A New Introduction to Comparative Law

A New Introduction to Comparative Law

by Jaakko Husa

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Product Details

ISBN-13: 9781849467964
Publisher: Hart Publishing
Publication date: 06/18/2015
Pages: 298
Product dimensions: 6.14(w) x 9.21(h) x 0.70(d)

About the Author

Jaakko Husa is Professor of Comparative Law and Constitutional Law at the University of Lapland (Finland)

Table of Contents

Acknowledgements vii

1 Introduction 1

I About this Book 2

II Legal Culture in Focus 3

III Structure of the Book 5

2 Comparative Law as a Discipline?A Short History 6

I History of Comparative Law in a Nutshell 6

A Birth of Modern Comparative Law 8

II Comparative Law in the Twenty-first Century 9

A Legal Systematics and Comparison: Private Law v Public Law 12

3 Comparative Law?Definitions and Distinctions 16

I Challenge of Further Definition 17

A Crossing the Borders 17

II Comparative Study of Law 19

A Universalism? 20

B Research Results and their Use 22

C Restrictions on Use 23

III The Theory of Comparative Law 24

A Macro-comparison 25

B Theory and Methodology 26

C Special Features 27

4 Comparative Law?One of the Legal Disciplines 29

I Part of a Larger Field of Knowledge 29

II A Member of the Family of Legal Studies 30

A Comparative Law and the Normative Approach 30

B Comparative Law and Roots of Law 34

C Comparative Law and Sociological Dimensions of Law 37

D Theoretical and Philosophical Dimensions of Comparative Law 42

E Linguistic and Economic Dimensions?Comparative Law Reloaded 46

III Comparison and Fields of Law 48

A Private International Law 49

B Public International Law 52

IV Difficulty of Demarcation 55

5 Why Compare? 58

I Starting Points?Creating Added Value 59

II Comparison as a Cross-border Form of Knowledge Acquisition 60

A About Proportions 62

B Different Needs 65

III Comparison as Thinking Outside the Box 66

A Away from Ethnocentrism 68

IV Basic Knowledge-interests 70

V Integrativity and Contradictivity 71

A The Historical Dimension 72

B Recent Integration in Europe 75

C New or Old Ius Commune? 76

D The International Dimension and Knowledge-interest of Comparison 81

E Other Dimensions 85

VI Practical v Theoretical Approach 86

A Practicality 86

B Theoreticalness 90

VII Pedagogical?Comparison in Teaching and Learning Law 91

6 Basic Strategies in Comparison 96

I Introduction 96

A Method?Methodology 97

B Methodological Choices of a Technical Nature 100

II Scope?From Macro to Micro 100

A Comparison?Macro to Micro 100

B New or Old?Macro to Micro 102

III In Time and Space?The Time Dimension 104

A Transplants and Loans 105

IV Quantity 108

V The Diversity of Legal Systems?Transnationality 110

A Transnational Law 111

VI Cultural Dimensions and their Overlapping 114

A Too Many Sources? 115

VII Methodological Choices of Theoretical Nature 117

VIII Functionality?Functional Comparative Law 118

A The Same Idea as a Starting Point 119

B Getting Rid of System-specific Labels 122

C Problems and Transformation of the Functional Approach 123

D Translating Legal Language and Functional Comparison 125

IX Structural Dimension 127

A Structural Elements 127

B Structural Comparability 129

C Dynamic Approach 132

X Systematic Approach 133

XI Critical Study Approaches?Two Examples 135

A Deep level Comparison and Mentality 135

B Postcolonial Methodology?Orientalism 138

XII Depth of the Study?Decisiveness of the Knowledge-interest 140

XIII Research Ethics 143

A Honesty in research 144

XIV Comparative Methodology?Heuristics? 145

7 Comparing?Differences and Similarities 147

I Need for a Yardstick for Comaprison?Tertium Comparationis 148

A Tertium and the Preference for Functional Comparison? 151

II Differences and Similarities 154

III Culture and Explanation 157

A Mentality 160

IV Economic Factors 163

V Historical Factors 165

A Colonialism 166

B Understanding Institutions and their Adoption 168

C The Presence of the Past 172

VI Geography and Climate 174

A Neighbourhood 175

VII Other Factors 177

VIII Differences between Explanatory Factors 179

IX The Presumption of Similarity? 181

A Diffusion and Similarity 184

8 Comparison?Obstacles and Difficulties 187

I Comparative Research?Between the Familiar and the Foreign 187

II Research Data Related Problems 189

III Pitfalls in Research-material Processing and Analysis 193

A The Problem of Legal Language 193

B Multilingualism 196

C The Significance of Context 198

IV Side-step to Theory: Comparing Laws, but what Laws? 200

A Validity of Law 201

B Pluralism and Law 204

V Legal Comparison?A Particularly Risky Business? 205

VI Comparision as a Learning Process 207

9 Macro-comparison 210

I Basic Blocks of Macro-comparison 211

A Common Law 211

B Continental Law aka Civil Law 213

C Mixed Legal Systems 215

D Religious-traditional Law 217

E What about the Socialist Legal Family? 219

II Constructing Macro-constructs 220

A Mastering Complexity by Means of Generalisations 222

III Grouping Legal Systems 224

A Legal Family 225

B Nordic Legal Family? 228

C Legal Culture 229

i Professional Law 231

ii Political Law 232

iii Traditional Law 232

D Legal Tradition 233

IV Macro-constructs and Methodology 237

A Change in the Knowledge Environment 237

B Concentration on Basic Matters 239

V Finally 241

10 Legal Evolution? 242

I Is there Evolution in Law? 243

II Problems in Macro-comparision 247

A Changing of Law 249

III Limits of Legal Evolution? 250

11 Groupings, Classifications, Categories 253

I Technical Criteria 255

II General Requirements 257

III History-related Factors 259

IV Nature of Legal Thinking (Legal Mentality) 260

A Differences Between the Basic Codifications of Continental Civil Law 262

V Factors Related to Societal Ideology 265

A Law and Devolopment 266

VI Cultural Factors 268

VII Finally 271

Index 273

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