COMPARATIVE LAW full

Name of this legal science branch: - Among different countries: not unanimous e.g.: in French, droit comparé = compared law; in German, Rechtsvergleichung = comparision of law - Within

Lecturers Do Thi Anh Hong

Comparative Law Institute

Hanoi Law University

Sep 2018

COMPARATIVE LAW

COURSE DISCRIPTION IN BRIEF

I. On the C omparative L aw (CL)

1. Name of this legal science branch:

- Among different countries: not unanimous (e.g.: in French, droit

comparé = compared law; in German, Rechtsvergleichung =

comparision of law)

- Within a country (US): not unanimous either

E.g.: Legal scholars: Comparative law; Comparative legal traditions…;

Legal linguists: Comparative Jurisprudence

 Which name should be used? COMPARATIVE LAW

2 The terms & concepts used in CL

 Terms & Concepts: vary from country to country  Eg.:

+ Different Terms: “legislature” (Eg.: US v UK)

+ Different Concept: “high court” (Eg.: Australia v UK)

Legal Jargon: might differ from those used & understood in even other law subjects:

Eg:

- Legal system;

- Civil Law;

- Common Law

3 CL as a branch of legal science

- In XIX, beginning of CL was taken up with discussions attempting:

+ to define its aims, nature,

+ to establish its place among the sciences,

+ to characterize its methods, possible applications & general

usefulness

- CL has developed enormously since beginning of XX 1st

International Congress for CL held (in Paris, 1900)

 Views expressed here led to productive research in CL

 Till 1970s, most comparatists were inclined to doubt the existence of the science of CL (merely a variety of study methods of

jurisprudence)

II ON THE C OMPARATIVE L AW SUBJECT

1 CL as an academic discipline in the LLB

curriculum

- In a number of countries around the world:

+ 1st half of the XX, CL still occupied a modest

position in academic curricula (France, Germany, UK, US ):  CL: a selective subject

+ Nowadays (international integration process…)

 CL: mandatory subject

- In Vietnam: early 21st century (27th intake, HLU)

2 CL Course Syllabus

Two main parts:

- General Consideration Part: Fundamentals of CL and CL subject

(concept/features/objects/method )

- Specific Part: Fundamentals of Legal Families / Legal Systems

Note: Disputed viewpoints on the CL subject’s specific part:  can be

classified into 2 groups of subject:

Group 1: Structural Research Subj.: relationship b/t legal families, legal

systems; b/t internal components of legal systems

Group 2: Law Branch Research Subj.: comparing law branches of

different countries (e.g.: ….)

3 CL Course’s overall objectives ( p4-5 Course Outline)

- Cognition (deep discipline knowledge; legal, cultural, historical,

geographical… knowledges)

- Skills (comparing, collecting inf., analyzing, synthesizing…)

- Attitude (self-improving of perception of foreign legal systems/law;

more objective in assessment of domestic law…)

- Other objectives: (p.5)

4 CL subject’s achievement & future

- In the past: CL  a res method used in legal

science

- Nowadays: CL  a branch of legal science, a

law discipline in LLB curriculum

- Future: increasingly important (a trend: CL

subject & many specialized CL subjects in law

school curricula)

5 Learning Resources

- See Course Outline, 2017 (p.12-15);

- Note: + Poor in VN but Rich in foreign languages

materials

+ Mandatory & Additional materials

1.Micheal Bogdan, “Comparative Law”, Kluwer / Norstedts

Juridik / Tano, 1994; (*)

2.M.A Glendon, M.W Gordon, P.G Carozza, “Comparative

Legal Traditions in a Nutshell”, 2nd Ed, West Group,

1999; (*)

3.K Zweigert & H Kotz, “Introduction to Comparative

Law”, 3rd Ed, Oxford University Press, 1998;

4.R David & J.C Brierley, “Major Legal System in the

World Today”, 3rd Ed, 1985 (reprinted 1996).

5.P de Cruz, ”Comparative Law in a Changing World”,

Cavendish Publishing Ltd, 1999.

III COLLECTING INFORMATION

FOR SELF-STUDY PURPOSE

- From books, journal articles: Vietnamese vs Foreign languages

- From Website:

+ westlaw.com; lexis.com; heinonline.org

+ … gov…; …edu…; …aca…

CHAPTER I: COMPARATIVE LAW IN BRIEF

I General Considerations (M Bogdan: pp

I General considerations

1 What is C omparative L aw ( CL )?

a. The term “CL”: no unique term used:

+ amongst different countries

+ in a country

b Definition of CL

- No single definition

- 3 definitions by 4 authors (VN, German, Swedish)

(1) VN author: CL: “a method of scrutinizing, studying &

approaching law on the basis of internationally legal exchange”

 Good aspects: condensed; linguistic elegance

 Not so good aspects:

+ CL = method  >< newly emerging international tendency+ Research object: too general/broad

(2) German authors: Zweigert & Kotz:

- CL: “An intellectual activity with law as its

object & comparison as its process”; “the

world” (p.2)

 Good aspects: condensed; linguistic elegance

 Not so good aspects:

+ research object: too general/vague

+ research method: too poor

(3) Swedish author: Michael Bogdan

the treatment of the methodological problems which arise in connection with these tasks, including methodological problems connected to the study of foreign law.” (p.18)

 Good…: (full image of CL; concrete objects, methods, aims)

 Not so good : (too long )

c Features of CL

(1) Not a law branch, nor a system of legal rules

)2) Used to compare different legal systems

Note: compare between legal acts, rules of the same legal

system, enacted by different ruling powers, in different historical stages  not CL

(3) Study of CL ≠ study of foreign law

(4) CL: branch of legal science, not simply a research method

(5) CL’s research scope seems unlimited:

+ Cannot be treated in an exhaustive manner

+ Can hardly imagine all conceivable bilateral & multilateral

comparisons b/t all combination of existing legal systems

 NOTE: Should limit research scope to particular legal

questions/countries

2 CL’s research objects

components; relation b/t groups of LS & reasons for their

similarities & differences  concepts to be clarified:

- LS: (1) systematic collection of legal rules/principles (≠

morality, politics, physics )

(2) independent system of government (recognized ) (3) legal institutions operating within a geographic area (4) an operating set of legal institutions,

procedures & rules

- L egal f amily ( LF ): group of LSs having similarities b/c of having

same deeply historical root; & same legal roles in society and

in human ideology LF ≠ LS  E.g.: LFs

- L egal t radition ( LT ): set of historical conditioned attitudes to the

role of law in a particular society, its characteristic mode of

legal thought & its legal sources & basic ideology

Note: How to use terms: LS, LF, LT.

b CL’s research scope

(1) National LS: relation b/t 2/more national LSs:

+ legal rules, institutions, legal thinking mode…;

+ mechanism of law application;

+ legal profession;

+ legal education.

(2) LF: relation b/t 2/more LFs  limit scope of research

(3) International law :

+ when comparing b/t national & international law

+ a regular research subject in international integration process

c Levels of comparison:

Macro & Micro comparison

- What are they?

+ Macro C (large Re object): b/t LSs; b/t LFs  E.g…

Note: bilateral & multilateral comparison

# C/p b/t 2 legal systems  Bilateral (Eg)

# C/p b/t more than 2 legal systems Multilateral (Eg)

+ Micro C (small Re object): b/t legal rules; legal institutes  E.g.?

- Relation b/t the 2 levels of comparison

+ Concrete conclusion

b Steps in comparison of law

- How many approaches to accomplish a CL research project?

- Six steps:

+ Pose a question/hypothesis

+ Choice of law

+ Collecting reference materials

+ Building up system of concepts

+ Writing a report on research object

+ Evaluation of research findings

(1) Posing question/hypothesis

- Result from:

(a) Dissatisfaction (eg.)  foreign law must be different

(b) Disinterested study (eg.)  how does foreign law look like

 Enter first step

(2) Choice of laws to compare

- What should be compared?

(3) Collecting reference materials

- Why collect?

- How to collect?

+ General vs Specific research;

+ Ancient vs Modern legal regime

(4) Building up system of concepts

- Why?

- How?

(5) Writing a report on research object

- Why? (to grasp object of comparison)

- Requirements (objectively, independently)?

- Contents:

+ Description + Differentiation + Explanation

(6) Critical evaluation of research findings

- Foreign experience good/bad?

- Should learn/not learn from foreign

experience?

- How to adopt foreign experience (import in total/in part with alteration)?

Note: While using CL’s methods

- Up-to-date reference materials (Re.Ma.);

- Exactitude of Refferrence Materials:

+ study of primary/secondary reference materials;

+ study of primary Re.Ma In original language/orthodox translation version;

- Right understanding of legal terms, concepts employed in individual legal system

- Being aware of factors that result in simil.& diff.b/t LS (economic, political system; ideology; religion; history; geography…)