Comparing legal cultures of Eastern Europe: the need for a dialectical analysis

Legal Studies ◽  
1996 ◽  
Vol 16 (2) ◽  
pp. 157-184 ◽  
Author(s):  
Bogumila Puchalska-Tych ◽  
Michael Salter

Comparative legal studies have been haunted by many unresolved scholarly problems of a methodological and theoretical nature which too often continue to be ignored within the literature. The deficiencies in theory and method of comparative legal studies have rightly been often blamed for marginalisation of this subject in legal education and practice. The aim of the present article is to contribute to this general debate by identifying and then analysing certain deficiencies of approach to the task of comparing western and socialist legal systems and cultures. Our main preoccupation is to address critically the methodology of comparative law not only for its own sake but also in response to the challenge raised by Bell's recent claim that legal theory has much to learn from reflecting upon the issues raised by the comparative enterprise.

2018 ◽  
Vol 2 (2) ◽  
pp. 120
Author(s):  
Jean-Louis Halpérin

<p><strong>RESUMÉ:</strong></p><p>La réflexion sur la diversité des approches méthodologiques en droit comparé n’a guère porté, au cours de ces dernières décennies, sur le droit pénal. Cette relative lacune de la littérature tient à une conception d’un droit pénal universel qui connaîtrait seulement quelques variations dans la sévérité plus ou moins grande de la répression. Il apparaît pourtant utile pour les comparatistes d’identifier de manière historique les développements de la discipline du droit pénal et de considérer que le champ pénal n’est pas identique à lui-même à travers le temps et l’espace. Cette contribution s’attache à montrer comment la spécialisation des pénalistes, à partir du XIXe siècle, s’est accompagnée longtemps d’une démarche comparative avant que ne s’installe une sorte de désintérêt pour la comparaison des infractions reconnues ou non par les différents ordres juridiques étatiques. Or, la prise en compte des phénomènes de criminalisation et de décriminalisation montre à quel point ces droits étatiques sont susceptibles de converger ou de diverger, en présentant des configurations beaucoup plus complexes que les traditionnelles familles de droit. En recourant à la théorie du droit, le droit pénal comparé alimente la réflexion sur la place des lois prohibitives, leur éventuelle relation avec des normes culturelles et le recours à des interdits dans des domaines qui font l’objet dans d’autres pays à des lois permissives.</p><p> </p><p><strong>RESUMO:</strong></p><p>A discussão sobre a diversidade de abordagens metodológicas em direito comparado, no decorrer das últimas décadas, pouco se debruçou sobre o direito penal. Esta lacuna se deve à uma concepção de direito penal universal que admitiria apenas variações no grau de severidade da repressão. Contudo, para os comparatistas mostra-se útil identificar historicamente o desenvolvimento da disciplina de direito penal e considerar que o campo não se mantém inalterado através do tempo e do espaço. Este trabalho visa mostrar como, a partir do século XIX, a especialização de penalistas foi acompanhada por muito tempo de uma abordagem comparativa, antes de que se instalasse um desinteresse pela comparação de infrações reconhecidas -ou não- por diferentes ordenamentos jurídicos estatais. A compreensão dos fenômenos de criminalização e descriminalização mostra até que ponto os direitos estatais são suscetíveis de convergir ou divergir, apresentando configurações muito mais complexas que as tradicionais famílias de direito. Assim, utilizando-se da teoria do direito, o direito penal comparado incita a reflexão sobre o papel das leis proibitivas, sua eventual relação com normas culturais e a possibilidade de proibições em determinadas matérias serem objetos de leis permissivas em outros países.</p><p> </p><p><strong>ABSTRACT:</strong></p><p>The discussion about the methodological diversity in Comparative Law has barely touched upon criminal law. This gap in the literature is due to a conception of universal Criminal Law in which only variations regarding the severity of crime’s repression would be admitted. Nonetheless, the historical study of Criminal Law along with the reflection on changes in the discipline through time and space has proven to be useful for comparatists. The aim of this study is to show how the specialization of scholars of Criminal Law, since the 19th century, had been accompanied by a comparatist approach before a pervasive disinterest in comparing infractions under different legal systems came to be the rule. The phenomena of criminalization and decriminalization reveal to what point legal systems converge or diverge in a more elaborated way than those depicted by the traditional division of legal systems. Thus, Comparative Criminal Law, using the insights from Legal Theory, stimulates reflections on the role of prohibitive laws, their relation with cultural norms, and the possibility of a prohibition being permitted elsewhere – i.e. other countries.</p><p> </p>


2009 ◽  
Vol 10 (6-7) ◽  
pp. 929-958 ◽  
Author(s):  
Phillip G. Bevans ◽  
John S. McKay

The Association of Transnational Law Schools [ATLAS] is a consortium of seven law schools from four continents that launched an annual academic summer program, called the Agora, for doctoral students this past July 2008. As the name of the consortium would suggest, the program focused on transnational law. The Agora is one of several multi-school initiatives aimed at furthering the study of the globalizing legal environment. The Agora both reflects and furthers a trend in legal scholarship, and as a consequence legal education, toward a focus on a set of interrelated concerns, which include globalization, international governance, transnational law, comparative legal studies, legal transplantation and the apparent conceptual challenges that these pose. In important respects these new conceptual challenges have a long pedigree in questions about the scope of legal pedagogy and theory. The pedagogical controversy is rooted in questions about the purpose of legal education, namely, whether it is trade training and should focus on practical legal skills, or whether it should be conceived of as broader than this. Intimately connected to this pedagogical controversy is a legal-theoretical controversy about the scope of legal theory (and thus the nature of law and its investigation). Does the word “law” designate the organizational instruments of state power, or should we think of “law” as referring to a more diverse set of social-organizational systems that may have greater or less affinity and connection with state law?


2009 ◽  
Vol 10 (6-7) ◽  
pp. 889-912 ◽  
Author(s):  
Helge Dedek ◽  
Armand de Mestral

Legal education is changing. What is changing is our understanding of “education”, of how we learn and how we should teach. Also changing is our understanding of how to define what is “legal” about “legal education”. Most will nowadays agree that legal education should be more than a vocational training for the practice of the profession in a particular jurisdiction. In analyzing the development of legal education in recent years, we can distinguish two trajectories. Firstly, there is the ongoing attempt of specifically the North American legal academy to make legal studies a transdisciplinary endeavour, a development closely connected to the major “paradigm shifts” in legal theory in the 20th century. Secondly, it seems that jurisdictional boundaries have lost significance in an internationalized, globalized and post-regulatory environment. This calls into question the very notion of “law” itself, at least as traditionally understood as a system of posited norms within a given jurisdiction. How should both developments be reconciled?


2014 ◽  
Vol 39 (2) ◽  
pp. 191-209 ◽  
Author(s):  
Thomas Hoffmann

While in theory the great didactic benefits of teaching comparative private law in legal education have generally rarely been denied, the implementation of comparative private law in academic curricula has proven to be a persistent challenge—both in terms of the mode and the degree of implementation. In Central and Eastern Europe, the comparative private law boat has recently been bouncing on especially rough seas: although comparative law formally is still included in the curricula in many places, it is in fact being avoided more and more by both teachers and students as a subject in post-socialist states. The reversion of this development may not be easy, but it is far from impossible, as there are—to my mind—far more tools enhancing the teaching of comparative law (be it in didactic, structural or financial terms) than generally assumed. In this article, I would like to present some of them.


2019 ◽  
Vol 89 ◽  
pp. 45-61 ◽  
Author(s):  
Alexandra Mercescu

This paper seeks to emphasize the merits of comparative law as a critical legal enterprise. For this purpose, it first provides a brief overview of the various forms of critique that have been advocated in the field of comparative law. Second, it discusses four epistemological concerns as regards legal comparison that are meant to orient comparatists towards a critical mode of comparative reasoning. While most of the remarks comprised in this contribution apply to legal comparisons in general, a few observations shall be made with specific reference to the stakes and limits of legal comparisons in Central and Eastern Europe.


2017 ◽  
Vol 2 ◽  
Author(s):  
Veronika Keir

<div class="page" title="Page 3"><div class="layoutArea"><div class="column"><p><span>Veronika is a recent graduate from the Honours Legal Studies program at the University of Waterloo. Her passions are socio-legal research, policy development, feminist legal theory, and crime control development. Veronika is currently working a full-time job at Oracle Canada, planning on pursuing further education in a Masters program. </span></p></div></div></div>


Author(s):  
Paul B. Miller

This chapter charts new frontiers of scholarly inquiry in fiduciary law. The chapter first orients the reader by taking stock of the current state of play in fiduciary scholarship. It then identifies a range of important questions that should inspire future work in the field. More specifically, it identifies pressing questions of legal theory (conceptual and normative analysis), economic and empirical legal studies (including classical and behavioral economic analysis), and historical and sociological inquiry. The chapter also raises questions of interest to private law theorists and scholars interested in exploring the significance of fiduciary principles within various subfields, from trust and corporate law to health law and legal ethics.


Author(s):  
Karen Knop

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.


Global Jurist ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Elena Ioriatti

Abstract Despite the ongoing developments in comparative law studies, European legal language is still in want of responses with regard to its own characteristics and impact in the Member States. This article suggests an interdisciplinarity perspective, that of comparative law and semiotics, as well as the observation of the normative forces grounding the practices of EU law in the Member States As a dialogical conclusion, a Restatement, will be suggested, where EU concepts could be channelled. This intellectual tool could be relevant in legal education too and favour the institutional dialogue among national and European actors of the multilingual legal process.


2021 ◽  
Vol 18 (1) ◽  
pp. 33-54
Author(s):  
Kyriaki Topidi

Multiculturalism is continuously and relentlessly put to the test in the so- called West. The question as to whether religious or custom- based legal orders can or should be tolerated by liberal and democratic states is, however, by no means a new challenge. The present article uses as its starting point the case of religious legal pluralism in Greece, as exposed in recent European Court of Human Rights (ECtHR) case- law, in an attempt to explore the gaps and implications in the officially limited use of sharia in Western legal systems. More specifically, the discussion is linked to the findings of the ECtHR on the occasion of the recent Molla Sali v. Greece case to highlight and question how sharia has been evolving in the European legal landscape.


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