The Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke

348 Pages·2014·1.625 MB·English

by  Maurice Adams, Dirk Heirbaut

THE METHOD AND CULTURE OF COMPARATIVE LAW
Awareness of the need to deepen the method and methodology of legal research
is only recent. The same is true for comparative law, by nature a more adven-
turous branch of legal research, which is often something researchers simply
do whenever they look at foreign legal systems to answer one or more of a
range of questions about law, whether these questions are doctrinal, economic,
sociological, etc. Given the diversity of comparative research projects, the pre-
cise contours of the methods employed, or the epistemological issues raised by
them, are to a great extent a function of the nature of the research questions
asked. As a result, the search for a unique, one-size-fi ts-all comparative law
methodology is unlikely to be fruitful. That, however, does not make refl ec-
tion on the method and culture of comparative law meaningless. Mark Van
Hoecke has been interested in many topics throughout his career, but legal
theory, comparative law and methodology of law stand out. Building upon
his work, this book brings together a group of leading authors working at
the crossroads of these themes: the method and culture of comparative law.
With contributions by: Maurice Adams, John Bell, Joxerramon Bengoetxea,
Roger Brownsword, Seán Patrick Donlan, Rob van Gestel and Hans Micklitz,
Patrick Glenn, Jaap Hage, Dirk Heirbaut, Jaakko Husa, Souichirou Kozuka
and Luke Nottage, Martin Löhnig, Susan Millns, Toon Moonen, Francois Ost,
Heikki Pihlajamäki, Geoff rey Samuel, Mathias Siems, Jørn Øyrehagen Sunde,
Catherine Valcke and Matthew Grellette, Alain Wijff els

The Method and
Culture of
Comparative Law
Essays in Honour of
Mark Van Hoecke
Edited by
Maurice Adams
and
Dirk Heirbaut
OXFORD AND PORTLAND, OREGON
2014
Published in the United Kingdom by Hart Publishing Ltd
16C Worcester Place, Oxford, OX1 2JW
Telephone: [phone]
Fax: [phone]
E-mail: [email protected]
Website: http://www.hartpub.co.uk
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: [phone] or toll-free: (1) 800 944 6190
Fax: [phone]
E-mail: [email protected]
Website: http://www.isbs.com
© The editors and contributors severally 2014
The editors and contributors have asserted their right under the Copy-
right, Designs and Patents Act 1988, to be identifi ed as the authors of
this work.
Hart Publishing is an imprint of Bloomsbury Publishing plc.
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 repro-
graphic rights organisation. Enquiries concerning reproduction which
may not be covered by the above should be addressed to
Hart Publishing Ltd at the address above.
British Library Cataloguing in Publication Data
Data Available
ISBN: 978-1-84946-623-3
ISBN (ePDF): 978-1-78225-492-8
Preface
Awareness of the need to deepen the method and methodology of legal research
is only recent. The same is true for comparative law—by nature a more adven-
turous branch of legal research—which is often something researchers simply
do whenever they look at foreign legal systems to answer one or more of a
range of questions about law, whether these questions are doctrinal, economic,
sociological, etc. Given the diversity of comparative research projects, the pre-
cise contours of the methods employed, or the epistemological issues raised by
them, are to a great extent a function of the nature of the research questions
asked. As a result, the search for a unique, one-size-fi ts-all comparative law
methodology is unlikely to be fruitful. That, however, does not make refl ec-
tion on the method and culture of comparative law meaningless. Mark Van
Hoecke has been interested in many topics throughout his career, but legal
theory, comparative law and methodology of law stand out. Building upon his
work, this book brings together a group of leading authors working at the
crossroads of these themes: the methodology and culture of comparative law.
We thank Richard Hart, the ‘house publisher’ of many a book of Mark
Van Hoecke, who has been so kind as to also publish this volume.
Maurice Adams, Tilburg
Dirk Heirbaut, Ghent
January 2014
v

Contents
Preface v
About the Authors ix
Table of Cases xi
Table of Legislation xiii
Table of Conventions xvii
1. Prolegomena to the Method and Culture of Comparative Law 1
Maurice Adams and Dirk Heirbaut
2. What is Legal Epistemology? 23
Geoffrey Samuel
3. Comparative Law as Method and the Method of Comparative
Law 37
Jaap Hage
4. Research Designs of Comparative Law—Methodology or
Heuristics? 53
Jaakko Husa
5. Law as Translation 69
François Ost
6. Controlled Comparison and Language of Description 87
Maurice Adams
7. Three Functions of Function in Comparative Legal Studies 99
Catherine Valcke and Mathew Grellette
8. Comparative Law and Legal History: A Few Words about
Comparative Legal History 113
Martin Löhnig
9. Comparative Contexts in Legal History: Are We All
Comparatists Now? 121
Heikki Pihlajamäki
10. The Curious Case of Overfi tting Legal Transplants 133
Mathias M Siems
11. ‘Ius commune’, Comparative Law and Public Governance 147
Alain Wijffels
vii
viii
12. Things Being Various: Normativity, Legality, State Legality 161
Seán Patrick Donlan
13. Against Method? 177
H Patrick Glenn
14. Comparatively Speaking: ‘Law in its Regulatory Environment’ 189
Roger Brownsword
15. The Importance of Institutions 207
John Bell
16. Live and Let Die: An Essay Concerning Legal-Cultural
Understanding 221
Jørn Øyrehagen Sunde
17. Policy and Politics in Contract Law Reform in Japan 235
Souichirou Kozuka and Luke Nottage
18. The Eurocrises and What Socio-legal Studies Could Do about
Them, or: Comparing European Pluralisms from Legal
Cultural Approaches 255
Joxerramon Bengoetxea
19. Comparing the Legitimacy of Constitutional Court Decision-
Making: Deliberation as Method 269
Toon Moonen
20. Making the Case for European Comparative Legal Studies in
Public Law 283
Susan Millns
21. Comparative Law and EU Legislation: Inspiration, Evaluation
or Justifi cation? 301
Rob van Gestel and Hans-W Micklitz
Author Index 319
Subject Index 321