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Comparative Law COMPARATIVE LAW This innovative, refreshing, and reader-friendly book is aimed at enabling stu- dents to familiarise themselves with the challenges and controversies found in comparative law. At present there is no book which clearly explains the contempo- rary debates and methodological innovations found in modern comparative law. This book fills that gap in teaching at undergraduate level, and for post-graduates will be a starting point for further reading and discussion. Among the topics covered are: globalisation, legal culture, comparative law and diversity, economic approaches, competition between legal systems, legal families and mixed systems, beyond Europe, convergence and a new ius commune, comparative commercial law, comparative family law, the ‘common core’ and the ‘better law’ approaches, comparative administrative law, comparative studies in constitutional contexts, comparative law for international criminal justice, judi- cial comparativism in human rights, comparative law in law reform, comparative law in the courts and a comparative law research project. The individual chapters can also be read as stand-alone contributions and are written by experts such as Masha Antokolskaia, John Bell, Roger Cotterrell, Sjef van Erp, Nicholas Foster, Patrick Glenn, Andrew Harding, Peter Leyland, Christopher McCrudden, Werner Menski, David Nelken, Anthony Ogus, Esin Örücü, Paul Roberts, Jan Smits and William Twining. Each chapter begins with a description of key concepts and includes questions for discussion and reading lists to aid further study. Traditional topics of private law, such as contracts, obligations and unjusti- fied enrichment are omitted as they are amply covered in other comparative law books, but developments in other areas of private law, such as family law, are included as being of current interest. Comparative Law A Handbook Edited by Esin Örücü and David Nelken OXFORD AND PORTLAND, OREGON 2007 Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: www.isbs.com © The editors and contributors severally 2007 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below. Hart Publishing, 16C Worcester Place, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN-13: 978-1-84113-596-0 (paperback) Typeset by Compuscript Ltd, Shannon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall Preface Comparative law has often been criticised for lacking in theory, Euro- centric, and black-letter-law and private law oriented. The purpose of this Handbook is to familiarise students with both classical and new material, and with the cur- rent and controversial issues of comparative law and comparative legal studies. At present, there is no textbook in the English language on contemporary issues of comparative law or comparative legal studies. Traditional introductory books first cover the aims, purposes, uses and methodology of comparative law, after which students are introduced to the major legal systems and prominent ‘legal families’. The substantive law dealt with is private law; the traditional area in which comparatists have hitherto worked. Times have changed. Other topics are of crucial importance today. Our purpose is to fill this gap in comparative law teaching and study. The Handbook is envisaged for use by undergraduates but will also be of use to post- graduate students for whom it will provide starting points for further discussion. At a basic level it will encourage readers to ask questions and at a later stage, when they have covered the essential groundwork, lead them on to question what they have learnt. Students are introduced to each topic through the work of experts in their fields. Commencing with a general introduction to comparative law and comparative legal studies, and a critical overview with a detailed signalling system binding the book together, the Handbook moves on to contemporary and burgeoning areas of comparative law. This treatment enables the reader to discuss current relevant debates and issues such as convergence/non-convergence, law in context (culture and economics), cultural distinctiveness, globalism versus localism, systems in transition, the use of comparative law by judges and the role of com- parative law in law reform activities and harmonisation, public law comparisons in both constitutional law and administrative law, a new common law in human rights, the ‘common core’ and the ‘better law’ approaches, comparative criminal law, commercial law and family law, and comparative law looking beyond the Western world. Other topics such as comparative environmental law, e-commerce, Alternative Dispute Resolution, bio-ethics or food safety could have been included, but choices had to be made. We selected some topics which have been either hitherto neglected or which do not appear in any standard comparative law textbook. Traditional topics of private law, such as contracts, obligations, unjustified enrich- ment and tort (delict) are deliberately omitted as these have been amply covered in comparative law textbooks. No direct information is given concerning different vi Preface jurisdictions either. Since a number of books are readily available covering such jurisdictions, it is more appropriate to leave the choice to individual lecturers. By using this innovative Handbook, which is reader-friendly both in the topics covered and the way the topics are treated, readers will be placed firmly in the contemporary picture. They will be able both to discuss critically the traditional areas and to access current issues presented by experts. Each chapter starts with a paragraph on key concepts (glossary) and ends with a list of questions for discussion. There are suggestions for further reading attached to each chapter for those who may wish to write essays on a particular topic. There are diagrams and tables wherever necessary. Each chapter highlights website connections. Links to university web pages, course outlines and reading lists, Comparative Law Forums, such as that of the University of Oxford, and elec- tronic journals, such as the Electronic Journal of Comparative Law, are included. The Editors Contents Preface ....................................................................................................................v List of Contributors .............................................................................................. ix I. Comparative Law at a Cross-roads ............................................................1 1. Comparative Law and Comparative Legal Studies ........................................3 DAVID NELKEN 2. Developing Comparative Law ......................................................................43 ESI˙N ÖRÜCÜ II. New Directions for Comparative Law .....................................................67 3. Globalisation and Comparative Law ............................................................69 WILLIAM TWINING 4. Com-paring ...................................................................................................91 H PATRICK GLENN 5. Defining and Using the Concept of Legal Culture ....................................109 DAVID NELKEN 6. Is it so Bad to be Different? Comparative Law and the Appreciation of Diversity ..............................................................133 ROGER COTTERRELL 7. The Economic Approach: Competition between Legal Systems ..............155 ANTHONY OGUS 8. A General View of ‘Legal Families’ and of ‘Mixing Systems’ ....................169 ESI˙N ÖRÜCÜ 9. Beyond Europe ............................................................................................189 WERNER MENSKI III. New Territories for Comparative Law ...................................................217 10. Convergence of Private Law in Europe: Towards a New Ius Commune? .................................................................219 JAN M SMITS viii Contents 11. Comparative Family Law: Moving with the Times? ...............................241 MASHA ANTOKOLSKAIA 12. Comparative Commercial Law: Rules or Context? .................................263 NICHOLAS HD FOSTER 13. Administrative Law in a Comparative Perspective ..................................287 JOHN BELL 14. Comparative Law in Constitutional Contexts .........................................313 ANDREW HARDING AND PETER LEYLAND 15. Comparative Law for International Criminal Justice ..............................339 PAUL ROBERTS 16. Judicial Comparativism and Human Rights ...........................................371 CHRISTOPHER MCCRUDDEN 17. Comparative Private Law in Practice: The Process of Law Reform ...............................................................................................399
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