Empirical Legal Studies, Comparative Constitutional Law and Legal Doctrine: Bridging the Gaps

2018 ◽  
Vol 43 (4) ◽  
pp. 383-410
Author(s):  
Stephan G. Hinghofer-Szalkay
Keyword(s):  
Case Law ◽  
Legal Systems ◽  
Legal Analysis ◽  
Legal Doctrine ◽  
Legal Scholarship ◽  
East European ◽  
Legal Studies ◽  
Positive Law ◽  
Intimate Knowledge ◽  
Quantitative Analyses

This article looks into the viability of approaches to engaging in empirical comparative constitutional legal analysis. Quantifying the words contained in constitutions, while by no means irrelevant, can only be an element in this. Their actual importance according to case law and other empirical data highlights the need for caution in drawing far-ranging comparative conclusions from such quantifications for constitutional legal systems. It is argued that the key phenomenon driving these systems can be found elsewhere: In the paradigmatic concepts of a particular system of legal scholarship, other epistemic communities, or society at large. However, while this phenomenon can be empirically studied, any meaningful study necessitates intimate knowledge of legal scholarship as the meaning of communicative symbols involved can strongly diverge from the paradigmatic concepts of (other) social sciences. Central and East European (cee) constitutional legal systems can be of special interest in this regard due to both close similarities and considerable variations of both positive law and the paradigms of legal scholarship and political thought. Ultimately, an empirical analysis requires a holistic and systematic approach to understanding constitutional systems, including positive law and the paradigms driving it analyzed with quantitative as well as qualitative tools. Otherwise, the push for empirical comparative constitutional legal research may thwart its goal of accurately depicting the observable world, and, in the case of quantitative analyses, can run counter to the goal pursued.

scholarly journals Legal Convergence as a Trend of Global Legal development. Review of the Monograph: Bezborodov Yu.S. “Methods and Forms of Legal Convergence in International Law”. Moscow, Prospect, 2020. 240 p. (in Russian).

2020 ◽  
pp. 145-153
Author(s):  
R. M. Khalafyan
Keyword(s):  
International Law ◽  
Methodological Approach ◽  
Scientific Work ◽  
Legal Regulation ◽  
Current Phase ◽  
Legal Systems ◽  
Legal Analysis ◽  
Legal Doctrine ◽  
Social Phenomena ◽  
Scientific Methods

INTRODUCTION. The review reflects the specifics of the methodological approach, implemented by Yu.S. Bezborodov in the analysis of the current phase of interaction between national legal systems and international law. Reference is made to the creation of a new conception that employs the notion of legal convergence to reveal the mechanism of getting national legal systems affinitive to each other. Attention is drawn to the content of legal convergence, the reasons for its dissemination, the link with international law as well as the correlation of convergence with related categories – globalization, universalization, sovereignty, etc. The author’s views on the interrelation between sovereignty and supranationality, universalization and localization as conditions of functioning of international law, constituting the predominant basis of convergence of national legal systems, are presented. The evaluation is given to the author’s position concerning the methods of legal convergence, in particular international legal integration. The emphasis is given to correlation of the presented forms of legal convergence. It is pointed out that comparative and legal analysis of integration in different regions of the world, including in the post-Soviet space, is important for understanding the current results of legal convergence.MATERIALS AND METHODS. The study is based on the conclusions and approaches formulated in the peer-reviewed monograph as well as the materials of the domestic and international legal doctrine on the subject-matter concerned. In writing the review the author used general and special scientific methods.RESEARCH RESULTS. The convergence of national legal systems and international law is influenced by different processes either inherent to the mechanism of international legal regulation or extraneous to it. They are distinguished by their considerable specificity and varied character. However, they do not impede legal convergence to be realized through various forms and methods.DISCUSSION AND CONCLUSIONS. The review of the scientific work led to the following conclusions: a) the author managed to present his own non-contradictory conception of convergence of national legal systems and demonstrate its connection with a number of current social phenomena; b) the monograph provides convincing arguments for the proposed forms and methods of legal convergence; c) the comparative legal characteristics of the regional international integration organizations are detailed and allows to form quite complete and correct comprehension of them. In addition, the review outlines a number of issues interesting for further discussion.

Տրանսցենդենտալ ֆենոմենալոգիան որպես իրավական հետազոտությունների իրականացման մեթոդ

2021 ◽  
pp. 258-274
Author(s):  
Gevorg Barseghyan ◽  
Mane Markosyan ◽  
Hrayr Hovakimyan
Keyword(s):  
Transcendental Phenomenology ◽  
Phenomenological Approach ◽  
Legal Regulation ◽  
Law School ◽  
Point Of View ◽  
Legal Doctrine ◽  
Legal Studies ◽  
Advantages And Disadvantages ◽  
Positive Law ◽  
The One

This article examines the essential meanings of phenomenological philosophy and law school of transcendental phenomenology. Attention is paid to methodological features of phenomenological approach of legal perception. In the context of domestic legal doctrine, attention is paid to both advantages and disadvantages of this approach. Conclusion is made that phenomenology is a specific, effective methodology synthesizing diverse explorative perceptions. Phenomenology, as a theory and methodology of law, is part of non-classical legal science, separate elements of this method are used in the context of other non-classical legal approaches such as hermeneutics and axiology of law. It must be emphasized that phenomenology of law is an alternative to sociological and natural-legal perception of law and, at the same time, in its context the synthesis of these two methods of legal exploration is done to some extent. The main feature of legal phenomenology is its orientation to modern law as a sociological process that is going on in the world of “open” life on the one hand, and to potential law as a basis for universal ideal law, on the other hand. Phenomenological approach can be used as a mechanism for exploring current positive law. From such point of view, ideal legal system is discovered in any legal regulation due to which the enforcement of legal regulation is exercised. The purpose of this work is to conduct a comprehensive study of transcendental phenomenology of law as a method of conducting legal study. In order to satisfy the purpose set above, the following problems are introduced.  The study of transcendental phenomenology as an approach,  The study of transcendental phenomenology as a research method,  The reveal of transcendental phenomenology essence as a means of methodology of acknowledgement of law. The methodological basis of this article are the dialectical and historical methods. The object and subject of the research were observed using such general and special methods of scientific knowledge, as dogmatic, comparative-legal, legal modeling, logical analysis. Based on the analysis made in the context of this work, suggestions are made which are directed at developing the efficiency of phenomenology as a means of conducting legal studies, as well as the accomplishment of legal modeling.

scholarly journals Japan as a Source of Legal Ideas: A View from the Mekong Subregion of ASEAN

2021 ◽  
Vol 13 ◽  
pp. 19-46
Author(s):  
Nobumichi Teramura ◽  
◽  
Keyword(s):  
Economic Growth ◽  
Development Aid ◽  
Legal Systems ◽  
Host Countries ◽  
Legal Development ◽  
Legal Studies ◽  
Positive Law ◽  
Japanese Law ◽  
Prevailing View

Much has been written about Japanese law within the context of Japan. Less is known about the application of Japanese legal models outside Japan. A prevailing view among some commentators is that Japanese law scholarship does not offer insights that are useful beyond Japan-based legal studies. Other scholars challenge this perception by invoking Japan’s legal development aid projects in the Mekong subregion of ASEAN—especially in Vietnam, Cambodia and Laos. These projects have been in operation for over twenty years and aim to foster the economic growth of host countries. This article aligns with the view that Japanese law exists beyond, and is influential outside, Japan. It calls for further action by legal specialists to re-examine and re-assess the corresponding influence of Japanese positive law in these countries, both in improving the transparency of those legal systems and enhancing communication among local, comparative and Japanese law experts.

The Concept of the Administrative Law Doctrine

2020 ◽  
Vol 27 (2) ◽  
pp. 14-26
Author(s):  
Tetiana Kolomoiets ◽  
Valerii Kolpakov
Keyword(s):  
Scientific Work ◽  
Legal Framework ◽  
Administrative Law ◽  
Practical Significance ◽  
Legal Analysis ◽  
Legal Doctrine ◽  
Positive Law ◽  
History Of Law ◽  
Theory Of Law ◽  
Definition Of

In conditions of modern state-building and law-making caused by significant changes in positive law, arises the necessity of developing a new understanding of the doctrine of administrative law. This understanding should be based on the methodological pluralism, present the doctrine as a complex, multidimensional system phenomenon that denotes a set of legal scientific judgments about administrative legal framework. The above outlines the purpose of this study. The main method of scientific work is the method of legal analysis, the use of which allowed, in the context of a holistic presentation of knowledge about the doctrine of administrative law, to determine its concept, structure, system by analysing the consequences of: a) the philosophy of law, b) the theory of law, c) the history of law; d) the administrative law. The focus is on the methodological significance of philosophical, theoretical positions, connections with the general legal doctrine in the mutual perception of research achievements; delimitation of administrative law with other branches; ensuring the consideration of administrative legislation in the statutory material of other branches of law (and vice versa); identification of the identity or differences in the genesis of legal phenomena, etc. It is proved that the phenomenon "doctrine of administrative law" constitutes a system described by: 1. Unity in relation to the environment (integrity) and diversity of relations with it; 2. Its structure, the presence of relatively independent components in its system; 3. The presence of determinant features of "doctrine" as an entity, which constitute the result of the interaction of its components; 4. The presence of contradictions within the system that are the driving force of self-development of the system; 5. Historicity, the presence of over-time development, the "historical basis" and the experience of the past. The definition of the doctrine of administrative law is offered. The practical significance of the research results is that the theoretical provisions and conclusions can form the basis for further research on the doctrine of administrative law and its issues

scholarly journals Ius Constitutionale Commune en América Latina: Observations on Transformative Constitutionalism

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 109-114 ◽  
Author(s):  
Armin von Bogdandy
Keyword(s):  
International Law ◽  
Separation Of Powers ◽  
Legal Discourse ◽  
Case Law ◽  
New Approach ◽  
Legal Scholarship ◽  
Positive Law ◽  
America Latina ◽  
Legal Concepts ◽  
Opening Up

A new approachIus Constitutionale Commune en América Latina (ICCAL) constitutes a new approach to constitutionalism in the region. It has transformative aims and draws its energy from the perception of unacceptable conditions of a systematic nature. Like many legal concepts it refers both to positive law as a well as to the legal discourse connected to it. In terms of positive law, it is above all based upon the American Convention on Human Rights and other inter-American legal instruments, the concordant guarantees of national constitutions, the constitutional clauses opening up the domestic legal order to international law as well as pertinent national and international case law. In terms of legal discourse it is characterized by a disciplinary combination of national and international legal scholarship, a comparative mindset, and a methodological orientation towards principles.The proponents of this approach set a stark accent on rights and the transformation of political and social realities but reject plebiscitary presidentialism and the centralization of power as a transformative strategy. Accordingly, the separation of powers and independent institutions are accorded great weight. ICCAL supports the regionally secured realization of the central promises of national constitutions, the embedding of the national legal orders in a larger context, and the transformation of society through law.

scholarly journals The Problem of Determining the System of Private Law and the Model Law «On Entrepreneurship»

2017 ◽  
Vol 4 (4) ◽  
pp. 13-19
Author(s):  
A A Bogustov
Keyword(s):  
Legal Regulation ◽  
Private Law ◽  
Legal Systems ◽  
Business Law ◽  
Legal Doctrine ◽  
Scientific Methods ◽  
Positive Law ◽  
Analysis And Synthesis ◽  
Model Law ◽  
Harmonization Of Law

The article examines the problems caused by the adoption of a Model law on entrepreneurship. The consequences of the possible inclusion this statute in national legal systems are analyzed. The common and private methods of scientific knowledge are put in a basis of research. At a spelling of work such general scientific methods of research, as supervision, the description, a method of the analysis and synthesis, an induction and deduction, and as methods of rather comparative-law and historical-law research were used. It is concluded that the Model Law on Entrepreneurship, which seeks to introduce the dualism of private law in the national legal systems of the post-Soviet countries, is not only unable to make legal regulation of economic activity more effective, but also to create new problems in this area. They are in the delineation of civil and business law, the impossibility of clearly establishing the boundaries of their actions, duplicating the legal material. In addition, there arise the question of the need to adopt certain model laws both in terms of their practical influence on the development of positive law and the improvement of legal doctrine. Inadequate scientific justification of the recommendations may lead to the rejection of their national legislators and the impracticability of the harmonization of law in the post-Soviet space.

Internet Jurisdiction: A Survey of Legal Scholarship Published in English and United States Case Law

2013 ◽  
Author(s):  
Joel Reidenberg ◽  
Jamela Debelak ◽  
Jordan Kovnot ◽  
Megan Bright ◽  
N. Cameron Russell ◽  
...  
Keyword(s):  
United States ◽  
Case Law ◽  
Legal Scholarship

The Domestication of the Convention on the Rights of Persons with Disabilities

2018 ◽  
Author(s):  
Lisa Waddington
Keyword(s):  
Direct Effect ◽  
Legal Status ◽  
Case Law ◽  
Legal Systems ◽  
Persons With Disabilities ◽  
International Treaty ◽  
Four Dimensions ◽  
Relevant Case ◽  
Similarities And Differences ◽  
Domestic Law

This chapter reflects on jurisdiction-specific approaches to the domestication of the Convention on the Rights of Persons with Disabilities (CRPD), considering in particular the domestic legal status of the CRPD and the relevance of that legal status for case law. The chapter explores four dimensions of the CRPD’s legal status: direct effect; indirect interpretative effect (where the CRPD influences the interpretation given to domestic law); use of the CRPD because of commitments to another international treaty; and absence of domestic legal status. With the exception of the first category, all dimensions can potentially present themselves in legal systems which tend towards the monist approach as well as in those which tend towards the dualist approach. The chapter discusses examples of relevant case law and reflects on similarities and differences emerging from a comparison of that case law.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

scholarly journals Flying with two wings or coming of age of copyrightisation? A historical and socio-legal analysis of copyright and business model developments in the Chinese music industry

2021 ◽  
pp. 205943642199846
Author(s):  
Zhen Troy Chen
Keyword(s):  
Business Models ◽  
Coming Of Age ◽  
Music Industry ◽  
Ecosystem Model ◽  
Global Market ◽  
Copyright Law ◽  
Legal Analysis ◽  
Business Studies ◽  
Legal Studies ◽  
Chinese Music

Following the third copyright law amendment in China, this paper offers a timely contribution to the debates on the shifting policy, governance and industry landscape of the Chinese music industry. This paper conducts a historical and socio-legal analysis of the development of Chinese copyright law with regards to the music industry and argues that the Chinese digital music industry has developed to a stage where three business models collide, namely the cultural adaptation model, the renegade model and the platform ecosystem model. This paper draws on interdisciplinary literature and discourses from legal studies, business studies and cultural studies and provide new evidence of the much neglected autonomous development of Chinese copyright law on top of foreign pressure and the desired reforms to further integrate into the global market economy.

Sign in / Sign up

Export Citation Format

Share Document