Introduction to Comparative Law
- The course aims at introducing the students the major approaches of ‘traditional’ comparative law, its functions, aims, methods and history. It also intents to survey the main features of the major legal families of the world (civil law, Anglo-American common law, non-Western legal traditions in Asia, Sharia, and mixed jurisdictions), so that the students would have the 'map' of the world’s legal systems. Finally, the course introduces comparative legal studies of today's globalized world with extended methods of ‘postmodern’ comparative law (contextualised approach to legal systems and institutes).
- After completing the course students are expected to be able to define basic concepts of comparative law discipline;
- After completing the course students are expected to be able to explain how comparative law can be used to understand different legal systems of the world;
- After completing the course students are expected to be able to distinguish and identify key features and institutes of the major legal system (including mixed jurisdictions);
- After completing the course students are expected to be able to review and summarize recommended academic papers;
- After completing the course students are expected to be able to coherently state and reason one's own theses in English regarding the issues of the course;
- What is comparative law.1. Comparative law as a method and an independent discipline. 2. The rise of modern comparative law as a discipline in Europe and North America. 3. The functional comparison as the basic approach on the micro-level. 4. Modifications and alternatives to functionalsim. A contextual comparison. 5. Rich comparative knowledge about persistent legal plurality of the world today.
- Comparative law on macro-level1. Basic conceptions of comparative law on macro-level: legal families (systems), cultures, traditions, and contexts. 2. Variety of legal taxonomies: patterns of law, Western and non-Western law, original legal systems and mixed jurisdictions. 3. Interaction between legal systems and circulation of legal models and ideas through history, imposition, prestige. Legal receptions and transplants. 4. The concept of Western legal tradition subdivided into civil law and common law.
- The civil law in continental Europe.1. Major features of civil law context: statutory law, law as a system, doctrinal legal thinking. Originality of the French and German models within civil law. 2. Historical background of the civil law context: from universalism of Romano-canonical common law to legal particularism of nation-states and back to pan-European legal order of the EU. 3. Primary division of the law into public and private. Features of public law and European constitutionalism: the state of justice, human dignity, limits of basic rights. EU law, national and communitarian legislator. 4. Features of private civil law: Civil codes as free-market ‘constitutions’, the ethics of formal equality, free choice and consent, private property, sanctity of contract, fault liability. Emerging ‘common core’ of European private law. Private law and welfare state. 5. Techniques to interpret and to apply the (statutory) law. Legal authorities and arguments. 6. Typical court structure, court branches and instances. Judges and attorneys. Features of judicial procedure. 7. Legal profession and legal education.
- Variety of civil law systems in Europe.1. Macro-comparison and legal map of continental Europe: West, East, Center, North, South. 2. Western Europe: French and German legal models, and their areas of influence. 3. Eastern Europe’s subdivision and different trends. New members of the EU in Center and South. Russia as the East of the East. The complex transformation. 4. Scandinavian legal features: common culture, no codes or Roman law, legal realism, welfare state. 5. Civil law beyond Europe: Latin America, Japan, China.
- The common law in England and the USA: related yet different.1. Major features of case law: cases, precedents and other sources, mode of legal thinking. 2. Historical background: English common law and equity, law reform and conservatism. 3. Courts in England and Wales: uneasy modernization. In the USA: the federal structure and state jurisdiction. 4. Judges, lawyers, and legal education. 5. Adversarial process and jury trial. 6. Parliamentary sovereignty in the UK and constitutionalism in the USA: a major split in ‘public’ law. 7. Common law beyond the UK and the US: former British colonies.
- Key institutes of the English substantive law.1. Property law. Types of property in common law family and their difference from the corresponding analogues in the civil law. The concept of property rights and their difference from real rights in civil law family. The concept of the title. The ways of acquiring property rights. Ownership of the land – freehold and leasehold. Land transactions and the transfer of rights. Future interest in things. Ways to protect property rights. 2. Tort law. Kinds of torts. Negligence torts, property torts. Some doctrines of tort law (proximate cause, etc.). Liability torts. Types of liability in tort law. Ways of protection. Certain specific types of torts (trespass, malpractice, defamation). The difference of the institutions of torts law in common and continental legal families. 3. Contract law. The place contract law in the common law system. Approaches to the contract, the doctrine of Law and Economics. Concept and types of contract. Elements of the contract. Counter-satisfaction. Estoppel. Performance of the contract. Termination of the contract. Breach of a contractual obligation. Express and implied term of contract. Methods of interpretation of the contract. Liability for breach of contract. Warranties. Ways of protection.
- Mixed Jurisdictions (Hybrid legal systems).1. The origins of the phenomenon and the concept of a mixed jurisdiction or hybrid legal system. 2. The law of Quebec. Dualistic legal system: the influence of common law and civil law systems. Codification of civil law in 1866 and 1991, the interplay of the laws of Quebec with the federal law of Canada. 3. The law of South Africa. Influence of the Roman-Dutch law and the English common law. 4. The law of Israel. The influence of Jewish law and the law of the Ottoman Empire. The law of the State of Louisiana in the United States. The influence of law in France and the common law
- Muslim law and Sharia.1. Approaches to Islamic law as a religious phenomenon and legal phenomenon. The concept of sharia, its definition and structure. The concept of ijtihad and fiqh and its main sources. The ratio between religious (Quran and Sunnah) and rational (analogy, "excluded interests," et al.) sources of law. 2. Doctrine as the leading source of Islamic law. Basic classification, theoretical constructs and concepts of Islamic law. The basic principles of fiqh and Islamic law. The reflection in it the religious principles and the legal nature of Islamic law. 3. Development of the Islamic concept of the state (caliphate) within the Islamic legal doctrine (fiqh). Violation of Sharia as a religious sin and offense in the legal sense, religious and "secular" sanctions for violations. Criteria for classification of offenses: the nature of the violated rights and strengthening accountability measures in the major sources of fiqh. Three categories of offenses: hudud, qisas and tazir. 4. Sharia justice as the leading institute in the Islamic states and Islam as a normative system. Islamic thought as the leading principle of justice. Principles of organization of the sharia court. Requirements for the qadi (judge). The implementation of the principle of equality in the organization and operation of the Shariah court. Powers of Sharia judge. 5. Islamic and Western legal culture: confrontation and interaction.
- Chinese and Japanese legal tradition and its change.1. Traditional Chinese law. The influence of Confucianism. Socialist Chinese law. The influence of the legal system of the USSR. The role of the law. "Chinese-Soviet" model of a crime. Economic modernisation of China and its impact on Chinese law. The Legal System of the People's Republic of China today. 2. Traditional Japanese law. The value of customs. Meiji Revolution of 1868. The impact of the legal systems of Germany and France before WWII. The influence of the United States after 1945.
- Global comparative law.1. Legal Transplants: historical development in continental Europe, during and after colonialism, in non-colonial countries. 2. Fading state borders. The end of state? The role of public and private international law. Convergence and transnationalism vs. regionalism. 3. Comparative law and development. Development and the rule of law. The critics of ‘law and development’. 4. Comparative law as an open subject.
- Interim assessment (4 module)0.2 * attendance and participation + 0.4 * final test (exam) + 0.3 * review or essay + 0.1 * tests
- Kischel, U., & Hammel, A. (2019). Comparative Law (Vol. First edition). Oxford, United Kingdom: OUP Oxford. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=2032077
- Caenegem, R. C. van. (2002). European Law in the Past and the Future : Unity and Diversity Over Two Millennia. Cambridge: Cambridge University Press. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=73957
- Dicey, A. V. 1835-1922. (1902). Introduction to the study of the law of the constitution. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsbas&AN=edsbas.F16AD812