By Esin Örücü
Viewing the contested topic Comparative legislation as an 'Enigma', this ebook explores its basic matters as sub-themes, every one lined in adaptations. After the Overture, the writer pulls a few strands jointly within the Intermezzo, makes use of a loose hand within the Cadenza, and asks the reader to attract her personal conclusions within the Finale. via this system essentially antagonistic perspectives are uncovered in each one bankruptcy. The what, why and the way of comparative legislations, comparative legislations and felony schooling, comparative legislations and judges, and comparative legislations and legislations reform through transposition are explored. the writer additionally examines present debates of comparative legislations comparable to legislation and tradition, deconstruction of classifications, blending platforms, limits of comparison, convergence/non-convergence and ius commune novum. through following this two-pronged strategy, the e-book covers many very important elements of comparative legislations in a clean demeanour no longer noticeable in the other paintings. it's provocative and discursive, bringing jointly for the reader significant advancements of comparative legislation. The ebook ends through asking 'Where are we going?'.
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Additional resources for The Enigma of Comparative Law: Variations on a Theme for the Twenty-first Century
Indeed it almost amounts to a "presumptio similitudinis" ... Z 3 Other words of caution seem called for: Functionalism has led us unwittingly to a precipice where we can almost think that all institutions which perform equivalent functions are essentially the same, that any pattern of change which achieves developmental goals is equal to any other on grounds of cultural relativism, and that the significance of 22 23 Graziadei above note 19, p. 101. Zweigert and Kotz, above note 5, p. 40. 26 Comparability institutions can be discovered exclusively in their social or economic consequences, not in their intrinsic characteristics.
At the macro-comparative level then, it is legal systems that are to be studied. However, are these two hundred or so legal systems to be studied one by one by comparative lawyers? Or are they to be grouped into the so-called 'legal families' and if so, should only the parent or the dominant systems in each family be studied to give insight into the family as a whole? Is this satisfactory? William Twining indicates that 'mainstream' comparative law has two approaches. ' 1 1 W. D. Edge (ed), Comparative Law in Global Perspective (New York, Transnational Publishers, 2000), p.
Today, in the context of the European Union, a number of Commissions are working on projects to produce at least 'General European Principles' in a number of fields. Most of these are 'common core' based Principles. C. Gutteridge, 'The comparative aspects of legal terminology' (1938) 12 Tulane Law Review, 401-411, at p. 410. 5 These issues will be re-visited in the course of Chapter 7. 6 See contributions in E. Orucii (ed), Judicial Comparativism in Human Rights Cases, United Kingdom Comparative Law Series Vol: 22, (London, UKNCCL/BIICL, 2003).
The Enigma of Comparative Law: Variations on a Theme for the Twenty-first Century by Esin Örücü