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an introduction
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an introduction
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Peter de Cruz, "Techniques of comparative law", in Comparative law in a changing world (London, 2007), pp. 219-249.
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quest for methodology methods
major pitfalls & perils
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major pitfalls & perils
linguistic & cultural
differences
terminological problems
objects of study
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comparability legal pattern bias exclusion &
ignorance
linguistic & terminological problems
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cultural differences between legal systems
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arbitrary selection of objects of study
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comparability in comparison
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viability of theory of a common legal pattern
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imposition of ones own legal conceptions
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the four law jobs
conict resolution adaptation & social change norm enforcement
social control
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omission of extra-legal factors
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general character
of comparative law
the quest for methodology
topics
suitability of comparative test of
functionality method requirements
subject matter macro v micro
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clarifying the general character of comparative law
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the subject matter of the comparison
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macro-comparison & micro-comparison
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comparative method: requirements
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the test of functionality
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comparative legal methods
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Kambas three-stage approach a blueprint
Kambas three-stage-approach
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the identication phase the explanatory phase
the descriptive phase
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the descriptive phase
norms concepts institutions socio-economic problems legal problems legal solutions
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the identication phase
similarities
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differences
the explanatory phase
resemblances dissimilarities
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no one single method applicable
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a blueprint
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1. Identify the problem. 2. Identify the foreign jurisdiction & its parent legal family. 3. Decide the primary sources of law & materials. 4. Gather & assemble the material relevant to the jurisdiction being examined.
5. Organise the material. 6. Provisinally map out the possible answers to the problem. 7. Critically analyse the legal principles. 8. Set out conclusions within the comparative framework with caveats & with critical commentary.
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comparative law in courts comparative law & legislator comparativism & the verdict case law in non-common law jurisdictions styles of judicial decision overriding general principles
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comparative law in courts
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a tool of law reform
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a tool of interpretation
sovereignty v uniformity of outcome
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comparison illuminate our understanding
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The discipline of comparative does not aim at a poll of solutions adopted in different countries. It has the different and inestimable value of sharpening our focus on the weight of competing consideration.
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functional use of foreign law
a tool of interpretation to look for solutions to promote a change to ll in a gap to discard an unsatisfactory solution
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the three phases
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discovering: what is found understanding: what is to be used applying: how far
certain practical considerations
language skills national insularity or pride: rule of proof;
common law as a whole
pressures: time & volume of work budget
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[A]ll judges cannot be expected to be comparatists, but it is their duty to consult those who are in a position to supply the information needed ...
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[It] cannot be right to attempt to construe acquiesced by reference only to its possible meaning at common law or equity.
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comparative law & legislator
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a tool of law reform
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a tool of interpretation
justication of comparativism & the verdict
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the authority of case law in non-common law jurisdictions
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interpreters v law makers
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lower courts v superior courts
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styles of judicial decision
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French German Swedish American
English
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the relevance of overriding general principles
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bona des/good faith good morals and public order custom
aequitas
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Administrative law? The subjects? Power allocation? The procedure? The instutions? The judicial control? Liability?
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What is administrative law?
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What are the subjects of administrative law?
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the allocation of powers
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administrative procedure
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institutions providing legal redress
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the judicial control of power
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liability of the administration
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conclusion
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