European University Institute Library

Epistemology and Methodology of Comparative Law, edited by Mark Van Hoecke

eng

Epistemology and Methodology of Comparative Law

electronic resource

dictionaries

1088500148

edited by Mark Van Hoecke

ProQuest Ebook CentralEuropean Academy of Legal Theory series

Whereas many modern works on comparative law focus on various aspects of legal doctrine the aim of this book is of a more theoretical kind - to reflect on comparative law as a scholarly discipline, in particular at its epistemology and methodology. Thus, among its contents the reader will find: a lively discussion of the kind of 'knowledge' that is, or could be, derived from comparative law; an analysis of 'legal families' which asks whether we need to distinguish different 'legal families' according to areas of law; essays which ask what is the appropriate level for research to be conducted - the technical 'surface level', a 'deep level' of ideology and legal practice, or an 'intermediate level' of other elements of legal culture, such as the socio-economic and historical background of law. One part of the book is devoted to questioning the identification and demarcation of a 'legal system' (and the clash between 'legal monism' and 'legal pluralism') and the definition of the European legal orders, sub-State legal orders, and what is left of traditional sovereign State legal systems; while a final part explores the desirability and possibility of developing a basic common legal language, with common legal principles and legal concepts and/or a legal meta-language, which would be developed and used within emerging European legal doctrine. All the papers in this collection share the common goal of seeking answers to fundamental, scientific problems of comparative research that are too often neglected in comparative scholarship

Half Title Page; Half Title verso; Title Page; Title verso; Foreword; Contents; List of Contributors; 1. Legal Culture v Legal Tradition; 2. Legal Cultures and Legal Traditions; 1. A HISTORY OF 'CULTURE'?; 2. CULTURE AS A MEANS OF UNDERSTANDING; 3. THE CONSEQUENCES OF A CONCEPT OF CULTURE; 4. CONCLUSION; 3. Legal Epistemology and Transformation of Legal Cultures; 1. LEGAL POSITIVISM IN POLISH LEGAL CULTURE; 2. CARTESIAN EPISTEMOLOGICAL MODEL AND THE LEGAL POSITIVISM; 3. THE ORIGINAL POSITIVISM; 4. LEGAL POSITIVISM IN THE PROCESS OF TRANSFORMATION5. THE COGNITION OF THE LAW AND THE PRACTICE OF TRANSFORMATION6. THE DISCURSIVE VISION OF THE JURISDICTION; 7. PARTICIPATION IN LEGAL CULTURE; 4. Epistemology and Comparative Law: Contributions from the Sciences and Social Sciences; 1. INTRODUCTION; 2. FUNCTIONAL METHOD; 3. VIRTUAL FACTS; 4. DEGREES OF ACTUALITY; 5. EXAMPLE: MISTAKE IN CONTRACT; 6. STAGES OF LEGAL SCIENCE; 7. SCHEMES OF INTELLIGIBILITY; 8. COMPARATIVE LAW AS A HERMENEUTICAL EXERCISE; 9. COMPARATIVE LAW AS A STRUCTURAL EXERCISE; 10. COMPARING SYMMETRIES; 11. SOCIAL SCIENCES AND LAW; 12. CONCLUDING REMARK5. How to Make Comparable Things: Legal Engineering at the Services of Comparative Law1. BACKGROUND; 2. MAPPING THE COMPARATIVE LAW APPROACH ADOPTED IN THIS PAPER; 3. 'THE INTERGRATIVE FORCE OF PRIVATE LAW' ACCORDING TO MR. BANKOSCH AFER; 4. AGILE CONTRACT IN THE NEW ECONOMY; 6. Methodology and European Law - Can Methodology Change so as to Cope with the Multiplicity of the Law?; 1. METHODOLOGY OF STATE LAW AS A BLUE-PRINT FOR EC LAW?; 2. TOWARDS A 'LAW OF OPEN STATES' (U DI FABIO); 3. WHAT COULD A METHODOLOGY OF EUROPEAN LAW BE LIKE?; 4. TOWARDS A LEGAL METHOD WHICH COPES WITH DIVERSITY5. AN EXAMPLE FROM ENVIRONMENTAL LAW6. TOWARDS A CONCEPTION OF PRACTICAL LEGAL COMPARISON AND THE 'COMPETITION OF RULES'; 7. ON THE IMPORTANCE OF PROCEDURAL LAW FOR THE EMERGENCE OF AN 'ORDERING IDEA' OF EUROPEANISED ADMINISTRATIVE LAW; 8. OUTLOOK; 7. Comparative Law of Obligations: Methodology and Epistemology; 1. INTRODUCTION; 2. COURTS; 3. LEGISLATORS; 4. ACADEMIC WRITERS; 5. DEVELOPING A EUROPEAN PRIVATE LAW; 8. Codifying European Private Law; 1. CODIFICATION PAST AND PRESENT; 2. EUROPEAN CODIFICATION, POSSIBLE AND DESIRABLE?3. PRESERVING AND BROADENING THE LEGISLATIVE 'ACQUIS COMMUNAUTAIRE'4. THE ISSUE OF DEMOCRATIC LEGITIMACY; 5. FLANKING MEASURES NOT TO BE NEGLECTED; 6. BY WAY OF CONCLUSION: LEGISLATE EFFICIENTLY AND NOT IN HASTE; 9. Deep Level Comparative Law; 1. THE EPISTEMOLOGICAL PROBLEMS; 2. THE METHODOLOGICAL PROBLEMS; 3. DEEP LEVEL COMPARATIVE METHODOLOGY; 4. SOME METHODOLOGICAL CONCLUSIONS; 5. WHAT ABOUT HARMONISATION?; 10. NICE Dreams and Realities of European Private Law; 1. INTRODUCTION; 2. NATIONAL VERSUS EUROPEAN LEGAL INTEGRATION; 3. THE CULTURALIST APPROACH; 3. LEGAL FUNCTIONALISM4. CONCEPTUALISM