Comparative Law

This text contains the latest edition of this book. It covers the basis of the Japanese legal system, the civil code, business related laws, and other laws including criminal law and procedure, and foreign relations law. Since the last edition, Japanese law has undergone major reform all of which is reflected in the new text. In particular, the new edition covers the new company law and the Financial Products Trading Law, both of which have been completely overhauled. After the ‘lost decade’ following the collapse of the ‘bubble economy’ in 1990, Japan has gone through a major reform — deregulation or ‘regulatory reform’. Accordingly, major changes took place in almost every area of law. There was a large-scale ‘Justice System Reform’ which encompassed various changes in the court system, the introduction of lay assessors in the criminal procedure, a new law school system, etc. Company law, which was embodied in the Commercial Code, was completely overhauled under a different concept and became a separate law — the Company Law of 2005. Securities and Exchange Law was replaced by the Financial Instruments and Exchange Law in 2006. Even the Civil Code, which had remained more or less unchanged (except for family and succession) since the late 19th century, has gone through significant changes. Certainly there are many positive results coming out of these reforms, but also there have been some doubtful changes. Thee outcome of the reforms of the past decade is yet to be assessed. These changes and their impact are covered in this book.

This book compares how and why the European Court of Justice, the French Cour de cassation, and the United States Supreme Court offer different approaches for generating judicial accountability and control, judicial debate and deliberation, and ultimately judicial legitimacy. Examining the judicial argumentation of the U.S. Supreme Court and the French Cour de cassation, the book first reorders the traditional comparative understanding of the difference between French civil law and American common law judicial decision-making. It then uses this analysis to offer the first detailed comparative examination of the interpretive practice of the European Court of Justice (ECJ). The book shows that the judicial system of France rests on a particularly unified institutional and ideological framework founded on explicitly republican notions of meritocracy and managerial expertise. Law-making per se may be limited to the legislature, but significant judicial normative administration is entrusted to state selected, trained, and sanctioned elites who are policed internally through hierarchical institutional structures. The American judicial system, by contrast, employs a more participatory and democratic approach that reflects a more populist vision and generates its legitimacy primarily by argumentative means. American judges engage in extensive debates that subject them to public scrutiny and control. The ECJ hovers delicately between the institutional/argumentative and republican/democratic extremes. On the one hand, the ECJ reproduces the hierarchical French discursive structure on which it was originally patterned. On the other, it transposes this structure into a transnational context of fractured political and legal assumptions.

Fundamental rights are exploding across all areas of law in Europe. This rights revolution is transforming European judicial culture and the judge's political role at breakneck speed. Not only have fundamental rights become an integral part of litigation in the domestic and European courts, but their advent has provoked an ongoing revolution in French and European procedural, doctrinal, institutional, and conceptual structures. Grounded in comparative law and political science, this book tells the story of the rights revolution. Part of the story is social and intellectual. As the polity has become increasingly complicated both nationally and transnationally, fundamental rights have emerged as a lingua franca within and across European jurisdictions: they offer a pool of common legal terms that address the diversity of interests now litigating in the domestic and European courts. But that is not the entire story. The fundamental rights revolution is also a product of the complex — and often competitive — inter-institutional dynamics that characterize the judicial arena in our ever more globalized legal space. European legal controversies increasingly play out at the jurisdictional intersection of a range of domestic and supranational high courts, which must interact and coordinate as never before. This growing inter-institutional interface has taken on a competitive logic and inflationary force of its own. The result has been a group dynamic that has reinforced the ubiquity and preeminence of fundamental rights throughout the European legal field. Almost every European judicial player now faces powerful pressures to jump on the fundamental rights bandwagon or be left intellectually and institutionally behind. This has prompted a frantic race to master and lead the emergent fundamental rights regime.

One out of five people in the world today lives subject to Islamic law, but stereotypes of rigid doctrine or harsh punishment obscure an understanding of the values and style of reasoning that characterize everyday Islamic adjudication. By considering its larger social and cultural context, Islamic law is shown to be a kind of common law system: justice is sought through a careful assessment of persons, more than facts, and justice resides not in equality, but in a quest for equivalence. Through ordinary court proceedings the style of reasoning is seen to be embedded in a set of cultural assumptions, thus rendering the study of Islamic legal proceedings a window on Muslim society generally. Using data ranging from the courts of North Africa to the treatment of Islam in American courts, from a reinterpretation of the Prophet's sociological jurisprudence to the analysis of Islamic concepts of responsibility and trust, these essays demonstrate the enduring appeal of Islamic law in the lives of ordinary adherents.

This book is a study of the character and compilation of Justinian's Digest, the main volume of Justinian's Corpus Iuris Civilis (528–534 ad). This is often considered as one of the most influential works in the history of Western culture. It remains significant, partly because it is still a part of the law in six countries in Southern Africa, and partly because of its role in the evolution over 1,500 years of the theory and practice of human rights. The book gives a detailed account of the probable methods used in the compilation of the Digest and distinguishes the respective roles of imperial ministers, law professors, and advocates. It also examines the broader issues raised by the Digest's creation — how it was conceived by its compilers, its purpose, and its impact.

Current Legal Issues, like its sister volume Current Legal Problems, is based upon an annual colloquium held at University College London. Each year, leading scholars from around the world gather to discuss the relationship between law and another discipline of thought. Each colloquium examines how the external discipline is conceived in legal thought and argument, how the law is pictured in that discipline, and analyses points of controversy in the use — and abuse — of extra-legal arguments within legal theory and practice. Law and Anthropology, the latest volume in the Current Legal Issues series, offers an insight into the state of law and anthropology scholarship today. It focuses on the inter-connections between the two disciplines, and also includes case studies from around the world.

This book explores the relationship between the legal systems of the UK and USA. The chapters in this volume range widely over themes. The first chapter compares the work of the two most prominent writers on jurisprudence in the second half of this century, one English (H. L. A. Hart) and one American (Ronald Dworkin). The chapter has a controversial conclusion that trying to define ‘law’ is futile, distracting, and illustrative of the impoverishment of traditional legal theory. The second chapter examines a number of English cases drawn primarily from the two fields in which English and American law overlap most completely — torts and contracts. Here the chapter argues that while in general English judges use their common sense effectively to approximate the results that an economic analyst would recommend they would do even better if they were more receptive to the economic approach to the common law — if they were, in other words, a little more like American judges. The next chapter examines the differences between the English and American legal systems at the administrative or operational level as distinct from the jurisprudential and doctrinal levels. The conclusions drawn from this analysis challenge traditional orthodoxy. The concluding advice to law reformers in both jurisdictions is that piecemeal reform of either system is to be avoided.

Each State in Europe has its own national laws which affect religion and these are increasingly the subject of political and academic debate. This book provides a detailed comparative introduction to these laws with particular reference to the States of the European Union. A comparison of national laws reveals profound similarities from which emerge principles of law on religion common to the States of Europe, and the book articulates these. It examines the constitutional postures of States towards religion, religious freedom, and discrimination, and the legal position, autonomy, and ministers of religious organizations. It also examines the protection of doctrine and worship, the property and finances of religion, religion, education and public institutions, and religion marriage and children, as well as the fundamentals of the emergent European Union law on religion. The existence of these principles challenges the standard view in modern scholarship that there is little commonality in the legal postures of European States towards religion. It reveals that the dominant juridical model is that of cooperation between State and religion. The book also analyses national laws in the context of international laws on religion, particularly the European Convention on Human Rights. It proposes that national laws often go further than these in their treatment and protection of religion, and that the principles of religion law common to the States of Europe may themselves represent a blueprint for the development of international norms in this field.

This book describes in detail the ways in which the life of the Church of England is affected by law. It deals with a great many topics including canonical jurisprudence, ecclesiastical government, the ministry of clergy and laity, faith, doctrine and liturgy, church rites, and the management of property and finance. Each of these subjects is studied and analysed critically and where appropriate, comparisons are made with the Roman Catholic Church. There are five general themes: first is the degree to which the church can be said to be regulated; the second concerns the increasingly important use of administrative rules created executively at national and diocesian level to supplement formal church law; the third examines the relationship between the formal law and the pastoral values of clarity, certainty, and flexibility; the fourth theme is the applicability of secular law; the final theme is the comparison with the canon law of the Roman Catholic Church. Thus, the book provides a comprehensive, descriptive, and critical analysis of the legal framework of the Church of England and the regulatory instruments that operate within this framework.

Law and law-like institutions are visible in human societies very distant from each other in time and space. When it comes to observing and analysing such social constructs historians, anthropologists, and lawyers run into notorious difficulties in how to conceptualize them. Do they conform to a single category of ‘law’? How are divergent understandings of the nature and purpose of law to be described and explained? Such questions reach to the heart of philosophical attempts to understand the nature of law, but arise whenever we are confronted by law-like practices and concepts in societies not our own. This book analyses the nature and meaning of law in diverse societies. The book starts from the concept of legalism, taken from the anthropologist Lloyd Fallers, whose 1960s work on Africa engaged, unusually, with jurisprudence. The concept highlights appeal to categories and rules. The degree to which legalism in this sense informs people's lives varies within and between societies, and over time, but it can colour equally both ‘simple’ and ‘complex’ law. Breaking with recent emphases on ‘practice’, the chapters explore, in a set of cases, the place of legalism in the workings of social life. The chapters make obvious the need to question our parochial common sense where ideals of moral order at other times and places differ from those of modern North Atlantic governance. State-centred law, for instance, is far from a ‘central case’. Legalism may be ‘aspirational’, connecting people to wider visions of morality; duty may be as prominent a theme as rights; and rulers from thirteenth-century England to sixteenth-century Burma appropriate, as much they impose, a vision of justice as consistency. The use of explicit categories and rules does not reduce to simple questions of power.