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

scholarly journals Network Analysis and Legal Scholarship

2017 ◽  
Vol 18 (3) ◽  
pp. 695-700
Author(s):  
Niels Petersen ◽  
Emanuel V. Towfigh
Keyword(s):  
Network Analysis ◽  
Special Section ◽  
German Law ◽  
Comparative Law ◽  
Constitutional Court ◽  
Legal Scholarship ◽  
Network Analyses ◽  
European Court ◽  
Detailed Assessment

In their contribution in this issue Mattias Derlén and Johan Lindholm use social network analysis to show that the European Court of Justice is a precedent-driven constitutional court that is comparable to the US Supreme Court with regard to the citation of precedents. The article and its use of network analysis as a method provoked a lively debate on the editorial board of theGerman Law Journalabout comparative law theory and methods generally and the place of empirical (including network) analyses in the comparative law discipline. For this reason, the editorial board commissioned this “special section” of contributions dedicated broadly to approaches to comparative law. In his essay in this section, for example, Jens Frankenreiter offers a detailed assessment of Derlén's and Lindholm's analysis. In this piece, we take a broader perspective and look at the utility and the limits of network analysis for legal scholarship generally.

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.

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.

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.

Part 3 Institutional Control of Constitutionalism, 3.3 The Turkish Constitutional Court as Defender of the Raison d’Etat ?

2012 ◽  
Author(s):  
Can Osman
Keyword(s):  
Power Relations ◽  
Comparative Law ◽  
Democratic Legitimacy ◽  
Constitutional Court ◽  
Institutional Control ◽  
Democratic Culture ◽  
Islamic World ◽  
Special Place ◽  
Raison D’État ◽  
Turkish Constitution

This chapter examines the power relations creating the Turkish Constitution and the constitutional court, the structure of this court, and judicial precedents it has set. It addresses questions such as: Is it sufficient to base the constitution simply on “power relations,” or if it is also necessary to ensure its democratic legitimacy? Will the constitution and the structure of Turkey's constitutional judiciary, with its special place in the Islamic world regarding societal pluralism and democratic culture, be able to provide a positive comparative law paradigm for countries trying to democratize?

Competency to Stand Trial in Italy

2018 ◽  
Author(s):  
Alberto Cadoppi ◽  
Mattia Celva
Keyword(s):  
Criminal Procedure ◽  
Competency To Stand Trial ◽  
Constitutional Court ◽  
Legal Scholarship ◽  
Meaningful Participation ◽  
Definition Of

This chapter assesses competency to stand trial in Italian Criminal Procedure, using a two-pronged analysis. First, there is analysis of the relevant provisions of the Italian Code of Criminal Procedure (CCP). Pursuant to these provisions, the trial must be suspended in case the defendant is not capable of meaningful participation. The CCP also regulates various aspects connected to this incapacity. In particular, it sets forth the grounds on which the suspension must be granted and provides for the means through which the incompetency should be ascertained, if not immediately apparent. The picture painted by the Code is complex and many of these provisions have been challenged as unconstitutional in front of the Constitutional Court, with different results. The chapter focuses on such problems, in order to illustrate the approach of the Constitutional Court, as well as examining the solutions proposed by legal scholarship, including the definition of incapacity.

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.

Das Grundrecht auf sexuelle Selbstbestimmung

2021 ◽  
Author(s):  
Dana-Sophia Valentiner
Keyword(s):  
Personal Autonomy ◽  
Sexual Consent ◽  
Constitutional Court ◽  
Legal Concept ◽  
Legal Scholarship ◽  
Sexual Autonomy ◽  
Sexuelle Selbstbestimmung ◽  
Federal Constitutional ◽  
The Right ◽  
German Constitutional Law

The thesis deals with the right to sexual autonomy in German constitutional law. The author shows that the approaches adopted by the Federal Constitutional Court and legal scholarship do not adequately reflect social change in the area of sexualities and develops a legal concept of the right that emphasizes on personal autonomy and sexual consent.

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