Epistemology and Methodology of Comparative Law (European Academy of Legal Theory Series)

408 Pages·2004·1.41 MB·English

by  Belgium) Conference on Epistemology and Methodology of Comparative Law (2002 : Brussels

EPISTEMOLOGY AND METHODOLOGY OF
COMPARATIVE LAW
EUROPEAN ACADEMY OF LEGAL THEORY MONOGRAPH SERIES
General Editors
Professor Mark Van Hoecke
Professor François Ost
Professor Luc Wintgens
Titles in this Series
Moral Conflict and Legal Reasoning by Scott Veitch
The Harmonisation of European Private Law edited by Mark Van Hoecke
On Law and Legal Reasoning by Fernando Atria
Law as Communication by Mark Van Hoecke
Legisprudence edited by Luc Wintgens
Epistemology and
Methodology of
Comparative Law
Edited by
Mark Van Hoecke
Katholieke Universiteit Brussel
OXFORD AND PORTLAND OREGON
2004
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Foreword
This volume contains mainly the plenary papers of the Conference on
Epistemology and Methodology of Comparative Law, organised in Brussels
on 24 till 26 October 2002.
This Conference has been organised by the Katholieke Universiteit
Brussel, in collaboration with the Vrije Universiteit Brussel and the
European Academy of Legal Theory. We are grateful to both universities
and to the Fund for Scientific Research, Flanders, for their generous finan-
cial support.
Whereas comparative law conferences generally focus on some fields or
topics of positive law, the aim of the Brussels conference, of which the ple-
nary papers are published in this volume, was of a more theoretical kind:
reflecting on comparative law as a scholarly discipline, on its epistemology
and its methodology.
Some of the topics on which the papers and the discussion were
focussing are:
— which kind of ‘knowledge’ is, or could be, aimed at by comparative
law?
— the classification of legal systems into ‘legal families’ (is there an
emerging ‘European legal family’, which is transcending, or at
least overlapping, the traditional classification Common Law—
Civil Law? Do we have to distinguish different classifications
into ‘legal families’ according to the area of law?);
— the relevant context for determining (the content of) the law, or
the distinction of different levels on which comparative research
may be carried out (e.g., a more technical ‘surface level’, a ‘deep
level’ of the ideological background of law and legal practice,
and an ‘intermediate level’ of other elements of legal culture, such
as the socio-economic and historical background of law);
— the identification and demarcation of a ‘legal system’, which is to
be compared with another ‘legal system’ (this brings us to the
opposition between ‘legal monism’ and ‘legal pluralism’, and the
definition of the European legal orders, sub-State legal orders,
along with what is left of traditional sovereign State legal
systems);
— the relationship between domestic law, international private law
and international public law;
vi Foreword
— the desirability and possibility of developing a basic common
legal language, with common legal principles and legal concepts
(a common technical legal language, as it is currently developing
within the European jurisdictions and other norm creating insti-
tutions, and/or a legal meta-language, which would be developed
and used within an emerging European legal doctrine).
The scope of the approaches in this volume is rather wide. Some papers are
methodological reflections of experienced comparatists, starting from their
broad practice in comparative research. Other papers are of a more theo-
retical nature and reflect mainly on the epistemologic question of (the acces-
sibility of) knowledge of foreign legal systems and of law in general. They
all have in common that they address more fundamental, scientific prob-
lems of comparative research that are too often neglected in comparative
scholarship.
Mark Van Hoecke
Brussels,
February 2003
Contents
List of Contributors ix
1. Legal Culture vLegal Tradition 1
Alan Watson
2. Legal Cultures and Legal Traditions 7
H Patrick Glenn
3. Legal Epistemology and Transformation of Legal Cultures 21
Marek Zirk-Sadowski
4. Epistemology and Comparative Law: Contributions from the
Sciences and Social Sciences 35
Geoffrey Samuel
5. How to Make Comparable Things: Legal Engineering at the
Service of Comparative Law 79
Juha Karhu (Previously Juha Pöyhönen)
6. Methodology and European Law—Can Methodology Change
so as to Cope with the Multiplicity of Law? 91
Karl-Heinz Ladeur
7. Comparative Law of Obligations: Methodology and
Epistemology 123
Christian von Bar
8. Codifying European Private Law 137
Walter van Gerven
9. Deep Level Comparative Law 165
Mark van Hoecke
10. NICE Dreams and Realities of European Private Law 197
Nikolas Roos
11. The Europeanisation of National Legal Systems: Some
Consequences for Legal Thinking in the Civil Law Countries 229
Jan M Smits
viii Contents
12. Comparative Law and the Internationalisation of
Law in Europe 247
Mireille Delmas Marty
13. Public Law in Europe: Caught between the National,
the Sub-National and the European? 259
John Bell
14. New Challenges in Public and Private International Legal Theory:
Can Comparative Scholarship Help? 271
Horatia Muir Watt
15. Abridged or Forbidden Speech: How Can Speech be
Regulated through Speech? 285
François Rigaux
16. Legisprudence and Comparative Law 299
Luc J Wintgens
17. Rawls’ Political Conception of Rights and Liberties:
An Illiberal but Pragmatic Approach to the Problems of
Harmonisation and Globalisation 317
Paul de Hert and Serge Gutwirth
18. Family Trees for Legal Systems: Towards a Contemporary
Approach 359
Esin Örücü
19. A Common Legal Language in Europe? 377
Anne Lise Kjær
List of Contributors
Christian von Bar is Professor and Director of the Institute of Private
International and Comparative Law of the Universität Osnabrück. He is also
Bencher (Hons.) of Gray’s Inn (London), corresponding fellow of the British
Academy, corresponding fellow of the Académie internationale de droit com-
paré and doctor juris honoris causaof the Katholieke Universiteit Leuven.
([email protected])
John Bellis Professor of Law at the University of Cambridge.
([email protected])
Paul de Hertis senior-lecturer (uhd) at the Universiteit Leidenand Professor
at the Vrije Universiteit Brussel.
([email protected])
Mireille Delmas-Martyis Professor at theCollège de France, Paris.
([email protected])
H. Patrick Glennis Peter M. Laing Professor of Law at the Faculty of Law &
Institute of Comparative Law, McGill University, Montreal, and Visiting
Fellow at All Souls College, Oxford University.
([email protected])
Serge Gutwirth is Professor of Law at the Vrije Universiteit Brusseland lec-
turer at the Erasmus Universiteit Rotterdam.
([email protected])
Juha Karhu (Previously Juha Pöyhönen) is Professor at the University of
Lapland, in Rovaniemi, Finland. Juha Pöyhönen changed his name in 2003.
Anne Lise Kjaer is Postdoctoral research fellow at the Faculty of Law,
University of Copenhagen.
([email protected])
Karl-Heinz Ladeuris Professor at the Universität Hamburg.
([email protected])
Horatia Muir Watt is professor at the Université de Paris I (Panthéon-
Sorbonne). Also deputy director of the UMR (Unité Mixte de Recherches)
de Droit comparé de Paris (Paris 1–CNRS).
([email protected])
x List of Contributors
Esin Örücü is Professor of Comparative Law at the University of Glasgow
and the Erasmus Universiteit Rotterdam. She is also an associate member
of the International Academy of Comparative Law (Académie Internationale
de Droit comparé).
([email protected])
François Rigaux is emeritus Professor of the Université Catholique de
Louvain(Louvain-la-Neuve) and member of the Belgian Royal Academy.
Nikolaas Roosis Professor Meta-Juridica at the Universiteit Maastricht.
([email protected])
Geoffrey Samuelis Professor of Law at the Kent Law School (University of
Kent at Canterbury).
([email protected])
Jan M Smits is Professor of European Private Law at the Universiteit
Maastricht.
([email protected])
Walter van Gerven is emeritus Professor of the Katholieke Universiteit
Leuven and the Universiteit Maastricht. He teaches at the European
Academy of Legal Theory and is visiting professor at King’s College,
London, and at the Universiteit Gent. Formerly he has been Advocate
General at the European Court of Justice (ECJ).
([email protected])
Mark Van Hoecke is Professor of Law and Jurisprudence and, as from
October 2002, the rector of the Katholieke Universiteit Brussel. He is also
co-director of the European Academy of Legal Theory.
([email protected])
Alan Watsonis Distinguished Research Professor & Ernest P. Rogers Chair
of Law at the University of Georgia.
([email protected])
Luc J. Wintgens is Professor of Law and Jurisprudence at the Katholieke
Universiteit Brusseland dean of the law faculty.
([email protected])
(cid:1)
Marek Zirk-Sadowski is Professor of Law at the University of Lódz(Poland).
([email protected])