Comparative law is necessary in the modern era in which legal systems absorb ideas and elements from other legal systems and customary legal classifications are altered. Comparative law is closely intertwined with language because the research of different legal systems presupposes the study of legal texts written in different languages. Even if translation exists, a totally crucial issue arises: can the legal essence of the case law of a country be interpreted appropriately in any language but the original? (...) The link between law and language constitutes an absolutely essential relation, since language – through translation – is often the only way of accessing foreign law of foreign countries with different languages. So, the aforementioned relationship as well as its results in case law will be the main topic of this article. First of all, the use of language is of outmost importance to any legal system, as it serves as the means of enforcing written legal rules and contributes to their dissemination, codification and evolution. Both law and language are cultural phenomena and this is why they must be studied taking into account the temporal and social circumstances. Living in the era of multicultural societies and immigration, the need of not just translating but rather transferring the legal essence of the jurisprudence among the different countries with different cultures give prominence to the essential link between comparative law and language systems. Studying case law is regarded as a possibility to redirect judges and lawyers’ attention to the fact that the interpretation of the legal judgement is the cornerstone of a whole legal system of another country. The dynamic relationship of law and language dictates the result of the translation and interpretation of the case law of a specific country in relation to the case law of another country. Thus, comparative law comes out to serve as the guardian of the legal essence in order to transfer the legal point of the judge among different societies with different languages. (shrink)

The enterprise of comparative law is familiar, yet its conceptual whereabouts remain somewhat obscure. Comparing Law: Comparative Law as Reconstruction of Collective Commitments reconstructs comparative law scholarship into a systematic account of comparative law as an autonomous academic discipline. The point of that discipline is neither to harmonize world law, nor to emphasize its cultural diversity, but rather to understand each legal system on its own terms. As the proposed reconstruction exercise involves bridging comparative law (...) and contemporary legal theory, it shows how comparative law and legal theory both stand to benefit from being exposed to each other. At a time when many courses are adding a transnational perspective, Valcke offers a more theoretical, broadened, and refreshed view of comparative law. (shrink)

Collection of papers delivered at a symposium held in Lausanne, 10-11 September 2009.".

The essay attempts to shed light on some examples of the relationship between prescriptive and descriptive, norms and facts in comparative law. In particular, it examines: the methodological choices (in the alternative between normative paradigms and open pluralism), the ontology of the law (in the alternative between abstract dogmatism and experiential realism), the act of dividing the global spatiality into different units of legal meaning (in the alternative between neutral observation and constructive projectuality). Capturing the tension between doubt, displacement, (...) rupture (on the one side) and recovery, revision, creative renewal (on the other side) that has marked the genealogy of an “undisciplined discipline”, the Author proposes to assign it for the future a space of _inter-esse_, an interstitial threshold in which every binary opposition can be dynamically resolved. (shrink)

While the role of comparative law in the courts was previously only an exception, foreign sources are now increasingly becoming a source of law in regular use in supreme and constitutional courts. There is considerable variation between the practices of courts and the role of comparative law, and methods remain controversial. In the US, the issue has been one of intense public debate and it is still one of the major dividing issues in the discussion about the role (...) of the courts. Contributing to the existing discussion of the use of comparative law in the courts, this book provides an inclusive, coherent, and practical analysis of the relevant law and jurisprudence in comparative law in the courts. It examines the consequences for court procedures and the form of judgments, as well as how foreign sources are drawn upon in private international law, European law, administrative law, and constitutional law as well as before general courts. The book also includes case studies of comparative law used in particular spheres of the law, such as tort law and consumer law. Written by practising judges and lawyers as well as leading academics, this book serves as a central reference point concerning the role of comparative law before the courts. (shrink)

This article examines various models of legal interpretation and their implications for comparative law, drawing inspiration from Rodolfo Sacco’s early career theories. It contrasts the Tarskian Correspondence Model, which seeks objective reality in legal texts, with the Symphonic Model, which interprets legal language as a harmonious interplay of elements. The Tarskian model reflects classical legal thought’s search for fixed meanings, while the Symphonic model aligns with contemporary legal practice’s nuanced understanding. Further, the article explores Heraclitean Realism, acknowledging the fluidity (...) of language and meaning, and the Provocative Tapestry Model, which introduces paradox and tension in legal interpretation. These models are likened to narrative genres, offering varied approaches to understanding legal discourse: the Tarskian model as a detective novel, the Symphonic model as a comedy, the Living Tapestry model as a melodrama, and the Provocative Tapestry model as a tragedy. The article argues that these models of legal interpretation do not inherently carry a political essence; the political stance emerges from the choices of interpreters. It emphasizes the need for human agency in the application of legal norms and the responsibility of legal professionals to actively engage in the interpretation process. Comparative law is discussed as a discipline that benefits from understanding these diverse interpretative models, as it seeks to analyze legal systems across jurisdictions. The article concludes that while narrative styles in legal interpretation have political histories, they are not bound to specific ideologies, highlighting the versatility and subjectivity in the field of legal interpretation. (shrink)

For various reasons, that will be recalled and analysed throughout this paper, interdisciplinarity has become the keyword for any debate on legal education reform. However, what is meant by interdisciplinarity and how it should be achieved is open for discussion. Paradigms of “scientificity” of the law vary dramatically among legal cultures. Whereas in the US the advent of a more ‘substantial’ legal thought after the New Deal went hand in hand with the rise of the interdisciplinary paradigm, in Europe the (...) traditional assumption of law’s autonomy has repeatedly been challenged, eroded and adapted, but it still represents the bulwark of the orthodox approach to law and legal scholarship. In the Continent, mainstream legal scholarship does not take as its object the social reality, but only the gamut of rules recognized as binding norms. Coherent with this approach is a model of legal education built around certain axioms, such as the statist and nationalist attitude, the extreme compartmentalization among the various branches of law, and the blindness to its surroundings. Comparative law is one of the few disciplines that provide a different role model for a legal scholar who is apt to confront the challenges of complex societies. Keeping at a reasonable distance the authority paradigm, embodying the spirit of enquiry and cherishing the values of pluralism (both in terms of legal pluralism and cognitive openness), comparativists may give specific content to the paradigm of the jurist as a social engineer. Comparative law may therefore offer an invaluable contribution to the debate on legal education reform. (shrink)

Gifts: A Study in Comparative Law is the first broad-based study of the law governing the giving and revocation of gifts ever attempted. First, gift-giving is everywhere governed by social and customary norms before it encounters the law. Second, the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides an optimal lens through which to examine how different legal systems confront social practice. The law of gifts (...) is well-developed both in the civil and the common laws. Richard Hyland's study provides an excellent view of the ways in which different civil and common law jurisdictions confront common issues. The legal systems discussed include principally, in the common law, those of Great Britain, the United States, and India, and, in the civil law, the private law systems of Belgium and France, Germany, Italy, and Spain. Hyland also serves a critique of the dominant method in the field, which is a form of functionalism based on what is called the praesumptio similitudinis, namely the axiom that, once legal doctrine is stripped away, developed legal systems tend to reach similar practical results. His study demonstrates, to the contrary, that legal systems actually differ, not only in their approach and conceptual structure, but just as much in the results. (shrink)

Several European countries are approving legislative reforms moving to a presumed consent system in order to increase organ donation rates. Nevertheless, irrespective of the consent system in force, family's decisional capacity probably causes a greater impact on such rates. In this contribution we have developed a systematic methodology in order to analyse and compare European organ procurement laws, and we clarify the weight given by each European law to relatives' decisional capacity over individual's preferences (expressed or not while alive) regarding (...) the destination of his or her organs after death. In this sense, the results constitute the first comprehensive and comparative legislative mapping on European transplantation laws. (shrink)

Legal texts are in the focus of both lawyers and translators. This paper discusses the binary opposition of these two views especially in the light of contract law. There is one crucial epistemic difference between the point of view of the translator and the lawyer when it comes to the interpretation of legal texts. In the translator’s view legal text is traditionally conceived as static as to its nature; something that already exists in the form of text. Traditionally, the translator (...) is interested in the text itself as it was written down in a document, i.e. the translator needs to go back to the frozen moment when a legal document was constructed and finalised. The lawyer, in contrast, is very much interested not only in the text of the legal document but also in the contextual surroundings of the text. In fact, for legal interpretation, sometimes the key-elements for the interpretation come from outside of the text itself. This paper concludes that legal translation is in many cases closer to transcreation than it is to traditionally understood translation. (shrink)

This article highlights certain aspects of Rodolfo Sacco’s theoretical work on comparative law. Rather than offering an exhaustive discussion, it outlines key points in his intellectual journey to help the reader understand how certain themes gained prominence in his work. An outstanding figure in the comparative law community since the 1970s, he remained active until the end of his life, well into the twenty-first century. Through his many contributions to the field, Sacco took comparative law research in (...) new directions. He developed a more nuanced and complex analysis of the tasks of the comparative lawyer, elaborating an approach to comparison that does justice to the multiple components of all legal systems (“legal formants”) and their dynamics. We owe him a fine study of the silent, implicit dimensions of law that have a major impact on its application (“cryptotypes”), and a reflection on the relationship between law and language that shows how comparative law is deeply implicated in the process of translation. (shrink)

Making use as a guideline of a self-authored manuscript—dated February 2000—where the “_Maestro_” reveals himself, this essay explores the academic life and the scholarly achievements of Rodolfo Sacco, the Italian master of comparative law, who just recently passed away. His intellectual endeavor is described throughout the lenses of a common thread that underlies his entire scholarly output: it his ability to illuminate the dark places of law, finding it where no one had sought it before. This is the essence (...) of his original contribution to the understanding of the legal landscape’s dynamics and it is the core of his cultural legacy, not only to comparative lawyers, but also to the community of the jurists at large. (shrink)

Intervencions a càrrec de Ronald J. Allen i Susan Haack sobre diferents idees del pensament de Michele Taruffo.

"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

This article explores the kind of detachment needed to conduct comparative law scholarship and teaching, as well as implement its application to practical problems. The full and fair comparison of the law requires a cosmopolitan view which embodies some degree of detachment from adherence to the laws of one's ``home". The Enlightenment efforts to build a science of comparative law to achieve this detachment failed. Modern inheritors of the Enlightenment approach have similarly failed. In a series of articles, (...) I argue that we must return to the ancient effort to achieve a new ``objectivity" through Hellenic deliberation, Hellenistic detachment, Roman rhetoric, Christian dialectic and the canonics of the empire's codification process. This article focuses upon the Hellenistic contributions to achievement of cosmopolitan detachment. The Cynic, Skeptic Stoic and Epicurean doctrines and ethical education offer an alternative route to the detachment necessary for a comparative law. (shrink)

In Mengzi 6A4, Gaozi states that “yì 義 (propriety, rightness) is external, not internal.” In 6A5, Meng Jizi says of yì that “...it is on the external, not from the internal.” Their defenses are met with Mengzi’s resistance. What does he perceive and resist in these statements? Focusing on several key passages, I compare six promising interpretations. 6A4 and a relevant part of 2A2 can be rendered comparably sensible under each of the six. However, what Gaozi says in 6A1 clearly (...) is evidence to Mengzi that, of the six views, Gaozi holds three although he does not convey them in his statement. As for Meng Jiz’s defense of his statement, Meng Jizi cites a special occasion where one is required to act one way even though one would feel a different way. Mengzi’s response has been traditionally interpreted as boiling down to a dissenting opinion about empirical psychology, that the agent on that special occasion would in fact feel the same way as they ought to act. But on a more charitable reading, the point Mengzi makes is conceptual: Though the satisfaction of yì may not require that the feeling and the act align perfectly in this case, cases where the alignment obtains are conceptually prior. This not only refutes Meng Jizi’s statement but also enables a more elegant explanation of why the Mengzi rightly has no record of Mengzi affirming that yì is internal. I conclude that 6A5 itself uniquely favors one interpretation, as far as Meng Jizi’s position is concerned: How one feels is irrelevant to whether one satisfies yì. (shrink)

Women are drastically underrepresented in science, technology, engineering, and mathematics and this underrepresentation has been linked to gender stereotypes and ability related beliefs. One way to remedy this may be to challenge male bias gender stereotypes around STEM by cultivating equitable beliefs that both female and male can excel in STEM. The present study implemented a growth mindset intervention to promote children’s incremental ability beliefs and investigate the relation between the intervention and children’s gender stereotypes in an informal science learning (...) site. Participants were visitors to a science museum who took part in an interactive space science show. Participants who were exposed to a growth mindset intervention, compared to the participants in the control condition, reported significantly less gender stereotyping around STEM by reporting equitably in the stereotype awareness measure. Relatedly, participants in the control condition reported male bias gender stereotype in the stereotype awareness measure. Further, children between 5 and 8-years-old reported greater male bias stereotypes awareness and stereotype flexibility in space science compared to children between 9 and 12-years-old. Lastly, children demonstrated in-group bias in STEM ability. Male participants reported gender bias favoring males’ ability in stereotype flexibility and awareness measures, while female participants reported bias toward females’ ability in stereotype flexibility and awareness measures. These findings document the importance of a growth mindset intervention in buffering against STEM gender stereotyping amongst children, as well as the significant role a growth mindset intervention can play within an informal science learning site. (shrink)

This paper traces the history of remoteness in contract law, namely the legal formants (in Rodolfo Sacco’s terms) constraining the availability of contract damages in various legal systems. Our journey takes us through different times, continents and cultures, from the eighteenth century to the twenty–first century, across the law of France, United States, England and Wales, India and Australia, among other jurisdictions. While it might seem that civilian and common law traditions have very different morphological legal forms, once a closer (...) historical, cultural, and anthropological gaze is turned upon the legal formants involved, it can be seen that remoteness discloses a shared concern which may be common to many human societies and cultures. In other words, as a matter of social experience, humans who enter into transactions generally realise that it is impossible to know the future, or to know what all outcomes of the transaction will be. Consequently, it is recognised that it would be unfair and unjust to hold a defendant liable for all outcomes, and as our journey will show, legal systems seek guidance from other legal systems in their efforts to deal with this problem. (shrink)

Resumen: Aunque la funcionalidad y versatilidad de la perspectiva comparada es una cuestión prioritaria para una total optimización del análisis de las migraciones internacionales. No toda perspectiva o metodología de investigación comparada puede ser considerada comparación jurídica. Este artículo no pretende ser ni recoger un compendio de virtudes y defectos atribuibles a la investigación jurídica comparada en el ámbito concreto de la inmigración. Más bien, revisando algunas publicaciones, se propone reconsiderar críticamente cual es el rol de la comparación jurídica en (...) el estudio interdisciplinar de la inmigración. A tal efecto, a modo ilustrativo se han valorado los puntos débiles y fuertes de algunos ejemplos de análisis comparados sobre la inmigración y la integración a nivel europeo.Abstract: Currently, despite the functionality and versatility of the comparative approach are priority questions for the full optimization of the international immigration framework’s analysis. All kinds of comparative research method could not be peacefully considered stricto sensu a comparative law. This article does not pretend to be a compendium of attributable virtues and defects to legal comparative research on the specific field of migration. Rather, reviewing some publications, I propose to reconsider critically what is or should be the role of comparative law in the interdisciplinary study of migration. Consequently, the strengths and weaknesses of some comparative analysis regarding immigrant integration at European level have been illustratively valued. (shrink)

Since the Supreme Court of New Jersey decided the Quinlan case a quarter of a century ago, three American Supreme Court decisions and a host of state appellate decisions have addressed end-of-life issues. These decisions, as well as legislation addressing the same issues, have prompted a torrent of law journal articles analyzing every aspect of end-of-life law. In recent years, moreover, a number of law review articles, many published in this journal, have also specifically addressed legal issues raised by palliative (...) care. Much less is known in the United States, however, as to how other countries address these issues. Reflection on the experience and analysis of other nations may give Americans a better understanding of their own experience, as well as suggest improvements to their present way of dealing with the difficult problems in this area.This article offers a conceptual and comparative analysis of major legal issues relating to end-of-life treatment and to the treatment of pain in a number of countries. In particular, it focuses on the law of Australia, Canada, the United Kingdom, Poland, France, the Netherlands, Germany, and Japan. (shrink)

On one view of ethical development, someone not yet virtuous can reliably progress by engaging in what meaningfully resembles virtuous conduct. However, if the well-intended conduct is psychologically demanding, one's character, precisely because one is not yet virtuous, may worsen rather than improve. This risk of degradation casts doubt on the developmental view. I counter the doubt through one interpretation and one application of the Mengzi. In passage 2A2, invoking the image of a farmer who “helped” the crop grow by (...) pulling the sprouts, MENG Ke cautions, “do not help it grow.” I defend a novel interpretation: do not advance with a naïve negligence about your psycho-physiological constitution. I also show how to advance with realistic care by pointing out an overlooked application of a much-discussed cultivation technique illustrated in Mengzi 1A7: ethical reflection can conciliate one with one’s ongoing or past advanced action, lowering the action’s risk of degradation. (shrink)

A key question in comparative law is why different legal systems provide different legal solutions for the same problem. To answer this question, we use novel comparative evidence on how the conflict between the dispossessed original owner and the bona fide purchaser of a stolen good is resolved in different countries. This is the most primitive manifestation of a fundamental legal choice: the balance between the protection of the owner’s property rights and the enhancement of the buyer’s reliance (...) on contracts. We test four prominent theories: functional equivalence, legal origins, political economics and cultural economics. We find that a culture of self-reliance is the key determinant of comparative variation in this area of law. (shrink)

The Grammar of Criminal Law is a 3-volume work that addresses the field of international and comparative criminal law, with its primary focus on the issues of international concern, ranging from genocide, to domestic efforts to combat terrorism, to torture, and to other international crimes. The first volume is devoted to foundational issues. The Grammar of Criminal Law is unique in its systematic emphasis on the relationship between language and legal theory; there is no comparable comparative study of (...) legal language. Written in the spirit of Fletcher's classic Rethinking Criminal Law, this work is essential reading in the field of international and comparative law. (shrink)

In the space of two decades, social rights have emerged from the shadows and margins of human rights jurisprudence. The authors in this book provide a critical analysis of almost two thousand judgments and decisions from twenty-nine national and international jurisdictions. The breadth of the decisions is vast, from the resettlement of evictees to the regulation of private medical plans to the development of state programs to address poverty and illiteracy. The jurisprudence not only implicates our understanding of economic, social, (...) and cultural rights, but also challenges the philosophical debates that question whether these rights can and should be justiciable. (shrink)

The nature and relationships between Law and State -- Law making, its sources and the role of State -- Law, legal systems, and legal families : synchronizing in the Globalized World -- Fundamental legal concepts : the distinctive features of law -- Constitutional law : the Supreme Law of the land -- Criminal law : State's authority in defining and penalizing crimes -- Torts : making people responsible & civilized -- Civil law and proceedings : public and private law -- (...) Law for doing business : the role of state and market -- Justice : the goal of political society -- The Rule of Law : foundation of modern political society -- Human rights and the state : grounds for personal and institutional relationships -- International trade : the centerpiece of growth and international relations -- Law, Globalization and international relations. (shrink)

Sexual and reproductive health is a challenge worldwide, and much progress is needed to reach the relevant UN Sustainable Development Goals. This paper presents cross-sectional data collected in Sierra Leone on sexual and gender-based violence, family planning, child, early and forced marriage, and female genital mutilation using an innovative method of measurement: situational judgment tests, as a subset of questions within a larger survey tool. For the SJTs, respondents saw hypothetical scenarios on these themes and had to indicate how they (...) would react. The objective is to give an impression of beliefs and norms on specific behaviors, which provide insights for social and behavior change interventions. Data was collected by enumerators traveling to villages randomly selected in six districts of the country. The sample is composed of 566 respondents. Results show that FGM in particular seem to be a priority topic, in comparison to the other topics for which the norms seem to be stronger against those practices. Age differences emerged and suggest priority groups to be targeted. In terms of validity of the measurement methods, situational judgment test answers correlated positively with other items in the survey, but the magnitude of the association is often small, and sometimes not significant. Thus, more studies are needed to further explore the validity of this measure by comparing against a reference value. Using SJTs could complement other data collection tools to perform community assessment, and orient the direction of the program in its planning phase. (shrink)

This paper argues the thesis that a particular style of reasoning, qualitative comparative reasoning (QCR), plays a role in at least three areas of legal reasoning that are central in AI and law research, namely legal theory construction, case-based reasoning in the form of case comparison, and legal proof. The paper gives an informal exposition of one particular way to deal with QCR, based on the author’s previous work on reason-based logic (RBL). Then it contains a substantially adapted formalisation (...) of RBL, to make RBL suitable for dealing with QCR. The paper concludes with a brief discussion of related work. (shrink)

The doctrine of proportionality has received sustained attention from comparative constitutional scholars. Yet it is an area where courts, and scholars, have made limited use of empirical or inter-disciplinary approaches to constitutional comparison. The article calls for a change in this practice as part of a broader call for greater dialogue between scholars and practitioners of conceptual and more empirical forms of constitutional comparison.

This paper presents new constructions of models of Hume's Principle and Basic Law V with restricted amounts of comprehension. The techniques used in these constructions are drawn from hyperarithmetic theory and the model theory of fields, and formalizing these techniques within various subsystems of second-order Peano arithmetic allows one to put upper and lower bounds on the interpretability strength of these theories and hence to compare these theories to the canonical subsystems of second-order arithmetic. The main results of this paper (...) are: (i) there is a consistent extension of the hyperarithmetic fragment of Basic Law V which interprets the hyperarithmetic fragment of second-order Peano arithmetic, and (ii) the hyperarithmetic fragment of Hume's Principle does not interpret the hyperarithmetic fragment of second-order Peano arithmetic, so that in this specific sense there is no predicative version of Frege's Theorem. (shrink)

Comparative Religious Law provides for the first time a study of the regulatory instruments of Jewish, Christian and Muslim religious organisations in Britain in light of their historical religious laws. Norman Doe questions assumptions about the pervasiveness, character and scope of religious laws, from the view that they are not or should not be recognised by civil law, to the idea that there may be a fundamental incompatibility between religious and civil law. It proposes that religious laws pervade society, (...) are recognised by civil law, have both a religious and temporal character, and regulate wide areas of believers' lives. Subjects include sources of law, faith leaders, governance, worship and education, rites of passage, divorce and children, and religion-State relations. A Charter of 'the principles of religious law' common to all three Abrahamic faiths is proposed, to stimulate greater mutual understanding between religion and society and between the three faiths themselves. (shrink)