s):  
Legal History ◽  
Ground Improvement ◽  
Comparative Law ◽  
The Moon ◽  
Legal Tradition ◽  
The Law ◽  
Substantive Law ◽  
Near Future

This chapter begins with a brief overview of the foundations of the field of Chinese legal history. It then delves into questions of methodology and approach. Three such questions face the field now and in the near future. First, historians, law scholars, and anthropologists with their different training and bases of knowledge, ask different questions about law. Second, comparative law inextricably intertwines with Chinese legal history, and its use and abuse needs to be examined and its lessons be better learned. Third, given the sophistication for centuries of Chinese rulers’ efforts to propagate official lines about the law, it has been exceedingly difficult for scholars to pierce through it to see what was actually happening on the ground. Improvement in this will help us understand how, and the extent to which, substantive law reached the population during different periods of China’s history.

scholarly journals The Limits of Judicial Fidelity to Law: The Coxford Lecture

2011 ◽  
Vol 24 (2) ◽  
pp. 305-325 ◽  
Author(s):  
Jeffrey Goldsworthy
Keyword(s):  
United States ◽  
Rule Of Law ◽  
Good Governance ◽  
Legal Reasoning ◽  
The United States ◽  
Wishful Thinking ◽  
Relative Importance ◽  
Legal Tradition ◽  
Liberal Democracies ◽  
The Rule Of Law

This lecture asks whether judges might sometimes be morally justified in covert law-breaking in the interests of justice, the rule of law or good governance. Many historical examples of this phenomenon, are provided, drawn mainly from the British legal tradition, but also from Australia, Canada, India and the United States. Judicial noble lies are distinguished from fig-leaves and wishful thinking, and the relative importance of logic and pragmatism in legal reasoning is discussed. After examining arguments for and against judicial subterfuge, it is concluded that in modern liberal democracies subterfuge is justified only to avoid extreme injustices or violations of the rule of law.

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