COMPARATIVE METHOD IN CONSTITUTIONAL LAW: BETWEEN PRESUMPTIONS OF SIMILARITIES AND DIFFERENCES

2019 ◽  
Vol 14 (5) ◽  
pp. 84-113
Author(s):  
ALEXANDRA A. TROITSKAYA
Keyword(s):  
Political Philosophy ◽  
Theoretical Model ◽  
Constitutional Law ◽  
Comparative Method ◽  
Comparative Law ◽  
Middle Level ◽  
Legal Research ◽  
Universal Principles ◽  
The World ◽  
Similarities And Differences

The two main approaches to the use of the comparative method in legal research, functional and cultural, have some "predetermined" considerations regarding the results that will (or should) be discovered by comparing various legal phenomena — should the emphasis be on similarities or differences between these phenomena. These considerations are based on the vision of, respectively, the universal or pluralistic nature of law of various societies, and in fact they are able to correct substantially the process of cognition of legal phenomena using the comparative method, adjusting it to the desired result. In the case of similarities, we can talk about artificially narrowing the circle of countries under investigation. In the case of differences, the isolation of systems and the uniqueness of their cultural characteristics are unreasonably exaggerated. The alternative assumptions presented in the theory of comparative law regarding the existence of universal principles of law or the fundamental uniqueness of each legal system require a critical rethinking of constitutional provisions and practice in comparative studies. The use of the comparative method in constitutional law is not reducible to the implementation of the ideas of political philosophy, and objective conclusions should not be replaced by predetermined normative guidelines. The similarities and differences revealed by the researcher of constitutional ideas, norms and practices can be considered as a result of comparison of independent value.Constitutional law is associated with a variety of substantial constructs existing in the world, not excluding, however, their intercommunication. Understanding these constructions requires attention to both the similarities and the differences in specific legal orders (as well as the reasons for their functioning in this, and not another form). The use of the comparative method in the absence of striving for predetermined results is simultaneously aimed at understanding the laws of development of constitutional institutions and maintaining the horizon of their diversity as an important component of this development. Each time, the researcher should distance himself from his prejudices regarding the similarities or differences between the institutes under study, rechecking whether the obtained results are really the results of applying the comparative method, and not the initial constructions.The logic of a comparative study corresponds to the construction of theories of "middle level", aimed at forming the theoretical model of a particular legal in-stitution, taking into account the practice of implementing this institution in specific states. The focus on middle-level theories within the framework of the comparative method allows one to go beyond the description of single systems, formulate conclusions at the level of generalization that ensure the comparability of the studied objects, and at the same time maintain an understanding of the diversity of constitutional models.

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.

1. Introduction

2021 ◽  
pp. 1-16
Author(s):  
Catherine E. De Vries ◽  
Sara B. Hobolt ◽  
Sven-Oliver Proksch ◽  
Jonathan B. Slapin
Keyword(s):  
Theoretical Model ◽  
National Level ◽  
Real Life ◽  
European Politics ◽  
Political Systems ◽  
The World ◽  
Similarities And Differences ◽  
Zoom In

The Introduction argues that to understand European politics there are two premises that need to be accepted. Firstly, the interplay between European and national-level politics must be taken seriously. The two cannot be studied independently. Secondly, a theoretical model of politics is necessary to help us to make assumptions about politics explicit and to ensure that the arguments used are logically consistent. Models help us to zoom in on a particular aspect of politics and apply our analysis to real-life examples. It also helps us to spot the similarities and differences across political systems and governments so we can make comparisons. The Introduction answers the question: why focus on Europe? One of the most obvious reasons is that Europe is the home to the largest number and variety of democratic governments anywhere in the world.

scholarly journals Triangular concept of legal pluralism in the establishment of consumer protection law

2018 ◽  
Vol 52 ◽  
pp. 00032
Author(s):  
Muldri Pudamo James Pasaribu ◽  
Ningrum Natasya Sirait
Keyword(s):  
Consumer Protection ◽  
Social Values ◽  
Legal Pluralism ◽  
Comparative Law ◽  
The State ◽  
New Paradigm ◽  
Legal Research ◽  
Community Needs ◽  
The World ◽  
The Common

The new paradigm in legal pluralism is closely related to the phenomenon of globalization. Laws of various levels move into limitless territories. There is a strong contact and adoption between international, transnational, national and local laws. Such circumstances make it impossible for mapping that a certain law (international, national, local) is separated from other law systems. This is a normative legal research with a comparative law approach. Law as a global phenomenon has the common values throughout the world, namely ethical moral values, social values and formal values of the state. The same values apply to the consumer protection law in Indonesia. Law Number 8 of 1999 on Consumer Protection (UUPK) in Indonesia was developed on the basis of legal pluralism. The data were analyzed using a Triangular Concept of Legal Pluralism developed by Werner Menski. In conclusion, UUPK is a form of legal pluralism. It is enacted based on the community needs, legitimized by the state and based on values and ethics.

ADMINISTRATIVE LAW: THE NEXT FRONTIER FOR COMPARATIVE LAW

2013 ◽  
Vol 62 (1) ◽  
pp. 55-95 ◽  
Author(s):  
Janina Boughey
Keyword(s):  
Twentieth Century ◽  
Constitutional Law ◽  
Comparative Law ◽  
Administrative Law ◽  
Public Law ◽  
Comparative Methods ◽  
The Past ◽  
The World ◽  
Recent Developments

AbstractIt is trite to observe that the past three decades have seen an ‘explosion’ in comparative law. Equally well-worn territory is the fact that constitutional law has been a particular beneficiary of the comparative trend, despite the fact that for much of the twentieth century comparative lawyers tended to avoid public law topics. However, one field of law that has been conspicuously absent from the boom in comparison, at least outside of Europe, is administrative law. This article analyses why the use of comparison has been so vastly different between the two areas of public law. It then surveys some recent developments in administrative law and points to a number of aspects of the field that would benefit from the wider use of comparative methods across the world.

The Tyranny of the Ideal

2018 ◽  
Author(s):  
Gerald Gaus
Keyword(s):  
Political Philosophy ◽  
Moral Life ◽  
Moral Inquiry ◽  
Open Society ◽  
The Past ◽  
Theories Of Justice ◽  
The World ◽  
Diverse Society ◽  
Just Society ◽  
The Ideal

This book lays out a vision for how we should theorize about justice in a diverse society. It shows how free and equal people, faced with intractable struggles and irreconcilable conflicts, might share a common moral life shaped by a just framework. The book argues that if we are to take diversity seriously and if moral inquiry is sincere about shaping the world, then the pursuit of idealized and perfect theories of justice—essentially, the entire production of theories of justice that has dominated political philosophy for the past forty years—needs to change. Drawing on recent work in social science and philosophy, the book points to an important paradox: only those in a heterogeneous society—with its various religious, moral, and political perspectives—have a reasonable hope of understanding what an ideally just society would be like. However, due to its very nature, this world could never be collectively devoted to any single ideal. The book defends the moral constitution of this pluralistic, open society, where the very clash and disagreement of ideals spurs all to better understand what their personal ideals of justice happen to be. Presenting an original framework for how we should think about morality, this book rigorously analyzes a theory of ideal justice more suitable for contemporary times.

Hubungan Kemendagri dan Kemendes dalam Tata Desa dan Administrasi Desa

2020 ◽  
Vol 3 (2) ◽  
pp. 81-97
Author(s):  
Sarip Sarip ◽  
Nur Rahman ◽  
Rohadi Rohadi
Keyword(s):  
Constitutional Law ◽  
Administrative Law ◽  
Point Of View ◽  
Legal Research ◽  
The Government ◽  
The Village ◽  
The Relationship

This article aims to explore the relationship between the Ministry of Home Affairs (Kemendagri) and the Ministry of Villages (Kemendes) from theconstitutional law and state administrative law point of view.The second concerns of this research is the disharmony and problem between the two ministries.From the constitutional law point of view, it turns out that what the Ministry of Home Affairs is doing, is closer to the object of its discussion. The method used in this research is normative legal research bycomparingthe constitutional law and state administrative law to obtain clarity regarding the Ministry of Home Affairs and Ministry of Village. The result shows that the Ministry of Village approached the science of state administrative law, namely to revive or give spirits to the village. Disharmonization began to exist since the inception of the Ministry of Village. The root of disharmony itself was the improper application of constitutional foundations in the formation of the Village Law. It would be better if the government reassess the constitutional foundation for the village.

The place of the plant world in the worldview system of transoxiana sufism in 16th century

2020 ◽  
Vol 6 (Extra-A) ◽  
pp. 157-161
Author(s):  
Lutfullo Eshonovich Ismoilov ◽  
Ramil Tagirovich Yuzmukhametov ◽  
Markhabo Tukhtasunovna Rajabova
Keyword(s):  
Comparative Method ◽  
Literary Analysis ◽  
Semantic Interpretation ◽  
16Th Century ◽  
Main Method ◽  
Holistic Understanding ◽  
The World ◽  
Lives Of The Saints

The article considers the topic of the Plant World in the Sufi writings of the 16th century Transoxiana, based on the material of manakibs, i. e. the so-called Lives of the Saints. The significance and relevance of the topic is due to the need to study the issues of semantic interpretation of the concept of plant and plant world in Sufi writings. Hence, the purpose of this article is to disclose the diverse meanings of the concept of the “World of Plants” contained in the 16th-century Transoxiana manakibs of such authors as Abdurakhman Jami, Abu-l Baka b. Khodzha Bakha-ud-din, Khusein Serakhsi. The main method in the study of this issue is the historical and comparative method, and the method of literary analysis, which allows you to create a holistic understanding of the symbolism of the Plant World in Sufi writings of Transoxiana of the 16th century.      

PERBANDINGAN CERITA “MAHLIGAI KELOYANG” DAN “KOBA MALIN DEMAN”

2017 ◽  
Vol 7 (1) ◽  
pp. 97
Author(s):  
Sri Sabakti
Keyword(s):  
Cultural Values ◽  
Research Method ◽  
Social Values ◽  
Comparative Method ◽  
Moral Values ◽  
Religious Values ◽  
Similarities And Differences ◽  
Local Cultures

Many folklores have same motives, but different in development adjust to the community that support the story. Differences in the development of the story in folklore shows the influences of local cultures to the storyteller. The differences cause various versions of folklore. It is also seen in folklore Mahligai Keloyang from Indragiri Hulu Regency and Koba Malin Deman from Rokan Hulu Regency. Therefore, this study aimed to find the similarities and the differences of the two folklores. The analysis of the similarities and differences of The legend Mahligai Keloyang and Koba Malin Deman applied dynamic structuralism theory, the theory which does not only emphasizes the intrinsic elements, but also pay attention to extrinsic elements in literature. Due to the fact that the study was also intended to compare two folklores, the research method used is descriptive comparative method. Based on the analysis of the structure of the story, it is found that there are similarities and differences in the stories Mahligai Keloyang and Koba Malin Deman which includes elements of the theme, the characters, the settings, and the plots. Based on the analysis of the cultural values in the folklores, some similarities and differences of religious values, moral values, and social values are found.AbstrakBanyak cerita rakyat yang mempunyai motif yang sama, tetapi berbeda pengembangannya disesuaikan dengan masyarakat pendukung cerita tersebut. Perbedaan pengembangan cerita dalam cerita rakyat memperlihatkan adanya pengaruh budaya lokal kepada si pencerita. Perbedaan itulah yang menimbulkan berbagai versi cerita rakyat. Hal ini juga terlihat dalam cerita rakyat “Mahligai Keloyang” dari Kabupaten Indragiri Hulu dan “Koba Malin Deman” dari Kabupaten Rokan Hulu. Oleh karena itu, penelitian ini bertujuan untuk menemukan persamaan dan perbedaan kedua cerita rakyat tersebut. Analisis terhadap persamaan dan perbedaan cerita legenda “Mahligai Keloyang” dan “Koba Malin Deman” dilakukan dengan menggunakan teori strukturalisme dinamik, yaitu teori yang tidak hanya menekankan pada unsur-unsur intrinsik, tetapi juga memerhatikan unsur ekstrinsik dalam karya sastra. Karena penelitian ini juga bermaksud membandingkan dua cerita rakyat, metode penelitian yang digunakan adalah metode deskriptif komparatif. Berdasarkan analisis struktur cerita didapati bahwa persamaan dan perbedaan yang terdapat dalam cerita “Mahligai Keloyang” dan “Koba Malin Deman” meliputi unsur tema, tokoh, latar, dan alur. Mealui analisis nilai budaya pada kedua cerita rakyat tersebut diperoleh persamaan dan perbedaan tentang nilai agama, nilai moral, dan nilai sosial.

The Indian Yearbook of Comparative Law 2016

2018 ◽  
Keyword(s):  
Environmental Law ◽  
Comparative Law ◽  
Public Law ◽  
Corporate Law ◽  
Legal Issues ◽  
Reading Materials ◽  
The World ◽  
Almost All ◽  
The Comparative Study ◽  
Day By Day

The contributions, by eminent scholars, included in The Indian Yearbook of Comparative Law 2016 discuss the discipline of comparative law in India and is of immense importance for legal scholarship around the globe. Unlike the West, that has covered almost all aspects of law from private to public law matters of national, transnational, and international relevance, not much work has been done in the discipline of Comparative law in India. In view of the countries and people of the world coming closer day by day, the need for the comparative study of law is becoming a sine qua non for participation in almost all transactions among people living across the globe. The attempt made with this volume will not only meet the much-awaited need of having reading materials on comparative law, but will also create a forum for legal scholars around the world to express their views on different aspects of law in comparative perspective. The issues covered her range from comparative legal methods to comparison in different aspects of law in different countries, as well as transnational and international bodies such as European Union and the various bodies of the United Nations. The issues covered include corporate law, constitutional law, human rights, environmental law, globalization, democracy, privatization, and several other contemporary legal issues.

International Agreements and U.S. Foreign Relations Law

2019 ◽  
pp. 155-171
Author(s):  
Jean Galbraith
Keyword(s):  
United States ◽  
Foreign Relations ◽  
Constitutional Law ◽  
Comparative Law ◽  
The United States ◽  
International Agreements ◽  
Constitutional History ◽  
Administrative Reforms ◽  
Administrative Efficiency ◽  
International Commitments

Over its constitutional history, the United States has developed multiple ways of joining, implementing, and terminating treaties and other international commitments. This chapter provides an overview of the law governing these pathways and considers the extent to which comparative law has influenced them or could do so in the future. Focusing in particular on the making of international commitments, the chapter describes how, over time, the United States came to develop alternatives to the process set out in the U.S. Constitution’s Treaty Clause, which requires the approval of two-thirds of the Senate. These alternatives arose partly from reasons of administrative efficiency and partly from presidential interest in making important international commitments in situations where two-thirds of the Senate would be unobtainable. These alternatives have had the effect of considerably increasing the president’s constitutional power to make international commitments. Nonetheless, considerable constraints remain on presidential power in this context, with some of these constraints stemming from constitutional law and others from statutory, administrative, and international law. With respect to comparative law, the chapter observes that U.S. practice historically has been largely but not entirely self-contained. Looking ahead, comparative practice is unlikely to affect U.S. constitutional law with respect to international agreements, but it might hold insights for legislative or administrative reforms.

Sign in / Sign up

Export Citation Format

Share Document