Comparative Law 1st edition By Uwe Kische ISBN 0198791356 978-0198791355

Part I: General Aspects of Comparative Law

Chapter 1. Introduction: What Is Comparative Law?

A. Doing Comparative Law: An Overview

I. Comparative Law and Foreign Law Studies

1. Determining the Relevant Law

2. Comparison and Evaluation

3. National Reports and General Reports

4. “Foreign Law Studies” Does Not Exist

II. Functional Comparative Law

III. Individual Comparison and Type Comparison

B. Comparative Law and Other Disciplines

I. Legal Translation

II. Legal History

III. Sociology of Law

IV. Legal Ethnology, Legal Ethology, Legal Anthropology

1. Legal Ethnology

2. Legal Ethology

3. Legal Anthropology

V. Private International Law (Conflict of Laws)

VI. Comparative Politics

C. Comparative Law as an Independent Discipline: A Never-Ending Story

I. A Play on Words

II. Method or Independent Legal Discipline?

1. An Insignificant Question

2. Investigating the Historical Relations Between Legal Systems

3. Microcomparison as Method, Macrocomparison as Science?

D. Modesty in Comparative Law

E. Comparative Law in Many Fields of Law

I. Universality of Comparative Law

II. Ideology and Comparative Law

1. From Impartiality to Value Judgments

a) Political Values in Public Law and Beyond

b) Political Character and Praesumptio Similitudinis

c) Human Rights as a Yardstick

2. Universality and Relativity of Human Rights

a) Human Rights as Western and Individualistic Values

b) Human Rights as Claims

c) The Struggle for Human Rights—Independent of Culture and Religion

d) Universality and Specific Circumstances

Chapter 2. Aims of Comparative Law

A. No Need for Justification

B. General Aims and Direct Uses of Comparative Law

I. Communication

1. Differences in (Legal) Culture

2. Cultural Imperialism in Law

3. Legal Practice

II. Significance for Legal Education

III. Improved Understanding of National Law

IV. Legislation and Comparative Law

1. Foreign Legal Influence in General

a) Typical Examples of Foreign Legal Influence

b) Influence Beyond National Law

c) Successes, Failures, and Open Questions

d) Foreign Legal Influence: Reasons and Empirical Importance

2. Legal Transplants

a) Typical Questions About Legal Transplants

b) Are Legal Transplants at All Possible?

c) Categories of Legal Transplants

3. Unification and Harmonization of Laws

a) Harmonization of Laws: Universal, European, Regional

b) Uniform Laws, Model Laws

c) Setting an Example in Europe: The Principles of European Contract Law

V. Interpretation and Comparative Law

1. Interpretation of Law with Foreign Elements: Comparative Interpretation in a Wider Sense

2. Interpretation of Genuinely National Law: Comparative Interpretation in a Narrower Sense

a) The Traditional Call for Comparative Interpretation

b) The Paradigm of Textual Evolution and the “Fifth Method of Interpretation”

c) Toward a Cultural and Comparative Interpretation

d) Again: The Problem of National Autonomy

e) Facilitating Interpretation in Difficult Cases: Classic Examples

3. Practical Problems and Solutions

VI. Comparative Law as a Source of Law: Public International Law and EU Law

Chapter 3. The Comparative Method

A. The Methodological Problem of Comparative Law: An Overview

B. The Starting Point: Functional Comparison

C. Criticizing Functional Comparison

I. Criticizing the Process

1. The Function in Law

2. The Process of Comparison

3. The Cultural Context

4. Neutrality

II. Criticizing the Background

1. Fixation on Unity

2. Positivism, Not Realism

3. Goal Definition

4. Isolation

III. Postmodern Critique

1. The Problem of Description and Self-Description of Postmodern Texts

2. Basic Concepts of Postmodern Thinking

3. Postmodern Criticism of Comparative Law

D. Alternatives to Functional Comparison

I. Variations of the Classical Approach

1. Determine, Understand, Compare: A 3-Phase Model

2. Practical Instructions in Eight Steps

3. The Theory of Legal Formants

a) Formants and the Multiple Layers of Legal Thinking

b) Of Preaching to the Choir, and its Dangers

4. Dialectical Comparison

a) Comparison as an Evaluative Circular Process

b) Dialectics as Reality

II. Partial Modifications

1. Comparative Law and Economic Analysis

a) Economic Analysis of Law

aa) Liability as an Example

bb) Basic Ideas and Basic Terminology of Economic Analysis

b) Economic Analysis in Comparative Law

c) Criticizing Economic Analysis

aa) Central Problems of Economization

(1) Of Fish and Smoke: Two Examples

(2) Homo Economicus and Thinking in Models

(3) Efficiency Criteria

(4) Monetization and Justice

(5) Treatment of Alternative Criteria

(6) Psychology, Didactics, and a Self-Fulfilling Prophecy

bb) Problems of an Economic Approach in Comparative Law

2. Conceptual Comparison

a) Modeling and Comparing: A Program in Two Phases

b) Importance and Influence of the Model

3. Statistical Comparison

a) Numerical Representation and Correlation of Law

b) The Devil in the Detail

aa) Reduction of Complex Facts to Simple Numbers

bb) Insinuating Scientific Precision

cc) Causalities

dd) Influences of Economic and Legal Policies

III. Different Aims

1. Legal Transplants

2. Comparative Jurisprudence

3. Legal Traditions

a) The Openness of Traditions

b) The Terminology of Legal Traditions

4. Big Issues

IV. And Postmodernism?

E. Toward a Contextual Comparison

I. Searching for Methods and Theories

1. In Search of the Recipe

2. Analytical Approach vs. Hermeneutics

a) Analytical and Historical Questions

b) Historical Questions and Hermeneutical Methods

c) Hermeneutics and Comparative Law

3. Comparative Law and Legal Methods

II. The Variety of Comparative Questions: A Typology

1. Classic Comparison: Comparing Problems and Comparing Concepts

2. Comparing the Operating Conditions of Law

3. Typical Sub-Questions

4. Voluntary Reference to Foreign Legal Ideas

5. Mandatory Comparisons

6. Abstract and Systematic Questions

III. Objectives and Limits of the Functional Method

1. The Essence of Functional Thinking and its Caricature

a) Functionalism: Self-Image and Perception by Others

b) Ignoring the Diversity of Cultures and Functions?

c) Fixation on Unity?

d) Neutral Perspective?

2. Limits of Functional Thinking

a) Limited Questions

b) Exaggerated Conclusions

3. Different Styles of Thinking

IV. Context Comparison as the Common Element

V. Unity in Diversity: A System of Mistakes in Comparative Law

1. Mistakes in Capturing Terms

a) Problems of Reading and Translation

b) Problems of Sources

c) Understanding a Term’s Content

d) Prior Understanding of Terms: The Significance

2. Ignoring Functional Equivalents

3. A Narrow Field of Vision

a) The Doctrinal Setting

aa) Relativizing Differences

bb) Typical Misinterpretations

b) The Cultural Setting

aa) Role of Law and Legal Institutions

bb) Legal Thinking and Legal Tools

c) Extra-Legal Aspects

4. Seeing Through National Lenses: Rule vs. Exception

5. Law in Books, Law in Action, and Law in Debate

VI. Writing a Comparative Law Study: Some Practical Remarks

1. Possible Structures of a Classical Comparative Study

a) Simple Juxtaposition and Comparison

b) Dovetailed Comparison

c) Description from a Native Legal Perspective

2. A Classic Way to Proceed

a) Finding a Topic

b) Reading and Familiarizing

c) Studying Foreign Sources

d) Differences, Similarities, and Preliminary Structures

e) Broadening the View

f) Final Structure and Writing a First Draft

Chapter 4. Legal Families, Legal Culture, and Context

A. The Idea of Legal Families

B. Some Approaches to Legal Families

I. Conventional Classifications

II. Unusual Classifications

III. Hierarchical Classifications

IV. On Terminology: Legal Families, Legal Systems, Legal Groups

C. Sense and Nonsense of Classifications

I. Classification as a Scientific Task?

II. Choosing Foreign Legal Systems and Saving Effort?

III. Understanding the Context

IV. Didactics

V. Further Points of Criticism

VI. Practical Importance of Legal Families

D. The Debate on Legal Culture

I. The Comparative Starting Point

II. The Debate in Legal Sociology

1. Multitude of Definitions

2. The Dispute about the Purpose

a) Theory vs. Pragmatism

b) Further Problems of Legal Culture

III. Consequences for Comparative Law

1. Different Interests and Different Approaches in Legal Sociology

2. The Specifically Legal Approach

E. A Pragmatic Contextual Perspective

I. Context, Not Culture

II. Exemplary, Not Ideal-Typical Approach

III. Elements of Context

1. Relative Importance of Historical Aspects

2. Non-Legal Elements and Their Determination

3. Multitude of Factors

Part II: The Contexts of Legal Systems

Chapter 5. The Context of Common Law

A. Common Law as Case Law

I. The Notion of “Common Law”

II. The Classic Core of Common Law

1. Development by Cases

a) Inductive Thinking: Of Colorful Walls

b) Legal Development in Common Law: The Snail in the Bottle

2. Precedent and Distinguishing

a) Ratio Decidendi and Obiter Dictum

b) Hierarchy of Courts

c) Distinguishing

d) Persuasive Precedent

3. The Role of Statutes

4. The Role of Academic Literature

III. The Common Law Mindset

1. Common Law as Judge-Made Law

2. Cases as Arguments

3. Procedural Orientation

4. System, Abstract Reasoning, and Law

5. Law and Fact

B. Historical Development

I. Formation of the Common Law After 1066

II. The Royal Courts in Westminster

III. Writs

1. Characteristics and Creation of Writs

2. Procedural vs. Substantive Thinking

3. End and Continuing Effect of Writs

IV. Equity

1. Basic Idea: Equity as a Question of Conscience

2. Typical Rules of Equity

3. Practical Problems of Equity

4. Equity Today

C. Courts and Jurists

I. Court Structure

1. England: Complexity and Modernization

a) Tribunals

b) Magistrates’ Courts, County Courts

c) Crown Court

d) High Court

e) Court of Appeal

f) House of Lords and Supreme Court

2. USA: Federal Structure

a) State Courts and Federal Courts

b) Hierarchy of Federal Courts

aa) Federal District Court and Court of Appeals

bb) The Appeal Between Fact and Law

cc) U.S. Supreme Court

c) Federal and State Jurisdiction

II. Legal Education

1. England

a) Between University and Practice: The Historical Development

b) University and Practical Phase: Legal Education Today

c) Legal Education and Social Justice

2. USA

a) Law School Education and Bar Exam

b) Academic Character of the Best Law Schools

c) The Case Method: Some Aspects

III. Judges and Lawyers

1. England: The Power of Tradition

a) Judges Between Tradition and Change

aa) The Misleading Classic Picture

bb) The Style of Judgments

cc) The Way to the Bench

b) Barrister and Solicitor

aa) Traditional Role Allocation

bb) Hesitant Erosion of Differences

cc) Queen’s Counsel

2. USA: The Modern Environment

a) Lawyers: Serving the Client

b) Judges: The Political Dimension

D. The Common Law Process

I. Adversarial Process

1. Classic Form

2. Critique and Change

3. Adversarial vs. Inquisitorial Process?

II. Jury

1. Fact-Finding and Law-Finding Function of the Jury

2. Historical Development of the Jury

3. The Jury Between Free Decision and Legal Entrenchment

a) Decision Without Reasons

b) The Jury Instructions

c) Possibility of Legal Review

d) Jury Equity

4. The Jury: Rooted in its Legal Context

E. Typical Aspects of Substantive Law

I. Statutory Interpretation

1. Statutory Interpretation as a Central, Controversial Problem

2. Classic Rules of Interpretation

3. Doubtful Use of Legislative History

4. The Otherness of Common Law Statutory Interpretation

II. Real Property

1. Feudal Roots of Language and Thinking

2. Modern Aspects of Real Estate Law

3. Formalistic Structure

4. The Embarrassing Rule Against Perpetuities

III. Trust

1. Basic Idea of the Trust

2. Flexibility of the Trust

3. Fictional Trusts as a Pragmatic Tool

IV. Consideration

1. Consideration and Form

2. Complexities and Contradictions

3. The Opponent: Promissory Estoppel

V. Public Law and Private Law

1. The Lack of Administrative Law as a Myth

2. Historical Background: Star Chamber, Dicey, Laissez-Faire …

3. The Otherness of Administrative Law Under Common Law

a) Private Law Elements and the Lack of Administrative Courts

b) Substantive Peculiarities

VI. Balancing Civil Rights: Levels of Scrutiny

1. Rational Basis, Strict Scrutiny, Intermediate Scrutiny

2. Prediction of Outcome by Standard of Review

VII. Judicial Review of Statutory Interpretation by Agencies

1. The Chevron Test

2. Openness of the Chevron Test

F. English or American?—Marked Contextual Differences

I. Substantive and Institutional Differences

1. Differences in Substantive Law and Their Importance

2. Institutional and Procedural Differences

3. Differences Based on Federal Structure

II. In Particular: Constitutional Law

1. Prominent Role of American Constitutional Law

2. Constitutional Law in England?

a) Significance and Existence of English Constitutional Law

b) Sovereignty of Parliament in Retreat

III. England Under European Influence

IV. Jurisprudential Basis: U.S. Legal Realism

1. “We Are All Realists Now”

2. Lack of Importance in England

G. Common Law in the Rest of the World

I. Between Anglo and American: The Continuum of Common Law

II. Some Former Colonies

1. Canada

2. Australia

3. New Zealand

III. And Scotland … ?

Chapter 6. The Basic Context of Civil Law

A. Civil Law as a Unitary Context?

B. Legal Thinking in Civil Law

I. Where Does the Law Come From?—Sources of Law

1. Pre-Eminent Role of Statutes

a) Positivist Attitude

b) Statute, Law, and Democracy

c) No Mechanistic Concept of Statutory Law

d) Varying Notions of “Statute”

2. The Insignificant Rest

a) Customary Law

b) Further Sources of Law

3. And the Judge?

II. Law as a System

1. The Idea of Codification

a) Are Codes Typical for Civil Law?

b) What Is a Code?

c) Different Concepts of Code

aa) Differentiation According to the Degree of Reform

bb) Differentiation Between Civil Law and Common Law Codes

d) The Structure of a Code: Two Examples

aa) France and the Code Civil

bb) Germany and the BGB

cc) The Language of BGB and Code Civil

2. Systematization and Conceptualization

a) Unification of Concepts

b) General Part, Abstract Mindset, Conceptual Pyramids

c) Mental Barriers, Quick Grasp, Language of Statutes

3. French Pragmatism

a) Similarities from an Outside Perspective

b) Differences from an Inside Perspective

III. Statutory Interpretation

1. The Aim of Interpretation: Objective and Subjective Theories

2. Methods of Interpretation

a) The Classical Canon of Interpretation

b) Methodological Problems and Repercussions

b) Practitioners’ Nonchalance

3. Begriffsjurisprudenz and Its Successors

4. French Parallels

a) Similar Content, Different Terminology

b) The Classical Debate: Ecole de l’Exégèse vs. Libre Recherche Scientifique

c) Today’s Reality: Methodological Variety

aa) Oscillating Methodology

bb) Additional Methods of Interpretation and Practical Approaches

IV. Applying the Law in Practice

1. Law and Fact

2. Subsumption

a) Basic Structure of Subsumption

b) Academic Controversies and Subsumption

c) Subsumption as a General Way of Thinking

d) Definitions as Distilled Legal Knowledge

3. The Legal Opinion Technique

a) How to Use the Legal Opinion Technique: An Overview

b) Legal Opinion Technique as a General Way of Thinking

c) Fixed Templates as Distilled Legal Knowledge

d) Formative and Practical Impact of the Legal Opinion Technique

4. The Technique of Relation

a) How to Write a Relation

b) Importance of Thinking in Terms of a Relation

5. France: Similar Mindset, Different Realization

a) Syllogism

b) Pragmatic Solution Instead of Subsumption and Legal Opinion Techniques

c) Qualification as Interface Between Law and Facts

V. Legal Authorities

1. Judicial Decisions

a) No Binding Precedent

b) Style of Judgments

aa) France

bb) Germany

2. The Role of Legal Literature

a) Types of Literature: Commentary, Treatise, Journal …

b) Influence of the Literature

VI. Historical Development

1. France

a) Customary Law and Roman Law

b) Genesis of the Code civil

c) Particularities and Critique of the Original Code civil

d) Other Napoleonic Codes

2. Germany

a) The Fragmentation of German Law

b) The Controversy over Codification

aa) Early Codifications

bb) Thibaut vs. Savigny

cc) Historical School, Germanists, and Pandectists

c) The Creation of the BGB

d) Further Codifications

C. Courts and Jurists

I. Court Structure

1. Germany

a) Court Branches

b) First Instance, Appeal, Revision: Administrative Courts as an Example

c) Special Features of Civil and Criminal Procedure

d) The Federal Constitutional Court

2. France

a) Courts

b) Appeal and cassation

c) Court Hierarchy in Ordinary Courts

aa) Civil Procedure

bb) Criminal Procedure

d) Court Hierarchy in Administrative Procedure

e) Constitutional Jurisdiction

aa) The Conseil d’État as a Constitutional Court?

bb) The Conseil Constitutionnel

II. Legal Education

1. Germany: The “Uniform Jurist”

a) Course of Studies

b) Importance of Grades

c) Content and Form of Studies

d) Private Tutoring

e) Practical Education: The Referendariat

f) Critique of Legal Education

2. France: Education in Stages

a) Course of Studies

b) Content of Studies and Significance

III. Judges and Attorneys

1. Germany: The Direct Start

a) Judges: Career and Reputation

b) Attorneys and Notaries

2. France: Specialized Training and Recruitment

a) Training of Judges and the Concours

b) Training of Attorneys and the Unification of Legal Careers

IV. Judicial Procedure

1. Courts of First Instance as a Role Model

2. Some Typical Features of German Civil Actions

a) Paramount Role of the Judge

b) Settlement

c) Principle of Evidentiary Control and Evidentiary Proceedings

d) Costs

3. Administrative and Criminal Actions

a) Administrative Actions and Examination ex Officio

b) Special Features of Criminal Actions, and the Deal

4. The French Investigating Judge

D. Typical Legal Institutions

I. The German Principle of Abstraction

II. The French Cause

1. Basic Idea of the Cause

2. What is the Cause?

3. Functions and Critique of the Cause

III. Good Faith

1. Practical Results of Good Faith

2. Good Faith as an Invitation to Judicial Law-Making

IV. The Elements of a Criminal Offense: Constituent Elements, Unlawfulness, and Culpability

1. Basic Template and Application

2. Theoretical and Practical Significance

V. Judicial Review of Administrative Acts

1. Differentiation Between Discretion and Indeterminate Legal Concepts

2. Independent Judicial Review of Indeterminate Legal Concepts

3. Limited Judicial Review of Discretion

VI. Human Dignity

1. Basic Idea of Human Dignity

2. Profound Implications of Human Dignity

3. Concrete Normative Content of Human Dignity

VII. Limits of Basic Rights: Proportionality

1. Area of Protection, Infringement, Limits

2. The Structure of Proportionality

3. Far-Reaching Significance of Proportionality

VIII. Constitutional Complaint and Concrete Judicial Review

1. Scope of Constitutional Complaints

2. Constitutional Complaints and the Status of the Federal Constitutional Court

3. Constitutional Law and General Law: A Difficult Differentiation

4. Interaction with Concrete Judicial Review

Chapter 7. Variety of the Civil Law Context

A. The Rough Categorization of Other Western European Countries

I. Austria and Switzerland

1. German Context—With Reservations

2. Austrian Constitutional Culture: Fragmentation, Flexibility, and Hans Kelsen

3. Swiss Constitutional Culture: Volksrechte, Federalism, Concordance

II. Spain

1. Proximity to French Private Law: Historical Background and Present Limits

2. Declining French Influence in Administrative and Criminal Law

3. The German Model in Constitutional Law

a) Similarities with German Constitutional Law

b) The Independence of Spanish Constitutional Law

4. In Particular: Statutes of Autonomy and Monarchy

B. Eastern Europe: Differentiations After Transformation

I. The Simplistic Image of Transformation

II. The Complex Reality of Transformation

1. Repeated Transformations

2. Hastily Drafted Statutes

3. Remnants of “Socialist” Thinking

4. Difficulties in the Application of Law

a) Exaggerated Formalism

b) Leadership and Flinching from Decisions

c) Problems in Implementing the Law

d) Initial and Continuing Legal Education

5. The Influence of Old Elites

6. Legal Nihilism

7. Legal Literature and Law in Action

III. Three Groups Within the Eastern European Context

1. Russia as an Independent Context

a) Russian Legal Nihilism and its Consequences

b) Self-Image and “Russian Values”

c) The Russian Context in Other Countries

2. The Eastern EU Member States: The European Prospect

3. Eastern European Countries Outside the EU: Slow Development

C. Scandinavia: Nordic Legal Thinking

I. Historical Background

1. Of Marriage and Divorce: Building States in Scandinavia

2. External Legal Influences

3. The Welfare State

II. Special Features of the Scandinavian Context

1. Lack of Codification

2. Legal Sources

3. Scandinavian Cooperation

a) Meeting of Nordic Jurists and the Nordic Council

b) Common Linguistic Ground

c) Decreasing Significance of Scandinavian Cooperation

4. Distinctive Characteristics of Nordic Jurists and Nordic Legal Thought

a) The Advantage of Small Numbers

b) Scandinavian Pragmatism: Lagom

5. Reluctant Litigators?

III. Specific Legal Institutions

1. The Ombudsman

a) Variety of Ombudsmen

b) The Basic Model of the Swedish Justice Ombudsman

c) Ombudsman and Oversight of the Administration

2. Principle of Open Government

3. Constitutional Law

a) Limited Importance of Constitutional Law

b) Influence of the Welfare State and Modern Contrary Tendencies

c) Weak Judicial Review of Laws

IV. Scandinavian Legal Realism

1. Scandinavian Legal Realism as a Philosophical Project

a) A Difficult Topic

b) A Tentative Approach

aa) Rights as Mystical Concepts

bb) The Struggle Against Natural Law

2. Practical Significance Today?

3. Relationship with U.S. Legal Realism

V. Scandinavia as Part of the Civil Law Context

D. Beyond Europe: Latin America

I. Latin America as Part of the Civil Law Context

1. Similarities and Differences in Context

2. Early Pioneers: 19th Century Codifications

3. External Influences

4. Modified Views

a) A Spanish-Portuguese Legal Family?

b) Decreasing Importance of Codification?

II. Constitutional Law and Latin American Self-Image

1. France and Europe as Historical Models

2. Independent Development

3. The End of Military Dictatorships: A Change of Paradigm

a) All Generations of Fundamental Rights

b) Judicial Enforcement of Fundamental Rights

III. “Obeying, but Not Following”: The Reality of Law

1. Law in Action vs. Law in Books

a) Basic Attitude

b) An Example: “Constitutional Poetry”

c) Example: Barrios and the Informal Sector

d) Inefficient Courts

2. Deficient Compliance: Historical, Political, and Social Backgrounds

IV. Legal Pluralism: The Ascent of Indian Rights and Indian Law

1. Colonization—Assimilation—Integration—Pluralism

2. Indian Rights and the Degree of Their Recognition

3. Evaluation and Enforcement of Protection

4. The Significance of Indian Law

a) Constitutional Protection of Indian Law: Problems and Limits

b) Resistance in Practice

c) Substantive Content of Indian Law

aa) Comprehensive and Flexible Character of Indian Law

bb) The Example of Az Mapu

E. Convergence of Civil Law and Common Law?

I. The Fundamental Dispute About Convergence

1. Convergence Is Obvious

2. Convergence Does Not Exist

3. An Overrated Debate

II. The Variety of Convergence Hypotheses

1. A Question of Perspective

2. Convergence from an Historical Perspective

3. Convergence from a European Perspective

4. Convergence of Specific Legal Rules and Fields of Law

5. Convergence of Legal Contexts

Chapter 8. The Context of African Law

A. Plurality as the Hallmark of African Law

B. State Law

I. Outward Appearances

1. Common Law and Civil Law in Africa

a) Colonization and Independence

b) A Special Case: South Africa

c) Current Influence of Parent Legal Orders

2. Influence of Islamic Law

3. African Cooperation: OHADA

II. Problems of Practical Effectiveness

1. Failure of the Legal System

2. Background

a) Democratic Culture and the State in Africa

b) Working Environment and Quality of the Judiciary

C. Traditional Law

I. A Functioning Law and Legal Awareness

II. Concepts of Traditional Law

III. Development of Traditional Law: An Overview

1. Basic Character of Traditional Law

a) An Oral Law

b) Creating Traditional Law

c) Adaptability and Controversial Content

d) Simplicity and Complexity

e) Inequalities

f) Legal Asymmetries

g) Dispute Resolution

2. Tribal Law in Colonial Times and After Independence

3. Renaissance of Traditional Law

IV. Typical Contents of Traditional Law

1. Ubuntu

2. Imbizo

3. Marriage and Dowry

4. Procedural Aspects

5. Excursus: Witchcraft

a) Widespread Belief in Witchcraft

b) Witchcraft and Criminal Law

c) Importance of Superstition in General

V. Traditional Law Between Urban and Rural Areas, Majority and Elites

1. Multilayered and Complex Distribution in Society

2. In Particular: Traditional Law in Urban Areas

VI. Integration of Traditional Law into the State

1. Degrees of Recognition

a) Basic Governmental Attitudes Toward Traditional Law

b) A Typical Problem: Traditional Criminal Law

c) Recognition of Traditional Dispute Resolution

2. State Influence on Traditional Law

3. Traditional Law and Modern Human Rights

a) An Unsolvable Conflict of Principles?

b) Example: Equal Rights in Inheritance

Chapter 9. Contexts in Asia

A. Asia’s Variety

I. What is Asia?

II. Forming Groups—Open to Development

B. China: The Ruling Party

I. Historical Development of Chinese Law

1. The Era of Traditional Chinese Law

a) Confucianism and Legalism

aa) Confucian Ethics

bb) Li Trumps Fa

cc) Fa Instead of Li: The Legalist Alternative

b) The Development of Imperial Law Between Confucianism and Legalism

aa) The Integration of Li into Fa

bb) The Tang Code: A Sophisticated Culture of Legislation and Commentaries

c) Important Aspects of Traditional Chinese Law

aa) Lack of Private Law

bb) Reduced Governmental Law Enforcement

cc) Judges as Administrators

2. The Time of Western Reforms

a) Opium Wars, Unequal Treaties, and Law Reform

b) Revolution in Legal Thinking

c) Effectiveness of Reforms

3. Communist Rule Under Mao

a) The Early Years: From Acceptance to Rejection of Law

b) The Cultural Revolution

4. China After Mao

II. Superficial Legal Structures: An Overview

1. Government Structure

2. Court System

3. Sources of Law

4. Ties to Civil Law Thinking

III. Deeper Legal Structures

1. Party and State

a) The Party as Primary Power

b) Parallel and Interconnected Structures in Party and State

2. Beyond State Legislation

a) Political Norms

b) Party Norms

c) Areas of Weak Normativity

3. Socialist Foundations

4. Centralized Statutory Interpretation

a) Interpretive Authority of the Supreme People’s Court

b) Functional and Practical Doubts

5. Dependence of the Judiciary

a) Dependence of Judges

b) Dependence of Courts

c) Autonomy of the Judiciary

6. Influence of Traditional Chinese Thinking?

a) Destruction of Cultural Traditions

b) No Integration of Legal Traditions

7. Multiple Levels of Authority in Urban and Rural Areas

8. Corruption

9. Trust in Alternative Mechanisms?

a) Forms and Empirical Importance of Alternative Dispute Resolution

b) Alternative Dispute Resolution and Chinese National Character

IV. The Long March Toward Rule of Law?

1. Two Basic Positions

2. Fazhi vs. Fazhi: The Linguistic Basis

3. What Is It All About?—The Concept of Rule of Law

a) Simple and Ambitious Concepts of Rule of Law

b) Rule of Law or Rechtsstaat?

c) Positive Connotation of Rule of Law

4. Sequencing

5. Hope Remains …

C. Japan, Taiwan, South Korea: The Southeast Asian Way on a Civil Law Basis

I. Independence of the Southeast Asian Context

II. Historical Westernization of Law

1. Decisive Influence of Continental European Law

a) Japan: Breaking with Legal Tradition

aa) Traditional Japanese Law in Historical Context

bb) Modernization and the Meiji Constitution

cc) Renewal in Criminal and Private Law

b) Taiwan: Continuity in Change

c) Korea: Annexation and After-Effects

aa) China’s Early Influence

bb) Japanese Annexation

cc) The German turn after independence

2. After World War II: Influence of U.S. Law

a) Lack of Importance in Korea

b) Some Influence in Taiwan

c) Tensions in Japan

d) Significance of Legal Education and General Legal Thinking

III. Confucianism and the Reluctant Litigator

1. Cultural and Political Background

2. Debates About the Reluctant Litigator: The Focus on Japan

3. Empirical Evidence: Judicial Caseloads

IV. Some Southeast Asian Characteristics

1. Traditional Values

2. Weighing of Interests

3. Legal Education

V. Constitutional Law Attitudes

1. The Development of Democracy from Dictatorial Roots

2. Powerful Constitutional Courts

3. Civil Rights vs. Conservative Traditions

4. Social Change and Legal Awareness

5. Between Western Influence and Southeast Asian Characteristics

D. India: Common Law and Hinduism

I. Indian Law Between Reality and Romanticism

II. Indian Common Law

1. Historical Development

a) Presidency Towns and Mofussil

b) The Codification Movement

2. Common Law Thinking in Legislation and Adjudication

3. The Importance of Law in India

a) The Reputation of Jurists

b) The Pugnacious Supreme Court

aa) Who Is Master of the Constitution?

bb) Parliament and Supreme Court Today

cc) The Supreme Court as Legislator

c) Difficulties of Law in India

aa) Law and Social Inequalities

bb) Law and Social Change

cc) Reactions: Legal Aid and Public Interest Litigation

dd) Inefficiency of the Courts

4. Religious Family Law Today

a) Codified Personal Statute

b) Customary Law and Judicial Decisions

c) Remnant of Traditional Law: Joint Family

d) Hindu Family Law as Subsidiary Personal Statute

III. Traditional Hindu Law

1. Dharma, Vedas, and Smritis

2. Sadachar

3. Commentaries, Digests, and Legal Schools

4. Caste System: Varna and Jati

5. The Faded Potential

E. Indonesia: Pluralism in a Multiethnic State

I. History: The Variety of Influences

1. Pre-Colonial Times: The Laws of Java

2. Colonial Times: Dutch Rule

3. Independence: The Long Way to Democracy

II. Indonesian Law Today

1. State Law in the Context of Civil Law

2. Adat

a) Content of Adat Laws

b) Adat Between Tradition and Modernity

3. Islam

a) Islamic Law Under State Influence

b) The Fight About the Seven Words

III. Law’s Difficult Position

1. Contradictions and Uncertainties in State Law

2. Inefficiency of the Courts

3. Corruption

Chapter 10. The Context of Islamic Law

A. Classical Islamic Law: The Fundamentals

I. Divine Revelation and Human Elaboration

II. On Words: Islamic Law, Sharia, Fiqh

III. Legal Sources in Sunni Islam: Usul al-Fiqh

1. The Divine Foundation: The Koran

2. The Life of the Prophet: Sunna and the Hadiths

3. Consensus (Ijma)

4. Analogy (Qiyas)

5. General Welfare (Istihsan)

6. Continued Existence (Istihab) as a Rule of Evidence

7. Integration of External Law, Esp. Customary Law (Urf  )

8. Other Secondary Sources

9. Interaction Between Sources and with Tafsir

IV. The Classical Schools of Islam

1. The Four Schools of Sunni Islam

a) Hanafites

b) Malikites

c) Shafiites

d) Hanbalites

2. Shiite Islam

a) The Shiite Secession

b) The Jafari School

V. Islam and Change: Ijtihad Today

1. The Classical Opinion: The Door Is Closed

2. What Is Ijtihad?

3. The End of Ijtihad: Consequences

4. The Opponents’ View: The Door Is Open

a) Nobody Has Closed the Door

b) Hanbalites and Shiites as Classical Opponents

c) Modern Ijtihad

aa) Reformists and Modernists

bb) Critical Reassessment

d) Eclectic Critique and Imaginary Law

5. Change Without Ijtihad

VI. The Judiciary in Islam

1. “Kadi Justice”

2. Tasks and Role of the Kadi

3. Qualifications of the Kadi

4. Procedural Law

5. The Mufti as Legal Expert

6. Manuals for Legal Practice

B. The Contents of Islamic Law (Fiqh)

I. The Five Categories of Legal Consequences

1. Legal, Moral, and Religious Aspects of the Categories

2. Wajib and Fard: The Obligatory

3. Haram: The Forbidden

4. Mandub, Makruh, and Mubah as Intermediate Categories

5. Complex Implications

II. Aspects of Family and Inheritance Law

1. Dowry (Mahr)

2. Shiite Temporary Marriage (Mut’a)

3. Divorce (Talaq)

4. Polygamy

5. Wives’ and Daughters’ Share of Inheritance

III. Criminal Law

1. From Hadd to Tazir: The Narrow Field of Application

2. Restricting Severe Hadd Punishments: The Example of Theft

3. Filling the Gaps Through State Law: Tazir

4. The Critique of Islamic Criminal Law

a) Criticism Based on Western and Human Rights Values

b) Islamic Defense

c) Islamic Reform in Theory and Practice

5. Tendencies Towards a Fundamentalist Re-Islamization

6. Apostasy as an Instrument of Control

IV. Islamic Finance and Banking

1. A Promise of Justice

2. Prohibition of Interest, and Possible Evasions

3. Example: Islamic Credit Agreements

4. Sharia Conformity: Certification and Risk

C. Islamic Law in Modern Countries

I. Colonial Imprints

II. Legislation According to Traditional Islamic Law: Siyasa and Qanun

III. Strict Implementation of Islamic Law in the State: Saudi Arabia

1. Wahhabism

2. Koran and Sunna as Applicable Law

3. Position of State Legislation

IV. Primacy of State Law Between Self-Assertion and Retreat

1. The Many Ways of Islamic Law

2. Islamic Family and Inheritance Law: Codification and Reform

3. Islamic Law as Inspiration for Legislators and Judges

4. Islamic Law of Higher Rank

a) Integration of Islamic Law into the Constitution

b) Legal and Practical Significance of Contradiction Clauses and Source Clauses

c) Which Islamic Law?

d) The Example of Egypt

e) Islamization of the Constitution?

D. Excursus: Other Religious Laws

I. Jewish Law: The Power of Debate

1. A Layered Model of Law

a) Torah and Mishnah

b) Talmud

c) Post-Talmudic Sources: Commentaries and Codifications

2. Bound by God, Changed by Men: The Schools

3. Jewish Law and State Law

4. Specific Features of Jewish Law

5. For Example: The Rejection of Polygamy

6. Jewish Law in Israel

II. Canon Law: The Slow Retreat

1. Historical Importance

2. Relationship Between Canon Law and State Law

3. Divine Law and Human Law

4. Church Law Today

5. Canon Law in Comparison

Chapter 11. Contexts of Transnational Law

A. Comparative Law Beyond the State

B. The Context of Public International Law

I. Classic Links Between Public International Law and Comparative Law

II. Public International Law as an Object of Comparative Law

III. Specific Features of the Public International Law Context

1. Political Influence and Lack of Centralization

2. Sources: Consensual Lawmaking and “Soft Law”

3. Limited Legal Personality for Individuals

4. Indirect Law Enforcement

5. Processes of Constitutionalization and Differentiation

6. Independence from Civil Law and Common Law Contexts

C. The Context of European Union Law

I. EU Law in Comparative Perspective: Between Familiar Ground and New Frontiers

II. In Search of a Context of EU Law

1. The Debate About a European Legal Culture

2. EU Law and National Contexts

3. Pluralism of EU Law

III. Some Specific Traits of Supranational EU Law

1. Perspectives of European Policy: Of Romantics, Skeptics, and Technicians

2. Federal Dovetailing

3. Democratic Deficit, Institutional Balance, Market

4. The European Court of Justice: Apodictic Motor of Integration

5. Vast Expanses: Substantive EU Law

IV. Beyond EU Law

D. The Context of Lex Mercatoria?

I. Lex Mercatoria: The Law of International Economic Relations

II. Existence and Content of Lex Mercatoria: The Fundamental Debate

1. Lex Mercatoria as a Legal Order: Theoretical and Practical Problems

2. The Multitude of Theories on Lex Mercatoria

III. Lex Mercatoria and Comparative Law

Index