Presentation on theme: "THE METHODOLOGY OF SOCIAL SECURITY LAW COMPARISON AND LANGUAGE by prof.dr. Danny PIETERS (Rome, November 12, 2009)"— Presentation transcript:
THE METHODOLOGY OF SOCIAL SECURITY LAW COMPARISON AND LANGUAGE by prof.dr. Danny PIETERS (Rome, November 12, 2009)
1.Introduction Underdeveloped social security law comparison Little attention of law comparison Few methodological works: Max Planck Institut für ausländisches und internationales Sozialrecht RUESS (K.U.Leuven) Special attention for linguistic issues and problems of translation
2. Functions Quality is in function of goals Goals of social security law comparison: - inspiration to solve issues other social security systems have been or are also being confronted with - the facilitation of social security co-ordination - the facilitation of the harmonisation or convergence of social security systems - the exploration of the possibility to develop a common law / ius commune of social security - the development of a universal scientific conceptual framework to deal with social security issues
3. The relation social security and social security law comparison Requires special attention as social security law is young branch of law Assumption: as the study of social security law will qualitatively grow, this will positively affect social security law comparision; also social security law comparison will contribute to the development of a common European social security legal understanding, which in itself will advance and consolidate the position of social security law as a branch of law
3. The relation social security and social security law comparison Postulation: social security law comparison cannot exist without social security comparison and social security comparison cannot exist without social security law comparison.
3. The relation social security and social security law comparison social security law comparison cannot exist without social security comparison Unemployment insurance for self-employed Defining work incapacity percentages
3. The relation social security and social security law comparison social security comparison cannot exist without social security law comparison Comparing benefits for incapacity for work Comparing social protection expenditure
4. Exogenous approach The exogenous approach = observer and the observed should be independent. The concepts, language, questions and statements have to be formulated using words, concepts, etc. which are coming from outside (exo-geneous) the legal orders submitted to the comparison.
4. Exogenous approach - easier when dealing with functional comparison - Policy driven comparison, e.g. equality men and women but always remain alert - How to defineconcepts "medical care, "decent standard of living", "means test"
4. Exogenous approach More difficult if the object of comparison is comparing legal concepts and institutes, legal remedies, etc. Comparing social fundamental rights Comparing the concept of work incapacity Comparing control on soc.sec.administration Comparing the constitutional competence distribution concerning social security
4. Exogenous approach - Also the structure of the research (questions) requires exogenousity - The challenge of no answers - Importance of abortion or euthanasia for social security - The challenge of too complex question - German conceptual framework
5. System internal security law comparison = not merely establish the differences and similitude between the legal arrangements compared but also compare the relation between the relevant elements within each of the compared systems Social fundamental rights Incapacity for work concepts Old age pensions for self-employed
6. The danger of an ethnocentric approach - Starting from ones own system and determining from the outset the results of the comparison - quick law comparison - the best soc.sec. system of the E.C. - Maintain the ethics of law comparison - Comparing the incapacity for work concept
6. The danger of an ethnocentric approach - Dangers of using international legal concpetual framework - Equal treatment of men and women - and again … the linguistic dangers
7. The importance of working on original material - Preference for primary sources, but also secondary national sources are useful - Caution with materials produced within other law comparison - Beware of schysophrenic sources …and the need to lean on (scarce) earlier research
7. The importance of working on original material Remains also the linguistic problem Practical ways to overcome problems: - working with a multilingual team - using national reporters, but attention with questions and answers and - build in testing the comparative results -experience of MPI and RUESS
8. Encouraging conclusion Principles for perfect social security law comparison or translation Perfection is not possible, but needs to be pursued Thus: progress is always possible!