Cje Lecture II INTRODUCTION TO COMPARATIVE LAW Criminal Law I

Name: Cje Lecture II INTRODUCTION TO COMPARATIVE LAW Criminal Law I
Uploaded: 2017-08-11T19:54:41+00:00
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Description: Cje Lecture II INTRODUCTION TO COMPARATIVE LAW Criminal Law I

Cje Lecture II INTRODUCTION TO COMPARATIVE LAW Criminal Law I
Karolina Kremens, LL.M., Ph.D. Wojciech Jasiński, Ph.D. Department of Criminal Procedure Faculty of Law, Administration and Economics University of Wrocław

INTRODUCTION TO COMPARATIVE LAW
Lecture II INTRODUCTION TO COMPARATIVE LAW SCOPE OF THE LECTURE Concept of Comparative Law Functions and Aims of Comparative Law Method of Comparative Law

CONCEPT OF COMPARATIVE LAW
INTRODUCTION what is comparative law? law as an object comparison as the process comparison is made between different rules in a single legal system but international factor should be a part of that process COMPARATIVE LAW – comparison of the different legal systems in the world

INTRODUCTION the beginning of the comparative law world exhibition in Paris in 1900 congresses accompanying International Congress for comparative law founded by French scholars – Edouard Lambert & Raymond Saleilles strong faith in progress main idea: development of a common law of mankind – the world law must be created and comparative law will do it in some time

INTRODUCTION the beginning of the comparative law Edouard Lambert idea: comparative law is about to resolve the accidental and divisive difference in the laws of the people it is not the political, moral or social qualities that shape the law but historical accidents all countries should use one world law which has to be established through the comparative law method

INTRODUCTION the continous development of comparative law abondonment of the idea of progress and world law current position: better knowledge of the field established methods comparative law usefull and necessary the comparative law refreshes and enriches the study of the native law

OBJECT OF COMPARISON macrocomparison comparing the spirit and style of different legal systems, the methods of thought and procedures they use what might be compared: different techniques of legislation styles of codification method of statutory interpretation role of lawyers

OBJECT OF COMPARISON microcomparison comparing the specific legal institutions or problems; rules used to solve actual problems or particular conflicts of interests what might be compared: privilege against self-incrimination discretion to prosecute plea-bargaining search and seizure

OBJECT OF COMPARISON impossible to draw the fine line between macro & micro comparison most of the time both are done at the same time one has to study procedures by which the rules are in fact applied in order to understand why a foreign system solves a particular problem in the way it does

COMPARATIVE LAW v. OTHER BRANCHES OF LAW what the comparative law is NOT CAUTION: one can speak of comparative law only if there are specific comparative reflections on the problem to which the work is devoted: country by country layed down followed by critical comparison with conclusion

COMPARATIVE LAW v. OTHER BRANCHES OF LAW private international law PIL – positive national law CL – pure science PIL – which of several possible systems of law should be applied in a particular case which has foreign connections / rules of competence determining which speciific national law is to be applied and which lead to its application CL – no practical aim in view while dealing with several legal orders at the same time

COMPARATIVE LAW v. OTHER BRANCHES OF LAW private international law distinct branches but they interact oftenly comparative law is enormously valuable for private international law: research on the application of foreign law comparing English institutions with German when one institution is to be applied in other system e.g. „trustee” in England can be compared to nießbrach in Germany

COMPARATIVE LAW v. OTHER BRANCHES OF LAW public international law PublIL – law of nations, supranational global system of law CL – essential to the understanding of ‘the general principles of law recognized by civilized nations’ (one of the sources of PublIL – art. 38 (1) (c) of the Statute of the International Court of Justice principles of law accepted by a large majority of nations (not all nations – truism) CL aim is to discover which solution is the best

COMPARATIVE LAW v. OTHER BRANCHES OF LAW public international law interpretation of treatise helping in understanding some of the concepts and institutions of customary international law pacta sunt servanta (promises must be kept) clausula rebus sic stantibus (‘escape clause’) – legal doctrine allowing for treatise to become inapplicable because of a fundamental change of circumstance; exception from pacta sunt servanta

COMPARATIVE LAW v. OTHER BRANCHES OF LAW legal history CL – studies legal systems coexistent in space LH – studies legal systems consecutive in time CL – the comparatist willing to record the actual state of play really has to take account of the historical circumstances in which the legal institutions and procedures evolved LH – historian cannot help bringing to the study of his chosen system the preconceptions of the modern system he is familiar with

COMPARATIVE LAW v. OTHER BRANCHES OF LAW legal ethnology 1861 – J.J. Bachofen, Henry Maine aim – to produce a general world history of law as part of a general history of civilization early idea of legal ethnology mankind, with its common psyche, follows the same path of development in everything regardless of location or race this led to the focus on primitive system of law conclusions were drew about first law systems

COMPARATIVE LAW v. OTHER BRANCHES OF LAW legal ethnology the following idea controverting the idea of people developing law in the same way regardless of circumstances the new theory of cultural groups – every cultural development of any group anywhere was, as a historical event, unique couldn’t explain parallels in distinct systems (adoption, migration?)

COMPARATIVE LAW v. OTHER BRANCHES OF LAW legal ethnology the current idea the development of a legal system is the product of factors, some of which are typical and occur everywhere(natural and inevitable) and some of which are atypical (race, historical accidents, special aptitudes) aim– distinguish typical from atypical right now the focus is on legal aspects of surviving societies

COMPARATIVE LAW v. OTHER BRANCHES OF LAW sociology of law aim: to discover the casual relationships between law and society seek to discover patterns from which one can infer whether and under which circumstances law affects human behaviour and conversly how law is affected by social change (political, economical, psychological, demographic) example: search and seizure relationship between individual and state

AIMS AND FUNCTIONS OF COMPARATIVE LAW
OVERVIEW theory that no study deserves the name of science if it limits itself to phenomena arising within its national boundaries comparative law – the only way by which law can become international and consequently science because in sciences all discoveries and opinions are exchanged internationally lack of international research led to narcism and narrowmindness AIM – gaining knowledge

OVERVIEW different systems of the world can offer a greater variety of solutions than could be thaught up in a lifetime by even the most imaginative jurist who was coralled in his own system school of diversity supply of solutions critical capacity opportunity to find better solutions

dissolves unconsidered national prejudices helps to fathom different societies and cultures of the world and to further international understanding useful for law reform in developing countries

BENEFITS OF COMPARATIVE LAW 1. aid to the legislator 2. tool of construction 3. component of the curriculum of the universities 4. contribution to the systematic unification of law

BENEFITS OF COMPARATIVE LAW 1. Aid to the legislator good laws cannot be produced without the assistance of comparative law Germany – extensive comparative legal research preceeding legislation since 19th century (commercial law, civil procedure etc.) Central and European Countries China developing nations in Africa

BENEFITS OF COMPARATIVE LAW 1. Aid to the legislator need for intelligence and caution in adoption of foreign solutions not rejecting becuase it’s foreign and therefore unacceptable is the institution usefull or needed was the institution proved satisfactory in it country of origin will it work (powers of authorities, differences in court proceedings, social context)

Do you see any problems in adopting institutions derived from common law system to continental law?

BENEFITS OF COMPARATIVE LAW 2. Tool of construction help in interpretation national rules of law two approaches: law should be given the meaning attributed to it by legislator at the time of enactment 2) law should be treated as living kind of independent life

BENEFITS OF COMPARATIVE LAW 2. Tool of construction may national rules be used to invoke a superior foreign solutions? not to bypass unequivocal national rules! it is however possible if the construction of a rule is doubtful or where there is a lacuna in the system which judge must fill out analogy or arguments a contrario might be used

BENEFITS OF COMPARATIVE LAW 2. Tool of construction Swiss Civil Code art. 1 para 2 and 3: ‘If no statutory provisions can be found, the judge ust apply customary law, failing which he must decide according to the rule he would, were he a legislator, decide to adopt. In doing so the judge must follow accepted doctrine and tradition’

QUESTIONS Should only related systems be consulted? Should all systems be consulted? Can a judge choose whichever of the foreign solutions seams to him the best or can he choose only a solution which is common to a number of other states?

BENEFITS OF COMPARATIVE LAW 2. Tool of construction Germany – open for interpretation in the light of law of other states France – no references (position of the Court the Cassation) common law – long made reciprocal reference to each other’s decisions and are now invoking continental law to a remarkable degree

BENEFITS OF COMPARATIVE LAW 2. Tool of construction interpretation of law in the light of other state rules means more work for the judge especially important when the international law comes to the court: conventions international legislations (EU)

BENEFITS OF COMPARATIVE LAW 3. Component of the university curriculum it is too limiting to study one’s national law globalization and internationalization – law schools cannot disregard that whole new dimension: respect the legal cultures of other people better understanding of law critical standards leading to improvment

BENEFITS OF COMPARATIVE LAW 3. Component of the university curriculum comparative law teaches that the rule that currently operates in not the only possible choice an effective antidote to uncritical faith in legal doctrine provincialism of legal education – should be changed teaching in the light of comparative law

BENEFITS OF COMPARATIVE LAW 3. Component of the university curriculum position of comparative law at the university Introduction to Comparative Law (overview of legal systems, aims, methods etc.) less common: French law, German law even less common: comparison of some institutions critical thinking awarness of changes in law

BENEFITS OF COMPARATIVE LAW 4. Unification of law adopting common principles of law to avoid the discrepencies (EU) essential – discovering points of agreement and disagreement to draft the law being able to function in all legal environment easier for international legal businees (no need to apply private international law and foreign substantive law) Scandinavia, Benelux, European Union

BENEFITS OF COMPARATIVE LAW 4. Unification of law multilateral treatise – hard to achieve model laws: British Commonwealth US – Federal Rules of Evidence difficulties and problems: psychological – dislike in novelty, pride technical – differences in legal concepts political – reluctance of legislative

METHOD OF COMPARATIVE LAW
OVERVIEW ‘Sciences which have to busy themselves with their own methodology are sick sciences’ – Gustav Radbruch two approaches: still experimental stage very little systematic writing on methods of comparative law method being built: trials and errors cannot lay method in advance

FUNCTIONALITY functionality – basic methodological rule of comparative law other rules in comparative law: only comparable things can be compared (only those things are comparable that fulfills the same function) every society faces essentially the same problems and solves them by quite different means though very often with similar results

FUNCTIONALITY other rules in comparative law: the problem must be stated without any refernece the the concept’s of one’s own legal system NOT: „What formal requirements are these for pre-trial detention in foreign law?” INSTEAD: „How does the foreign law protect accused from unlawful pre-trial detention” one must never allow one’s vision to be closed by the concept s of one’s own national system GET OUT FROM YOUR NATIONAL BOX

FUNCTIONALITY impression that a foreign system has ‘nothing to report’ on a particular problem maybe you are looking in a wrong spot looking for the rule the comparatist is searching for the places where he expects the rule to be (where the experience of his own system tells him it should be) rethink the original question and purge it of all the dogmatic accretions of one’s own system

FUNCTIONALITY impression that a foreign system has ‘nothing to report’ on a particular problem it is extremely rare that there is ‘no report’ on particular problem but if this is true the question remians WHY a foreign system has not felt the need to produce a legal solution for a particular problem – that may lead to interesting conclusions about the institution and about one’s own law

FUNCTIONALITY ‘The student of the problems of law must encompass the law of the whoel world, past and present, and everything that affects the law, such as geography, climate and race, developments and events shaping the course of a country’s history – war, revolution, colonisation – religion and ethics, the ambition and creativity of individuals, the needs of production and consumption, the interests of groups, parties and classes’ Ernst Rabel

FUNCTIONALITY what the student should do while conducting the comparative research not to get upset that the traps, snares and delusions of comparative law cannot be enumerated stay alerted but be sure you will make a mistake be sure that eventually someone will correct you and put you on a right track avoid all limitations and restrictions, particualrly when it comes to sources of law (example: English Codes of Practice)

IMAGINATION AND DISCIPLINE the differences between systems may be tremendous something that seems generally acceptable in one system may not be true for the other, e.g.: person unable to act for themselves (minors, lunatics, etc.) civil law – concept of statutory representative (parent, guardian) common law – parents are not automatically entitled nor bound to represent the child (court appointment)

IMAGINATION AND DISCIPLINE another example: civil law – accused unsworn explanations common law – sworn testimonies by the accused civil law – prosecutorial supervision over every investigation even those dropped by the police common law – prosecutor getting involved with investigation only after police decides to charge or proceed with a case

SEARCH FOR MATERIALS which legal system one should choose to compare? legal system may imitate other parent system – affiliated system England – United States no one answear what country should be chosen all depends on the precise topic of research

HOW TO PRESENT COMPARATIVE RESEARCH the process of comparison starts only when reports on the different legal systems have been compared two stages of comparative research: 1. PRELIMINARY STEP – objective report 2. ACTUAL COMPARISON

HOW TO PRESENT COMPARATIVE RESEARCH PRELIMINARY STEP - seperate objective reports offered for each legal system or the whole family free from critical evaluation, though containing all significant qualifications or modifications whoever reads or uses a work on comparative law must be made familiar with the basic material on each country or he will be in no position to make the necessary comparison

HOW TO PRESENT COMPARATIVE RESEARCH 2. ACTUAL COMPARISON most difficult part of any work in comparative law impossible to lay down any firm rules about it simple listing the similarities and difference on discovers is not enough (just cleare repetition) adopting a new point of view from which to consider all the different solutions

HOW TO PRESENT COMPARATIVE RESEARCH 2. ACTUAL COMPARISON each of solutions adopted in investigated systems must be freed from the context of its own system the function of the particular investigated institution is important not the context if it is found that countries meet the same need in different ways the question remains WHY – the reason may lie anywhere

HOW TO PRESENT COMPARATIVE RESEARCH critical evaluation critical evaluation of what has been discover solutions better or worse solutions equally valid one solution clearly superior possibility of fashion the new solution

Cje Lecture II INTRODUCTION TO COMPARATIVE LAW Criminal Law I

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