Cargando…
Practice and theory in comparative law /
What does doing comparative law involve? Too often, explicit methodological discussions in comparative law remain limited to the level of pure theory, neglecting to test out critiques and recommendations on concrete issues. This book bridges this gap between theory and practice in comparative legal...
| Clasificación: | Libro Electrónico |
|---|---|
| Otros Autores: | , |
| Formato: | Electrónico eBook |
| Idioma: | Inglés |
| Publicado: |
Cambridge ; New York :
Cambridge University Press,
2012.
|
| Temas: | |
| Acceso en línea: | Texto completo |
Tabla de Contenidos:
- Cover; PRACTICE AND THEORY IN COMPARATIVE LAW; Title; Copyright; CONTENTS; CONTRIBUTORS; ACKNOWLEDGMENTS; 1: Comparing law: practice and theory; Comparative law practice and theory: the 'missing middle'; Comparative law as disciplined practice; Questions and theories; Question-driven methodological choices; Theory-driven methodological choices; Comparative law as applied legal theory?; (Inter)disciplinarity; The 'internal perspective' and the turn to jurisprudence; The turn to social science; Bridging the disciplines; Functionalism and beyond; Moderate and refined functionalism.
- Neutrality and its limitsInteracting legal orders and 'dynamic comparisons'; Outlook and structure of this volume; Contributions and topics: a very short readers' guide; 2: Reflections on comparative law methodology
- getting inside contract law; Introduction; Preliminaries; 1. The starting-point; 2. The reconstruction; (i) The materials for reconstruction; (ii) The reconstruction process; 3. The comparison; Conclusion; 3: Reasoning with previous decisions; Introduction; The project; In search of a theory.
- Comparative study as an empirical ground for theory and a corrective of its hidden biasesConceptual distortions: 'case law technique', 'sources of law' and 'bindingness'; Illustration: are the common law and civil law tradition converging in their treatment of previous decisions?; A working definition of precedent; Conclusion; 4: Comparing legal argument; Introduction; Legal argument and the internal perspective; Characteristics of legal discourse as the basis for comparative method; Legal discourse and legitimization; The 'legitimization problematic' and the meaning of legal arguments.
- Studying the meaning of debates: the example from intellectual historyLegal discourse and relativity; Relativity of meaning: structuralism; Three dimensions of relativity: alternatives, criteria, dimensions; Comparison within systems: the example of reasoning by analogy; Local meaning, legitimacy and relative formality; Dialectical comparisons: shifting perspectives and levels of abstraction; Mediating abstraction and context: an example from the study of 'balancing'; Concluding observations: promises and limitations.
- 5: In search of system neutrality: methodological issues in the drafting of European contract law rulesIntroduction; Scope; What is system neutrality?; Types of European contract law; Can rules be system neutral?; The draftsperson; Classification; Structure; Interfaces; Drafting style; Deductive or inductive; Integrated or separated regulation; Generic descriptions or lists; Typical or exhaustive regulation; Does drafting style matter?; Drafting language; Strategies for achieving system neutrality; Occupying middle ground; Going up one level; Going down one level; Stepping outside.