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Comparative Law and the Europeanization of Private Law 比较法与私法的欧洲化
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0017
R. Zimmermann
{"title":"Comparative Law and the Europeanization of Private Law","authors":"R. Zimmermann","doi":"10.1093/OXFORDHB/9780199296064.013.0017","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0017","url":null,"abstract":"The gradual emergence of a European private law is one of the most significant contemporary legal developments. Comparative law scholarship has played an important role in this process; in turn, it has received a boost as a result of the ‘Europeanization of private law’ agenda. The present essay attempts to provide an overview of the new types of literature that have been created, of new perspectives that have been opened up, of new approaches that have been tried, and of the transnational networks that have been established. Within the traditional core areas of private law, contract law has been at the centre of attention. Apart from the many Directives, particularly in the field of consumer contract law, a prodigious number of reference texts has been produced and, for some time, a codification of European contract law appeared to be imminent. That plan has now collapsed, and the institutionalized ‘Europe’ is, at the moment, facing strong headwinds. One of the challenges faced by comparative scholarship consists in preserving the momentum that has been build up over the past three decades. The European Law Institute, founded in 2011, may emerge as an important platform to advance the Europeanization of private law through facilitating and stimulating transnational comparative study.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"620 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123212520","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: 10
Comparative Civil Procedure 比较民事诉讼
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0042
Joachim Zekoll
{"title":"Comparative Civil Procedure","authors":"Joachim Zekoll","doi":"10.1093/OXFORDHB/9780199296064.013.0042","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0042","url":null,"abstract":"This essay will first examine the attempts to categorize and label procedural systems, an impulse that many comparatists cannot, but should, resist because the very exercise of creating categories invites undue generalizations. The focus will then shift to procedural harmonization, a term that encompasses a number of topics of increasing importance to proceduralists. This section forms the centrepiece of the essay because it is here that most opportunities to benefit from comparative scholarship present themselves—and are still being missed. After illustrating the dynamics and results of regional, particularly European, and supra-regional harmonization initiatives, this section identifies trends towards harmonization through private rule making and examines principles that determine the scope of, and limits to, procedural harmonization. The final section addresses the growing concern about access to justice, specifically cost considerations and claim aggregation techniques, which prompt the somewhat related questions of whether and to what extent one legal system can borrow procedural rules from another one.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115965315","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: 7
Comparative Law and Socio-Legal Studies 比较法和社会法律研究
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0025
Annelise Riles
{"title":"Comparative Law and Socio-Legal Studies","authors":"Annelise Riles","doi":"10.1093/OXFORDHB/9780199296064.013.0025","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0025","url":null,"abstract":"The article begins by describing some shared ancestral figures of both comparative law and socio-legal studies, and the conundrums they have left to both fields. It then turns to the divisions between socio-legal studies and comparative law. It qualifies this account of disciplinary division with a description of two important areas of research—non-European comparative law and legal pluralism. The discussion describes the new rapprochement between the fields, and outlines a series of foci of active debate. These include the nature of legal pluralism under conditions of globalization, the character of legal culture, the causes and prospects of legal transplants, and the consequences of legal harmonization. From this point of view, the article outlines a number of points of general agreement between comparative lawyers and socio-legal scholars in hopes that the debate on these particular points can now be put to rest.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"122 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127984207","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: 15
Comparative Law And Private International Law 比较法与国际私法
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0043
Mathias Reimann
{"title":"Comparative Law And Private International Law","authors":"Mathias Reimann","doi":"10.1093/OXFORDHB/9780199296064.013.0043","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0043","url":null,"abstract":"Comparative law and private international law have had a long and intimate relationship. Traditionally, comparative law has interacted with private international law in three basic dimensions which can loosely be termed academic, legislative, and judicial. Comparative law has made private international law the object of scholarly study; it has assisted in the making of private international law rules; and it has provided a method for the application of existing conflicts norms. Recently, however, the emergence of supra-national legal orders has had a significant impact on the relationship between these disciplines, which are now jointly facing the challenges posed by the coexistence of overlapping legal regimes on multiple levels. These challenges can only be met through even greater cooperation between comparatists and private international lawyers than in the past.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122612097","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 History 比较法和法律史
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0024
J. Gordley
{"title":"Comparative Law and Legal History","authors":"J. Gordley","doi":"10.1093/OXFORDHB/9780199296064.013.0024","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0024","url":null,"abstract":"Legal historians have sometimes studied the law of one place and time while disregarding that of others. Comparative lawyers have sometimes compared the law of different jurisdictions while ignoring the historical reasons they are alike or unlike. The consequences have been unfortunate. Historians have often explained rules which are ubiquitous by the circumstances peculiar to one time and place. Comparative lawyers have often explained the similarities and differences among laws with a blind eye to how they arose. To understand how these problems came about, this article examines the origins of legal history and comparative law. It then describes, more concretely, why these disciplines need each other. Legal rules acquire their structure over time. Thus even if a comparative law scholar were only interested in the structure of modern rules, he would need the help of history.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128519005","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: 9
Development of Comparative Law in Italy 意大利比较法的发展
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0004
E. Grande
{"title":"Development of Comparative Law in Italy","authors":"E. Grande","doi":"10.1093/OXFORDHB/9780199296064.013.0004","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0004","url":null,"abstract":"Since Italy’s unification in 1861, Italian law has mainly been a ‘context of reception’. In contrast to contexts of production, where legal scholarship tends to unfold in a self-centred mode, contexts of reception tend to search for legal innovation abroad. Italian legal culture has often copied legal ideas, norms, and institutions from foreign countries but only rarely produced original work of its own. The article begins the story of comparative law in Italy in the early part of the twentieth century. It distinguishes three fundamental layers: a commercial law branch, a reformist tradition, and a mainstream, ‘scientific’, approach. It discusses the current state of Italian comparative law resulting from the academic and cultural influence of these three layers. It also attempts to assess the impact of the more significant and original contributions of Italian comparative law at the European and global levels.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123615525","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: 2
Unjustified Enrichment in Comparative Perspective 比较视角下的不当得利
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0031
D. Visser
{"title":"Unjustified Enrichment in Comparative Perspective","authors":"D. Visser","doi":"10.1093/OXFORDHB/9780199296064.013.0031","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0031","url":null,"abstract":"The emergence of unjust enrichment as a cause of action in its own right in England and Australia sparked a remarkable debate between, on the one hand, civil and common lawyers, who were confronted with thinking which was often completely outside the paradigm to which they had become accustomed, and, on the other hand, between common lawyers inter se about the merits of the various ways in which unjust enrichment may be understood and organized. At the heart of this debate was the struggle of the common law to confront and deal with the deficit caused by its reliance solely on ‘unjust factors’ to make sense of enrichment liability without taking account of the notion of ‘absence of basis’. This chapter argues that comparative lawyers can make an important contribution to the future of the fractured and fractious world of unjustified enrichment by uncovering the enormous wealth of learning of which both the common law and the civil law are the repositories, and so bring the same level of understanding to the law of unjustified enrichment which has, over the years, been achieved between the systems in regard to contract and tort.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122486189","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: 2
Development of Comparative Law in France 法国比较法的发展
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0002
Bénédicte Fauvarque-Cosson
{"title":"Development of Comparative Law in France","authors":"Bénédicte Fauvarque-Cosson","doi":"10.1093/OXFORDHB/9780199296064.013.0002","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0002","url":null,"abstract":"France has a long and solid tradition of comparative law. This article traces the discipline’s development in France, describing its strengths and weaknesses. As universal a science as it is, comparative law has distinctive features in each country. While there is currently no such thing as French or Italian comparative law in the sense that there is French or Italian contracts law, there is an identifiable French style in comparative law that is closely related to the development of French legal thought in general. The never-ending question of the purpose of comparative law emerges as one of the fundamental jurisprudential debates of the twentieth century. The first section of this article details the historical rise of comparative law in France. The second section chronicles its decline. The third section predicts its renaissance, provided French scholars, practitioners, and judges give the study of comparative law the regard it is due, in the light of the internationalization and Europeanization of the law.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128363998","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
Development of Comparative Law in Great Britain 英国比较法的发展
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0005
J. Cairns
{"title":"Development of Comparative Law in Great Britain","authors":"J. Cairns","doi":"10.1093/OXFORDHB/9780199296064.013.0005","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0005","url":null,"abstract":"Comparative law developed in Great Britain in the second half of the nineteenth century. The discipline focused mainly on imperial problems of foreign law and the assimilation of the laws of the different dominions of the Empire. Despite an interest in evolutionary jurisprudence, British scholars generally did not view the discipline as involving a search for universal principles. Through the twentieth century, there was a tendency to focus on comparison of the common law with the civil law, especially that of France. The discipline started to be significant in the universities with the expansion of legal education after the Second World War. Some aspects of the discipline developed into more anthropological studies, others remained more traditionally academic, while British membership of the European Economic Community (EEC) and more global pressures engendered interest in issues such as legal transplants and mixed systems, even if British scholars have traditionally been sceptical of unification of laws as an aim.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116585598","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 Comparative Knowledge 比较法与比较知识
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780198810230.013.10
Nils Jansen
{"title":"Comparative Law and Comparative Knowledge","authors":"Nils Jansen","doi":"10.1093/OXFORDHB/9780198810230.013.10","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.10","url":null,"abstract":"This chapter sets out to clarify the ideas of comparison and comparative knowledge. It analyses different approaches to these two issues, both from an analytical perspective and by means of a comparison with other disciplines, such as historical linguistics, comparative religion, and comparative history. The chapter describes the core of comparative knowledge as a structured description of a set of similarities and differences of the objects compared. Analytically, the article is based on the distinction of classifying comparison, qualifying comparison, and complex comparisons. Although qualifying and complex judgments of similarity and difference are irreducibly subjective, they are not meaningless if they relate to a clearly defined epistemological perspective or to a common understanding of the relevant circumstances; moreover they can be rationalized by a number of different tecniques. Those methodological techniques are presented in a list of nine basic conclusions.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"123 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121085692","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: 16
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