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Comparative Law, Transplants, and Receptions 比较法，移植和接收
The Oxford Handbook of Comparative Law Pub Date : 2019-03-21 DOI: 10.1093/OXFORDHB/9780198810230.013.14
Michele Graziadei
{"title":"Comparative Law, Transplants, and Receptions","authors":"Michele Graziadei","doi":"10.1093/OXFORDHB/9780198810230.013.14","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.14","url":null,"abstract":"The comparative study of transplants and receptions investigates the patterns of change triggered by contacts among laws and legal cultures. The study of legal transfers offers considerable intellectual rewards. It shows that the law is a complex phenomenon and corrects simplistic views regarding what law is and how it develops. Furthermore, it highlights how the language of the law is transformed as a consequence of such a dynamic through translations and adaptations. The spread of legal institutions, ideals, ideologies, doctrines, rules, and so on, is often in the hands of professional elites. The study of transplants and receptions demonstrates that the knowledge and standing of those elites comes from interactions between the local and non-local dimensions of the law. This picture is true in Berlin, in New York, in London, and in Lima, but it is also true in less cosmopolitan environments. The study of legal transplants has sometimes been accused of embracing a conservative orientation. Yet, this study simply subjects the law’s pretensions concerning its origins and ends to critical analysis. Doing so is not inconsistent with advancing progressive goals at all; in fact, it may be vital to a progressive agenda.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124981779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 4
Comparative Law and the Islamic (Middle Eastern) Legal Culture 比较法与伊斯兰(中东)法律文化
The Oxford Handbook of Comparative Law Pub Date : 2019-03-21 DOI: 10.1093/oxfordhb/9780198810230.013.19
Chibli Mallatt
{"title":"Comparative Law and the Islamic (Middle Eastern) Legal Culture","authors":"Chibli Mallatt","doi":"10.1093/oxfordhb/9780198810230.013.19","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780198810230.013.19","url":null,"abstract":"This article examines comparative law in Islamic/Middle Eastern legal culture. The first section discusses the comparative framework in Islamic law and civilization. The second section describes the rule of law in the prism of the legal profession. The third section discusses the notions of public and private in issues such as constitutions, contracts, and torts, and family law. A millennium and a half after the Islamic revelation, unrest and violence associated with the Islamic/Middle Eastern world make one wonder, from a comparative perspective, whether West and East are not on a collision course precisely because of their diametrically opposed concepts of law. On the Western side, law is associated with nation-states and their territory; on the Islamic/Middle Eastern side, law is dominated by the personal dimension, defined by an individual’s religious, and often sectarian identity.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131600774","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Comparative Law and Legal Culture 比较法与法律文化
The Oxford Handbook of Comparative Law Pub Date : 2019-03-21 DOI: 10.1093/OXFORDHB/9780198810230.013.22
R. Cotterrell
{"title":"Comparative Law and Legal Culture","authors":"R. Cotterrell","doi":"10.1093/OXFORDHB/9780198810230.013.22","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.22","url":null,"abstract":"The idea of legal culture has had an important place in major recent debates about the nature and aims of comparative law. The idea of legal culture entails that law should be treated as embedded in a broader culture of some kind. This culture may, but need not necessarily, be seen as wider than the lawyer’s or lawmaker’s professional realm of law. Often, however, conceptions of legal culture encompass much more than this professional juristic realm. They refer to a more general consciousness or experience of law that is widely shared by those who inhabit a particular legal environment, for example, a particular region, nation, or group of nations. Culture appears fundamental—a kind of lens through which all aspects of law must be perceived, or a gateway of understanding through which every comparatist must pass so as to have any genuine access to the meaning of foreign law.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133579643","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 22
Comparative Law in Central and Eastern Europe 中欧和东欧的比较法
The Oxford Handbook of Comparative Law Pub Date : 2019-03-21 DOI: 10.1093/OXFORDHB/9780198810230.013.7
Zdeněk Kühn
{"title":"Comparative Law in Central and Eastern Europe","authors":"Zdeněk Kühn","doi":"10.1093/OXFORDHB/9780198810230.013.7","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.7","url":null,"abstract":"The region of Central and Eastern Europe covers many of the European nations east of Germany. The dominant nation of the region is Russia. Between Russia and Germany there are, first, a number of small nations composing the region known as Central Europe (Poland, Hungary, the Czech Republic, and Slovakia); second, the nations which formed the western part of the Soviet Union; and, third, the states on the Balkan peninsula. This article shows the rich history of comparative law before the installment of communist regimes, such as the era of Stalin, and then discusses comparative law under communism and the role and status of comparative law after the fall of communist rule.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115707791","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Comparative Contract Law 比较合同法
The Oxford Handbook of Comparative Law Pub Date : 2019-03-21 DOI: 10.1093/OXFORDHB/9780198810230.013.29
H. Kötz
{"title":"Comparative Contract Law","authors":"H. Kötz","doi":"10.1093/OXFORDHB/9780198810230.013.29","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.29","url":null,"abstract":"This chapter discusses contract law in relation to comparative law. It first considers some of the reasons why contract law has become the classical subject matter of comparative law before explaining the practical relevance of the rules on general contract law to comparative studies. It then examines the similarities and differences between civil law and common law, along with the enforceability of agreements on the basis of the parties’ intention to create legal relations, the ‘doctrine of consideration’, and formal requirements of the contract. The chapter goes on to describe the two processes of ascertaining the content of a contract, namely: interpretation and supplementation. It also looks at illegal, immoral, and unfair contracts as well as the provisions on mistake, claims for performance of contractual obligations, termination of contracts, and claims for damages in case of non-performance or if a party does not perform its obligations properly.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"224 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114744883","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Comparative Law and Religion 比较法与宗教
The Oxford Handbook of Comparative Law Pub Date : 2019-03-21 DOI: 10.1093/OXFORDHB/9780198810230.013.23
James Q. Whitman
{"title":"Comparative Law and Religion","authors":"James Q. Whitman","doi":"10.1093/OXFORDHB/9780198810230.013.23","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.23","url":null,"abstract":"This chapter discusses the historical relationship between comparative law and religion. After a brief review of the literature, it considers some of the ancient connections between law and religion. In particular, it examines how the world religions emerged in what scholars of comparative religion call the ‘axial age’ of the first millennium BCE. It then describes the relationship between law and ritual, noting that the role of ritual in the law lies at the heart of the differences between the various religion/legal traditions of the Eurasian landmass. It also highlights the definitional problems in distinguishing ‘law’ from ‘religion’ that are exacerbated by contrasts in concepts of ‘religion’ itself, along with Wolfgang Fikentscher’s work on the axial age transformations. Finally, it analyzes two other institutional developments associated with axial age religion that have shaped the comparative development of the law: the centrality of written texts and and monasticism.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129100994","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Comparative Law and Human Rights 比较法与人权
The Oxford Handbook of Comparative Law Pub Date : 2019-03-21 DOI: 10.1093/OXFORDHB/9780198810230.013.49
S. Besson
{"title":"Comparative Law and Human Rights","authors":"S. Besson","doi":"10.1093/OXFORDHB/9780198810230.013.49","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.49","url":null,"abstract":"This chapter discusses the boundaries, the authority, and the methods of comparative human rights law (CHRL). It first explains what comparing human rights means and how it developed historically, along with some distinctions between subfields of CHRL, before considering the transnational consensus method, how it works, and how it relates to some of the general methods of comparative law. It goes on to examine the authority of and the justifications for the authority of CHRL, the democratic objection to the legitimacy of CHRL, and selected issues in CHRL. In particular, it analyzes three potential solutions to the problem of securing the universal scope of CHRL: the turn to quantitative methods in CHRL, the development of (trans-)regional human rights comparison, and generalizing CHRL to all universal human rights treaty bodies. In conclusion, the chapter argues that, unlike other areas of domestic and even international law, human rights law amounts to a necessarily comparative project, i.e. a law-making enterprise in which comparative law is not only interesting, but is required and in which it should not only amount to a piecemeal and retail practice, but to a systematic and universal one.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134069725","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Comparative Succession Law 比较继承法
The Oxford Handbook of Comparative Law Pub Date : 2019-03-21 DOI: 10.1093/oxfordhb/9780198810230.013.34
Marius de Waal
{"title":"Comparative Succession Law","authors":"Marius de Waal","doi":"10.1093/oxfordhb/9780198810230.013.34","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780198810230.013.34","url":null,"abstract":"It cannot be denied that the law of succession often projects a static image. One possible explanation for this is the fact that certain areas of the law of succession are indeed somewhat technical. However, this article examines comparative research, private international law, examples of trust and the transfer of estate to argue that there are changes that have been detected and explained principally through comparative scholarship in the field of the law of succession. The first is the significance of common social and economic changes and their impact on aspects of the law of succession. The article stresses the intimate relationship between the law of succession and family law. The identification and analysis of these changes have also been the stimulus for a new ‘mission’ for comparative researchers in the field of the law of succession—the quest for greater harmonization, especially in the European context.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123994584","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Comparative Law in Legal Education 法学教育中的比较法
The Oxford Handbook of Comparative Law Pub Date : 2019-03-21 DOI: 10.1093/OXFORDHB/9780198810230.013.46
Nora V. Demleitner
{"title":"Comparative Law in Legal Education","authors":"Nora V. Demleitner","doi":"10.1093/OXFORDHB/9780198810230.013.46","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.46","url":null,"abstract":"This chapter discusses comparative law within the framework of legal education in North America and Europe. It first considers some of the key debates surrounding the teaching of comparative law before providing a historical overview of major developments on both sides of the Atlantic since the nineteenth century. It then examines the post-World War II resurgence of comparative law in US legal education and the ascent of comparative law teaching in Europe, as well as the place of comparative law in legal education today. It also analyzes the present role of comparative law teaching in the European Union, the impact of international and transnational law on comparative legal education in the United States, and comparative law in Australia and Canada. The chapter concludes with a review of some of the current challenges to comparative law as a subject of teaching and scholarship and how comparative law fits into legal education more generally.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"344 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122759732","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Comparative Competition Law 比较竞争法
The Oxford Handbook of Comparative Law Pub Date : 2019-03-21 DOI: 10.1093/OXFORDHB/9780198810230.013.38
D. Gerber
{"title":"Comparative Competition Law","authors":"D. Gerber","doi":"10.1093/OXFORDHB/9780198810230.013.38","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.38","url":null,"abstract":"This article examines comparative competition law. It looks first at the current state of the literature. It envisions a path for comparative antitrust law scholarship that may allow it to realize more fully its potential value and respond more effectively to the challenges of economic globalization. Three main themes run through this article. One is that US law dominates the world of comparative competition law scholarship. A second is that the centrality of US law and experience divides the writing in the area and often distorts it. The third thread that runs through this article identifies the potential impact of economic globalization on the agenda of comparative competition law and the opportunities it creates for writers in the area to contribute to creating a sounder policy framework for transnational markets.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133078861","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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