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Comparative Law and African Customary Law 比较法和非洲习惯法
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780198810230.013.20
T. Bennett
{"title":"Comparative Law and African Customary Law","authors":"T. Bennett","doi":"10.1093/OXFORDHB/9780198810230.013.20","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.20","url":null,"abstract":"Customary law grows out of the social practices which a given jural community has come to accept as obligatory. It is a pervasive normative order, providing the regulatory framework for spheres of human activity as diverse as the family, the neighbourhood, the business of merchant banking, or international diplomacy. This article looks at the indigenous customary laws of sub-Saharan Africa. It deals with the preservation of the law in an oral tradition and how it has been influenced by certain social, economic, and political structures. This focus requires, in turn, that particular attention be paid to factors influencing the production of texts on customary law. Because textual information on the subject is limited, often outdated, and somewhat subjective, readers must be made aware of how changes in the theories of jurisprudence and anthropology have affected ideas and preconceptions.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"128 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":"133790761","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: 5
Globalization and Comparative Law 全球化与比较法
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780198810230.013.18
H. Watt
{"title":"Globalization and Comparative Law","authors":"H. Watt","doi":"10.1093/OXFORDHB/9780198810230.013.18","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.18","url":null,"abstract":"If comparative legal studies are to retain their relevance in understanding the impact of global changes on existing local traditions, their modes of interaction and influence, and their strategies for survival, then, the article concludes, their focus certainly needs adjusting. This article attempts to examine the ways in which comparative law as a discipline is affected by the changes wrought by globalization, and in particular the challenges which such changes imply for the methodological agenda of comparative legal studies and for its ideological commitments. More pragmatically, it may also be useful to envisage the impact of increased access to information on foreign laws, and the growth of trans- or international sources of uniform law, on the practical usefulness of comparative law.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"75 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":"122728035","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 Law and Critical Legal Studies 比较法与批判法律研究
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0026
U. Mattei
{"title":"Comparative Law and Critical Legal Studies","authors":"U. Mattei","doi":"10.1093/OXFORDHB/9780199296064.013.0026","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0026","url":null,"abstract":"The contribution of Critical Legal Studies to comparative law is a matter of considerable international interest, not only in light of the remarkable presence of the movement in several leading US-American academic institutions but also in view of the rather desperate need for comparative law as an academic discipline for theoretical revision and reorientation. This article examines the contributions Critical Legal Studies has really made to comparative law, and how original they are. First, it describes the emergence, as well as some of the work, of Critical Legal Studies in terms of comparative law. Second, it pursues to what extent the Critical Legal Studies approach breaks with, or rather continues, the agenda of the discipline’s mainstream. Third, it presents a sympathetic analysis of the critique, evaluating the actual political and scholarly contribution of the Critical Legal Studies approach to comparative law.","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":"131183392","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: Study of Similarities or Differences? 比较法:研究异同?
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0012
Gerhard Dannemann
{"title":"Comparative Law: Study of Similarities or Differences?","authors":"Gerhard Dannemann","doi":"10.1093/OXFORDHB/9780199296064.013.0012","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0012","url":null,"abstract":"Comparing legal systems involves, at least to some degree, exploring both similarities and differences. For some writers, this forms part of the definition of comparative law. Some comparative lawyers have generally emphasized differences, while others see similarities, particularly in problems and their results, and a third group has sought to strike a balance between observing and analyzing similarities and differences. Drawing on a debate in comparative history, this article argues that the proper balance between looking for similarities and for differences depends on the purpose of the comparative enquiry. Furthermore, it links the issue of difference or similarity to the various steps which are involved in a comparative legal enquiry, suggesting that some steps require more focus on similarity, others on difference, and many call for a balance of both.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"10 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":"126063239","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: 34
Development of Comparative Law in the United States 美国比较法的发展
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780198810230.013.6
D. Clark
{"title":"Development of Comparative Law in the United States","authors":"D. Clark","doi":"10.1093/OXFORDHB/9780198810230.013.6","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.6","url":null,"abstract":"This chapter examines the origins of comparative law activities during the colonial British American period and the formative era of the United States. During the eighteenth and nineteenth centuries, knowledge of Enlightenment philosophy and Roman and continental European legal systems acted as a filter for the importation of rules and structures to serve a culturally diverse people and to construct an emerging nation in the new world. Nevertheless, the first 125 years of United States history saw some exportation of American laws and legal institutions, primarily to the newly independent Latin American nations in the 1820s. These included concepts from the Constitution of 1789, the 1791 Bill of Rights, and public law structures such as federalism, a presidential executive, and judicial review of legislative and executive action. By the twentieth century, American comparative law began to form as an organized activity, with its own institution, journal, and annual meetings. This process was uneven, but steady. When the Comparative Law Bureau folded into a more comprehensive ABA section, the American Foreign Law Association kept the flame alive. Comparatists dealt with more complex methods and issues, some debated in international meetings. After World War II, law school professors established American comparative law on a firmer institutional basis with a new association, journal, and scholarly meetings.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"142 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":"115771615","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 Property Law 比较物权法
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780198810230.013.33
S. Erp
{"title":"Comparative Property Law","authors":"S. Erp","doi":"10.1093/OXFORDHB/9780198810230.013.33","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.33","url":null,"abstract":"The number of studies in comparative property law has recently been growing as a result of efforts to harmonize, or unify, certain aspects of property law in areas crucial for international business transactions. Increasing regional and global economic integration has led to a growing awareness that the divergence of legal rules may lead to inefficiency and raise transactions costs. In Europe the four economic freedoms (free movement of goods, persons, services, and capital), to which now should be added as a fifth freedeom the free movement of data, laid down in the Treaty on European Union and the Treaty on the Functioning of the European Union, have a growing influence on property law. Comparative property law, once considered to be fairly static, is turning into an increasingly dynamic field of law. This is to a considerable degree a consequence of European and global economic integration, and the resulting legal integration. The national property laws, whether belonging to the civilian or the common law tradition, will all be affected by this change.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"62 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":"127219230","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
Comparative Law Before the Code Napoléon 《那不勒斯法典》之前的比较法
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0001
C. Donahue
{"title":"Comparative Law Before the Code Napoléon","authors":"C. Donahue","doi":"10.1093/OXFORDHB/9780199296064.013.0001","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0001","url":null,"abstract":"Modern comparative lawyers tend to date the foundation of their discipline to the nineteenth century and to the promulgation of the great European codes. This article claims that one could make an argument that comparative law is to be found in the ancient world, with some suggestion of it in the early writings of Aristotle’s Politics; that despite the multiplicity of legal sources it is not often found in the early or high middle ages; that there are hints of it in the commentators of the later middle ages; that in a very real sense it can be found in the ideas of the French legal thinkers of the sixteenth century; and that one can trace a relatively clean line of sources from the sixteenth century to whatever nineteenth-century authors one chooses to focus on as the founders of the discipline that produced the First International Congress of Comparative Law in 1900.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"52 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":"122245054","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
Comparative Administrative Law 比较行政法
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0040
J. Bell
{"title":"Comparative Administrative Law","authors":"J. Bell","doi":"10.1093/OXFORDHB/9780199296064.013.0040","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0040","url":null,"abstract":"Comparative administrative law is a long-standing discipline. The study of other administrative law systems both in order to understand one’s own system better and to find models for improvement has been occurring for over 150 years. It is closely bound up with national institutions and traditions, as well as national constitutional values and ways of operating. Any comparative approach has to take full account of the institutional context in which a particular problem or procedure occurs and to ensure that full account of these nationally specific features is taken before any attempt is made to generalize or compare. This article describes the scope of the subject, the values served by administrative law, and influences shaping administrative law. It also compares the powers, organizations, and procedures of the administration, as well as legal redress.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"58 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":"131127106","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 Legal Families and Comparative Legal Traditions 比较法律家族与比较法律传统
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0013
H. Glenn
{"title":"Comparative Legal Families and Comparative Legal Traditions","authors":"H. Glenn","doi":"10.1093/OXFORDHB/9780199296064.013.0013","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0013","url":null,"abstract":"For much of the twentieth century, comparatists have divided the world into ‘legal families’ (such as the civil law, the common law, socialist law, etc.) and assigned each (national) legal system a place in one of them. The chapter argues that this taxonomic enterprise has largely remained at the descriptive state, entailed a misleading division into fixed categories, and that is has failed to produce real comparison between laws. It is also too static, state-centred, and Euro-centric to be workable under conditions of late twentieth and early twenty-first century globalism. It should be replaced by the paradigm of ‘legal traditions’ which not only emphasizes the evolving nature of law, but also avoids dividing the world into clearly separated groupings. Instead, a ‘legal traditions’ approach focuses on the fluidity, interaction, and resulting hybridity of laws, thus facilitating their comparison. As it is not tied to Western-style national legal systems, it can easily capture the laws of the whole world, including the increasingly important non-state forms of legal normativity. Since the chapter was written by the late H. Patrick Glenn over a decade ago, the editors added a postscript bringing the reader up to date on the scholarship on, and the debate about, legal families and traditions.","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":"127706752","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: 18
Comparative Sales Law 比较销售法
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0030
P. Huber
{"title":"Comparative Sales Law","authors":"P. Huber","doi":"10.1093/OXFORDHB/9780199296064.013.0030","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0030","url":null,"abstract":"The story of comparative law in the field of sales contracts is inextricably linked to Ernst Rabel. Rabel not only prepared the basis for any comparative study of the modern law of sales in his epochal treatise ‘Das Recht des Warenkaufs’, but also initiated the process of world-wide harmonization of the law of international sales. This process has not only led to one of the most important international conventions in the field of private law (the 1980 UN Convention on Contracts for the International Sale of Goods—CISG) but has also become a highly influential factor in the field of comparative sales law in the twentieth century. The article first outlines the most important projects in this area and their interaction with comparative law. It then goes on to discuss selected characteristic features of the law of sales which are interesting from a comparative point of view.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"19 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":"126184686","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
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