Juripragmatics: An introduction to the science of Comparative Law / Juripragmatique: Introduction à la science du droit comparé - 150118 (original) (raw)
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Comparative Law and Legal Science
This paper argues that it is useful for law students to gain some knowledge of comparative law for the following reasons: 1. A lawyer who has familiarised him or herself with the law of foreign jurisdictions is less likely to experience the ‘threshold of the unfamiliar’. 2. Occasionally legal decision makers base their decisions on comparative considerations. 3. The study of comparative law broadens one’s horizon and makes it easier to relativise one’s parochial law. Thus, the national law can be seen as one possible solution to societal problems, and not anymore as the legal structure of human society. 4. Comparative law can be a useful heuristic tool. It allows legal scientist to generate valuable hypothetical answers to research questions both more easily and with a wider scope. 5. Depending on the type of research questions one tries to answer and on one’s view of the law, comparative law can also play a role in scientific method (in the sense of standards for what are relevant arguments). - Such a role is undisputable for some kinds of explanation of the law’s contents (legal transplants). - Comparative law in a broad sense may provide data which are relevant for questions of evaluative legal science. - Comparative law can play a role in descriptive legal science too, for instance if one takes law to be the best possible regulation for collective enforcement.
THE MEANING OF »LAW« IN COMPARING LAWS, OR THE COMPLEXITY OF WHAT THE OBJECT OF LEGAL COMPARISON IS
2014
Comparative jurisprudence as an extension of the scholarly cultivation of domestic laws, closed down within its respective national boundaries, is historically rooted in the realisation of how much the self-closing of continental laws, based upon their national codification throughout the 19th century, emptied their scholarly approach as well. In the pioneering age of comparison, the turn of the centuries, legal ideology was still marked by the predominance of statutory positivism, so the law’s comparative treatment—as a first step—could not target but its statutory form. Albeit there have been mentions by the classics of legal comparativism, emphasising the significance of the law’s sociological entourage and cultural embeddedness as well, neither the direction nor the methodology of research has changed to a transformative depth since. Albeit nothing is given as ready-made: our life is an uninterrupted sequence of materialisations from among an infinite range of potentialities. In events when a decision is made, it is something selected that gets actualised. Every moment contributing to a decision in law is ambivalent in itself: nothing is compelling by its mere existence. Therefore we have to know in advance what the law is, what we can do with it and exactly what we can achieve through the store of its instruments in a given culture so that we can successfully proceed on with it and within it. Or, there is necessarily a given auditoire faced with a real situation of life and, acting with this auditoire, the well-defined contextuality of a stage (together with the given social, ethical, economic and political implications in play) that form the framework within which the judicial establishment of facts and interpretation of norms can take place at all. That what is identifiable of law when no implementation or judicial actualisation is priorly made is a dynamei [potentiality to get actualised] at the most, which can exclusively become anything more through an instrumental operation by legal technique. Accordingly, law is made up of (1) a homogenised formal concentrate (2) operated—through its being referred to—by a practical action, the result of which will posteriorly be presented to the external world as law converted into reality. One may conclude therefrom that all that can be rationally and logically justified within the law is mostly also made available in the law. For in cases when socially weighty considerations prevail, society is in the position to mobilise the means of rational justification at an adequately high level of logical standards (passing from principles and rules via exceptions to exceptions thereto, and so on) so that the necessary and feasible effect can be reached. The formal logical claim for norms being made deducible from norms is not a readily given availability but a normative requirement, setting down the internal rule of legal games as canonised by the prevailing judicial ideology. However, games can only be played in given situations, micro- and macro-sociological as well, in defining meanings within which also the judge takes part with his entire personality. Consequently, subtle shifts of emphasis in the definition of meaning, perhaps indiscernible in themselves, may add up to turns of direction in the long run of the process. Therefrom it seems as if the human wish for homogenisation and unambiguity went hand in hand with both the incessantly renewed attempts at reaching this in practice and their necessary stumbling in new heterogeneities and ambiguities, generating a continuous tension between a strain in theory and attempts at finally resolving this in practice. It seems as if hyperbolic curves were indeed at stake: when fighting for definite aims, we also necessarily move somewhat away from them with detours made. The sphere of action of the judge is certainly limited, and the means by what and the ways how it is limited are also ambivalent. For the only path available for us to proceed on is to build artificial human constructs of mediation and filter them through a homogenising medium by applying its rules to the former. However, when they are made use of, we cannot entirely separate these constructions from their necessarily heterogeneous environments, and, therefore, in each moment of their operation, a definition by real situations of life will also be inevitably present. Sure, behind all considerations concerning the simultaneity of applicative and creative effects of law-applying processes, there is a stimulating strain that prevails between living language(-use) and the blind (and in itself empty) logicism of a system homogenised through a formalising filter. And the significance of legal technique and the inevitably magic transformation effectuated in any legal process may become comprehensible only in the moment when we realise that law is not simply made up of rules, as in themselves they are nothing but mere symbols of logical abstractions. For anyone wishing to reasonably communicate with others cannot but use categories already interpreted in communication with others. Thanks to its reserves, language offers paths and ways of how to proceed, although, if examined more closely, these are extremely uncertain signals, full of ambivalence themselves. This is a circumstance that is, of course, not especially striking in everyday usage, that is, speaking in terms of pure logic, after the gaps left by such signals are completely filled in through our everyday conventions and conventionalisations. Law conceived as a rule in the ontological reconstruction of linguistic mediation is just a medium being incessantly formed through a series of interactions, and legal technique serves as just a bridge helping the lawyer to reach a concrete and definite legal conclusion. Regarding the very logic of law, it is quite symptomatic that while the dominance of formal inference makes its way uncompromisingly, in any case it will turn out that all this may remain valid only for routine cases of the average. For as soon as feasibility to follow the routine of conceptual categorisation becomes questioned in a borderline case (classifiable or not into a given category), logic, too, becomes at once irrelevant, as it has no message whatsoever specific to borderlines that may transcend the bounds of everyday routine in practice. What is striking here is that the special parts of the codes usually call for a relentlessly logical application of the regulation broken down systematically from principles to rules and rules to exceptions—to the exclusion of only one single case, namely, when the issue of the applicability of such a general clause or principle emerges, from somewhere in the general part of the code (classically, the actor or his/her deed being dangerous to society, in criminal law, or abuse of the law, in private law). Then, all the stuff of the strict and minutely detailed regulation offered by the entire special part of the code at once becomes non-applicable as irrelevant, with the questioned case left to be judged in almost a legal vacuum, with the sole reference to one or another general principle laconically drafted in the general part. Legal technique is an almost omnipotent instrument, usable in any direction in view of achieving practically anything in principle. We may use it, however, only within the womb of one or another legal culture that delineates also the framework of tacit conventions actually limiting from what and to what we can conclude at all. We live in the same culture, with both vague clauses guiding us to nothing in any concrete situation and rules calling for strict application. And if, in the name of a law, either dysfunctionality, due to the law’s blind enforcement, or, despite the law’s formal assertion, practical negation, will arise, the reason is not necessarily to be sought for in the given technical procedure. For it is known to all of us that practical life, with the entire network of subsystems within it, is operated by the same human involvement and social activity, after all. In case political considerations would unduly overwhelm the law’s operation, they can just as well utilise any instrument they have access to, in order to subject the law to them. Accordingly, from the very beginning, comparison of laws, targeting laws proper, that is, ones enacted, shall be widened so far as to comprehend their practical implementation, as either officially enforced or at least tacitly acknowledged as the realisation thereof. And in order to understand the ways and manners of implementation, including both the handling of what will be established as facts and the canons of interpretation of what will be referred to as norms, comparison has to target and involve the patterns of judicial thought (argumentation and reasoning, i.e., lawyerly ideology as a specific species of professional deontology) as well. KEYWORDS: comparative law / comparison of legal cultures; law in books/action; legal policy, legal technique; formalism/anti-formalism in law; law as potentiality/actuality; constitutional adjudication, legal imaginability; linguistic mediation; legal dogmatics; principles/clauses
6 JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 183-208 (2019), 2019
While the word "comparative" refers to a cognitive and intellectual activity supposing that there are several elements to compare, the word "law" is used in the singular, as if law was to be compared to itself. The whole phrase indicates that comparison takes place within the study of the law, but the use of the singular does not point to a pluralistic approach: what do we mean by law? Should we not talk about "comparing the laws" or "legal comparison"? With a refl ection on the words of the law as a starting point, this paper visits the corpus of comparative law in a pluralistic perspective and the process as a basic element of cognition. Words of the comparatists are then visited in successive steps describing what they do: fi rst the discovery of the foreign legal system with immersion in its language and culture yet keeping some outsider awareness to read the silence in language. Then comes the need to communicate on this other legal system, which is in essence an experience in translation. Based on what they learn, comparatists also build systems, using or developing common words in the various realms of international law, often for practical purposes. Last but not least, some aspire to develop neutral terms for the sake of knowledge in order to develop a specialty language of legal science. This latter activity tends to be neglected as a utopian aspiration. It encompasses the creation of precise terms and meta-categories. In any case, words are the tool of comparatists and therefore constantly evolve.
Cognitive Sciences and the Nature of Law (Draft version)
2021
Law is not simply a matter of rules: it is also a domain of facts and objects. There are professors of legal theory; Parliament enacted a statute; Italy is part of the European Union; that is a traffic light; this is my passport. Explaining these facts— their nature and structure, and more in general the nature of law—is a crucial problem of jurisprudence and is a special case of the general philosophical problem of the metaphysics of social phenomena, discussed by the philosophical discipline that now goes by the name of ‘social ontology.’ In this chapter, I will adopt this interdisciplinary approach and try to outline a picture, however tentative and incomplete, of the psychological problems and findings that are relevant for research in the metaphysics of law. This is an almost finalized version of the chapter published in J. Hage, B. Brożek, N. Vincent (eds.). 2021. Law and Mind. A Survey of Law and the Cognitive Sciences. Cambridge: Cambridge University Press
The concept and functions of Comparative Law
In view of the fact that the interpretive resource of using elements of foreign legal decisions in national court decisions is a reality in many courts, the present study analyses the concept and functions of Comparative Law. Therefore, in methodological terms, it makes use of basic bibliographic research, both Brazilian and international. In the end, it summarizes the main theoretical understandings on the subject, stating that Comparative Law consists of the field of legal studies through which similarities and differences between elements, branches or areas, legal systems and legal families, are identified. Furthermore, regarding its functions, it concludes that Comparative Law has primary (or epistemological) and secondary (or heuristic) functions, serving to increase legal knowledge and having applications in legislative policy and in the reasoning of judicial decisions.
Oleksiy Kresin. Social Law Doctrine and the Genesis of Procedural Comparative Jurisprudence
Modern studies of the interaction of legal systems, in our view, rest on the idea of the sociality of law formed in Europe during the Renaissance – the foundation of the philosophy of comparative jurisprudence. The interaction of legal systems assumes the relative autonomy of the sphere of law (subject-matter). If the sphere of law is not autonomous, neither the interaction therein or the study of the last has an autonomous character. Consequently, it must be secularized, juridified, positivized, and differentiated from other spheres of social being or social and other knowledge. No doubt this does not mean a break in the unity of knowledge in general or of social knowledge in particular, but merely an understanding of the conditional boundaries and channels of the mutual influence of the legal and the non-legal. The acquisition by law of its " I " in Europe would have been impossible without the socialization thereof – separation from theology, philosophy, ethics, studies of nature, and so on. The outcome of three centuries of the development of social thought in Europe from the sixteenth to the early nineteenth century was the destruction of the idea of a theocentric hierarchical world and confirmation of a new social worldview – secular, JCL 10:1 61 o. v. kresin horizontal, pluralistic, and comparativistic in essence, the principal subjects of which became social associations formed on the basis of a rational or irrational will of people – societies, nations, States. The mono-total world gradually collapsed into petty volitional monads-individuals which constructed on its ruins a new world of social totalities, equal and sovereign by virtue of their being endowed with the equal and sovereign will of individuals through the social contract (society, State) or social consciousness (nation). A world of peculiarities, distinctions, and interactions was born which could not be cognized by the traditional idealistic or rationalistic philosophy, or by natural law or dogmatic legal thought. Methodologies based on the approaches of theosophy, philosophy, natural and technical sciences proved to be inadequate for the cognition of this new social (including socio-legal) reality which finally materialized after the French Revolution and Napoleonic wars. This cognitive crisis led to a fundamental transformation of the social sciences as a whole and confirmation of jurisprudence as a social science, in particular. One of the constitutive elements which might ensure its unity under conditions of the bankruptcy of philosophical monism should become comparativism. In turn, the immanent feature of the last became procedurality, expressed in the awareness and cognition of the interaction of legal systems.