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Comparative Law and its Influence on National Legal Systems 比较法及其对国家法律制度的影响
The Oxford Handbook of Comparative Law Pub Date : 2006-11-16 DOI: 10.1093/OXFORDHB/9780199296064.013.0016
J. Smits
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引用次数: 12
Sources Of Law and Legal Method in Comparative Law 法律渊源与比较法中的法律方法
The Oxford Handbook of Comparative Law Pub Date : 2006-11-15 DOI: 10.1093/OXFORDHB/9780199296064.013.0028
S. Vogenauer
{"title":"Sources Of Law and Legal Method in Comparative Law","authors":"S. Vogenauer","doi":"10.1093/OXFORDHB/9780199296064.013.0028","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0028","url":null,"abstract":"Sources of law serve to separate the province of law from the realm of non-law. Only propositions that are derived from a valid source of law are genuinely legal propositions. This article outlines the role of sources of law and legal method in the study of comparative law. The second section explains why these topics have been central to comparative legal scholarship from its very beginnings. The third section attempts to clarify their ambit for the purposes of comparative study, and identifies the pitfalls lurking for the comparative lawyer who wants to determine another system’s sources of law and the methodological approach prevailing there. The fourth section gives an overview of the most important comparative studies specifically dedicated to these matters. The fifth section maps out some areas which merit further research.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132455867","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: 8
Comparative Criminal Law 比较刑法
The Oxford Handbook of Comparative Law Pub Date : 2006-01-23 DOI: 10.1093/OXFORDHB/9780199673599.013.0047
M. Dubber
{"title":"Comparative Criminal Law","authors":"M. Dubber","doi":"10.1093/OXFORDHB/9780199673599.013.0047","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199673599.013.0047","url":null,"abstract":"Criminal law occupies an odd position in the field of comparative jurisprudence. Historically speaking, one can occasionally read that comparative law as a serious academic discipline began as comparative criminal law, either in Germany or in France, or both. And yet, introductions to comparative law tend to assume that comparative law means comparative civil law first and foremost. The first section of this chapter describes criminal law’s parochialism. The second section discusses the histories and functions of comparative criminal law. The third section discusses selected topics in comparative law, such as punishment theory, victims, jurisdiction, the principle of legality, the an analysis of criminal liability, and general principles of criminal liability. The last section discusses comparative criminal law in context, arguing that comparative criminal law is best seen as a mode of critical analysis of law, that is, as one way to gain critical distance from a given legal system by placing it within a larger context.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130775885","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: 20
Comparative Law and Language 比较法与语言
The Oxford Handbook of Comparative Law Pub Date : 2005-11-28 DOI: 10.1093/OXFORDHB/9780198810230.013.21
V. Curran
{"title":"Comparative Law and Language","authors":"V. Curran","doi":"10.1093/OXFORDHB/9780198810230.013.21","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198810230.013.21","url":null,"abstract":"The study of language is a cognitive model for comparative law. Language’s own dependence on translation is instructive in understanding comparative law in terms of the contrasting categories that undergird the civil and common law legal systems. Comparative law is situated between deeply entrenched, mutually contradictory aspirations of universalism and pluralism. While former domains of pluralism and difference are receding, difference itself remains undiminished. Comparative law’s effectiveness as a translator of the foreign depends on how well its acquired skills and methods can be adapted to new kinds of foreignness.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114953611","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: 30
The Functional Method of Comparative Law 比较法的功能方法
The Oxford Handbook of Comparative Law Pub Date : 2005-11-03 DOI: 10.1093/OXFORDHB/9780199296064.013.0011
R. Michaels
{"title":"The Functional Method of Comparative Law","authors":"R. Michaels","doi":"10.1093/OXFORDHB/9780199296064.013.0011","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199296064.013.0011","url":null,"abstract":"The functional method has become both the mantra and the bête noire of comparative law. For its proponents it is the most, perhaps the only, fruitful method. For its opponents, it represents everything bad about mainstream comparative law. This chapter tries to reconstruct and evaluate functionalist comparative law by placing it within the larger framework of other disciplines, especially the social sciences. Such an interdisciplinary analysis yields three promises. First, the interdisciplinary look makes possible a (re-) construction of a more theoretically grounded functional method of comparative law than is usually presented. Second, the interdisciplinary approach helps formulate and evaluate the concept in order to determine how functional the method really is. Third, comparison with functionalism in other disciplines can reveal what is special about functionalism in comparative law, and why what in other disciplines would rightly be regarded as methodological shortcomings may in fact be fruitful for comparative law. This opens the way to a reformulated functional method of comparative law.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130001036","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: 103
Comparative Constitutional Law 比较宪法
The Oxford Handbook of Comparative Law Pub Date : 1999-08-01 DOI: 10.1093/oxfordhb/9780199296064.013.0039
M. Tushnet
{"title":"Comparative Constitutional Law","authors":"M. Tushnet","doi":"10.1093/oxfordhb/9780199296064.013.0039","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780199296064.013.0039","url":null,"abstract":"This article examines the evolution of the field of comparative constitutional law and its relationship to politics and international rights; constitutionalism; constitutional foundings and transformations; constitutional structures; structures of judicial review; generic constitutional law; and national identity. Innumerable comparative studies address the ways in which different constitutions and constitutional systems deal with specific topics, such as privacy, free expression, and gender equality. However valuable such studies have been in bringing information about other constitutional systems to the attention of scholars versed in their own systems, their analytic payoff is sometimes questionable. Scholarship in comparative constitutional law is perhaps too often insufficiently sensitive to national differences that generate differences in domestic constitutional law. Or, put another way, that scholarship may too often rest on an implicit but insufficiently defended preference for the universalist approach to comparative legal study over the particularist one.","PeriodicalId":226421,"journal":{"name":"The Oxford Handbook of Comparative Law","volume":"93 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134165557","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: 45
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