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.

Politics and Cinema

2018 ◽  
Author(s):  
Daniel Fairfax
Keyword(s):  
Subject Matter ◽  
Film Studies ◽  
Academic Discipline ◽  
Political Subject ◽  
The Relationship

The relationship between politics and the cinema is probably one of the most vexatious questions to have occupied the academic discipline of film studies, and thinking on the cinema more broadly. In their landmark 1969 text "Cinema/Ideology/Criticism," Cahiers du cinéma editors Jean-Louis Comolli and Jean Narboni declared that "every film is political," but this article will focus on those works that explicitly seek an engagement with political subject matter.

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 On the subject matter of International Relations

2017 ◽  
Vol 43 (5) ◽  
pp. 898-917 ◽  
Author(s):  
Mathias Albert ◽  
Barry Buzan
Keyword(s):  
International Relations ◽  
Subject Matter ◽  
Final Section ◽  
Academic Discipline ◽  
Social World ◽  
The Social ◽  
The Subject

AbstractThis article deals with the subject matter of International Relations as an academic discipline. It addresses the issue of whether and how one or many realms could legitimately be claimed as the discipline’s prime subject. It first raises a number of problems associated with both identifying the subject matter of IR and ‘labelling’ the discipline in relation to competing terms and disciplines, followed by a discussion on whether, and to what degree, IR takes its identity from a confluence of disciplinary traditions or from a distinct methodology. It then outlines two possibilities that would lead to identifying IR as a discipline defined by a specific realm in distinction to other disciplines: (1) the ‘international’ as a specificrealmof the social world, functionally differentiated from other realms; (2) IR as being about everything in the social world above a particularscale. The final section discusses the implications of these views for the study of International Relations.

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

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.

Comparative Law and Economic Analysis of Law

2019 ◽  
pp. 825-851 ◽  
Author(s):  
Florian Faust
Keyword(s):  
Economic Analysis ◽  
Subject Matter ◽  
Law And Economics ◽  
Comparative Law ◽  
Case Law ◽  
The Other ◽  
Economic Analysis Of Law ◽  
The Subject ◽  
The Relationship

This chapter discusses the relationship between comparative law and economic analysis of law. After providing an overview of the characteristics of the economic analysis of law, it explains how one of the two disciplines can operate as an ancillary discipline to the other; this has been termed ‘Comparative Law and Economics’. The next section describes how comparative law and economic analysis of law can be brought together by making one discipline the subject matter of the other. It suggests that the role of economic analysis of law may be greater in case law systems than in codified systems and that this role may vary according to the subject of legislation. The section concludes with considerations on the role comparative law plays and should play in different contexts. Finally, it is argued that comparative law and economics should not be considered a discipline on its own.

Medical Similes in Religious Discourse: The Case of Giovanni di San Gimignano OP (ca. 1260–ca. 1333)

1995 ◽  
Vol 8 (1) ◽  
pp. 103-131
Author(s):  
Joseph Ziegler
Keyword(s):  
Fourteenth Century ◽  
Thirteenth Century ◽  
Subject Matter ◽  
Academic Discipline ◽  
Religious Discourse ◽  
Therapeutic Art ◽  
Cultural Role

The ArgumentBy the beginning of the fourteenth century, medicine had acquired a cultural role in addition to its traditional functions as a therapeutic art. Medical subject matter infiltrated the religious discourse via the new thirteenth-century encyclopedic literature. Preachers came to employ in their moral analogies a wider range of medical topics, using sophisticated medical examples and citations attributed to recognized medical authorities. These developments coincided with the growing prestige of medicine as an academic discipline.

The Concept, the Idea, and The Morality of Law an Essay in Jurisprudence

1966 ◽  
Vol 24 (1) ◽  
pp. 106-128
Author(s):  
B. E. King
Keyword(s):  
Subject Matter ◽  
Constitutional Law ◽  
Academic Discipline ◽  
Making Sense ◽  
The Law ◽  
Opening Paragraph

IThe title of this essay refers to the titles of three recent works by Professors of Jurisprudence. It is proposed to use these works to illustrate the problem of Jurisprudence in discovering its own appropriate concepts and making sense of its literature.Jurisprudence, it may be assumed, is what Professors of Jurisprudence write. They write it presumably for the edification of students in the Faculties to which they are attached, to help them to see the coherence and the relevance of the more specialised studies in which they are engaged. These Faculties are Faculties of Law. But what is law? The diverse strange and even paradoxical ways in which this question has been answered by serious thinkers, says Professor Hart in his opening paragraph, constitute “a situation not paralleled in any other subject systematically studied as a separate academic discipline.” If we say, then, that Professors of Jurisprudence write about law, our statement may fail to convey any exact or agreed information. Even if it may correctly be assumed that Professors of Jurisprudence use the word ‘law’ to refer to their basic subject-matter, it cannot be assumed that the precise identity of this subject-matter is universally or even generally agreed. Consider some of the identifications of law quoted by Professor Hart—‘ What officials do about disputes is… the law itself’; ‘The prophecies of what the courts will do… are what I mean by the law’; Statutes are ‘sources of Law… not parts of the Law itself’; ‘Constitutional law is positive morality merely’; ‘One shall not steal; if somebody steals he shall be punished… If at all existent, the first norm is contained in the second norm which is the only genuine norm… Law is the primary norm which stipulates the sanction.’

Comparative Law

2019 ◽  
Author(s):  
Uwe Kischel
Keyword(s):  
Islamic Law ◽  
Comparative Law ◽  
Customary Law ◽  
Jewish Law ◽  
Legal Systems ◽  
European Union Law ◽  
Legal Scholarship ◽  
Lex Mercatoria ◽  
Legal Contexts ◽  
General Aspects

This translation of Rechtsvergleichung offers a critical introduction to the central tenets of comparative legal scholarship. The first part of the book is dedicated to general aspects of comparative law. The controversial question of methods, in particular, is addressed by explaining and discussing different approaches, and by developing a contextual approach that seeks to engage with real-world issues and give a practitioner’s angle on contemporary comparative legal scholarship. The second part of the book offers a detailed treatment of the major legal contexts across the globe, including common law, civil law systems (based on Germany and France as well as case studies of Eastern Europe, Scandinavia, and Latin America, among others), the African context (with an emphasis on customary law), Asian jurisdictions, Islamic law and law in Islamic countries (plus a brief treatment of Jewish law and canon law), and transnational contexts (public international law, European Union law, and lex mercatoria). The book offers a coherent treatment of global legal systems that aims not only to describe their varying norms and legal institutions but to propose a better way of seeking to understand how the overall context of legal systems influences legal thinking and legal practice.

Law in Theory, Law in Practice

2019 ◽  
Vol 45 (1) ◽  
pp. 28-49
Author(s):  
Danna Agmon
Keyword(s):  
Early Modern ◽  
South India ◽  
Comparative Law ◽  
Historical Ethnography ◽  
Legal Scholarship ◽  
Intellectual Networks ◽  
Indian Law

Letters written by early modern missionaries played an important role in the development of global intellectual networks and inquiry into religion, language, cartography, and science. But the historical ethnography of law has not recognized the role that Jesuits played in creating the field of comparative law. This article examines the writings on law in India by the French Jesuit Jean-Venant Bouchet, who was an important source for Enlightenment philosophes and later Orientalists. It considers Bouchet’s systemic accounts of Indian law alongside his more ethnographic description of his legal encounters in South India, and argues that the practice of conversion and experiences in local legal fora determined and shaped Bouchet’s interpretation of Indian law. In other words, legal scholarship was produced in spiritual, religious, and political contexts, and cannot be abstracted from them.

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