Comparative Law

The development of an autonomous English public law has been accompanied by persistent problems — a lack of systematic principles, dissatisfaction with judicial review procedure, and uncertainty about the judicial role. It has provoked a continuing debate on the desirability of distinguishing between basic categories of public and private law. In this debate, a historical and comparative perspective has been lacking. By way of a comparative historical jurisprudence and a Weberian method, this book introduces such a perspective from which to view the problematic English distinction between public and private law as a legal transplant from the Continental civil law to the English common law. It provides a novel application of that method to the distinction's contrasting development in England and France. It compares the relatively recent emergence of a significant English distinction with the entrenchment of the traditional and influential French distinction demarcating the leading system of droit administratif developed by the Conseil d'Etat. Emphasising systemic interconnections between theory, institutions, and judicial procedure in the development of legal system, it explains how persistent problems of English public law are related to fundamental differences between the English and French legal and political traditions — differences in their conception of the state administration, their approach to law, their separation of powers, and their judicial procedures in public law cases. The book shows how a satisfactory distinction between public and private law depends on a particular legal and political context, a context that was evident in late 19th-century France and lacking in 20th-century England. It concludes by identifying the far-reaching theoretical, institutional, and procedural changes required to accommodate English public law.

The common law, despite procedural divisions, has only ever had one class of civil wrongs. The civilians, by contrast, have typically split their law of wrongs in two, one group being called ‘delicts’ and the other ‘quasi-delicts’. Yet this division, which originated in Roman law, remains mysterious: it is clear neither where the line was drawn nor why a separation was made along this line. This book does two things. In the first two parts, it investigates the origins of the division and its development in a modern civilian jurisdiction, France. What is argued for is that the Roman dichotomy was originally one between fault (culpa)-based and situational liability, which was prompted by a historical contraction of the Roman concept of a wrong (delictum). French law, building on medieval interpretations of the division, redrew the line one level higher, between deliberate and negligent wrongdoing. By doing so, it involved itself in severe taxonomical difficulties, which the book explores. The third part of the work concerns itself with the significance of the civilian division of wrongs according to degrees of blameworthiness (dolus, culpa, casus) for the common law. A rather provocative thesis is developed, in effect, that there is a strong case for the adoption of a similar trichotomy as the first-level division of the English law of civil wrongs. From its formulary age, English law has inherited an unstable taxonomy where wrongs intersect. The existence of these mismatched categories continues to cause significant difficulties, which a realignment of causes of action along the above lines would allow to sort out.

This study considers the problems of defining and valuing ‘environmental damage’ from the perspective of international and comparative law. The need for a broad and systematic evaluation of this issue is illustrated by the number of topics presently on the international law-making agenda to which it is relevant, including the UN Compensation Commission's decisions on compensation for environmental losses suffered by Kuwait in the Gulf War, nuclear and oil pollution liability regimes, the development of an environmental liability protocol to the Antarctic Treaty and other agreements on bio-safety and genetically modified organisms. It is thus an important element in contemporary efforts to strengthen legal remedies for environmental harm which does not necessarily come within traditional categories of legally protected personal or property rights. The contributors include experts in national and international law, civil and common law, as well as in the laws of developed and developing states, an economist and a member of the UN Compensation Commission.

The most effective international legal system in the world exists in Europe. It works much like a domestic system, where violations of the law are brought to court, legal decisions are respected, and the autonomous influence of law and legal rulings extends into the political process itself. The European legal system was not always so effective at influencing state behaviour and compelling compliance. Indeed the European Community's original legal system was intentionally designed to have very limited monitoring and enforcement capabilities. The European Court of Justice transformed the original system through bold and controversial legal decisions declaring the direct effect and supremacy of European law over national law. This book starts where traditional legal accounts leave off. Karen Alter explains why national courts took on a role enforcing European law against their governments, and why national governments accepted an institutional change that greatly compromised national sovereignty. She then shows how harnessing national courts to funnel private litigant challenges through to the ECJ and enforce European law supremacy contributed fundamentally to the emergence of an international rule of law in Europe, where national governments are held accountable to their European legal obligations, and where states actually avoid policies that might conflict with European law.

This book provides a description of the German law of unjustified enrichment. It explains how German law generally allows restitution for transfers made without legal ground (rather than on the basis of individual unjust factors), an approach which the late Peter Birks proposed for English law to adopt, and which the House of Lords was careful not to rule out for the future in Deutsche Morgan Grenfell v Inland Revenue. Part I explains the workings of German unjustified enrichment law within the particular context of German contract, tort, and property law. It shows how the German general unjust enrichment clause is controlled by limiting its scope to intentional transfers, and complemented by specific grounds of unjust enrichment. This part also explains defences against and measure of enrichment claims. Part II places German law in the comparative context of three different fundamental approaches towards unjustified enrichment, shows some unexpected similarities between English and German law, and discusses whether English law could and should adopt the German approach. The book gives equal prominence to structural issues and legal doctrine on the one hand, and practical application of the law on the other. It provides leading German cases and relevant statutory provisions in English translation.

This book studies the law governing the giving and revocation of gifts. Gift-giving is everywhere governed by social and customary norms before it encounters the law. Moreover, the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides a lens through which to examine how different legal systems confront social practice. The law of gifts is well-developed both in the civil and the common laws. This book studies how the different civil and common law jurisdictions confront common issues. The legal systems discussed include for the common law those of England, the United States, and India, and, in the civil law, the private law systems of Belgium and France, Germany, Italy, and Spain. This book also provides a critique of a principal method of comparative law, which is a form of functionalism based on what is called the praesumptio similitudinis, namely the axiom that once legal doctrine is stripped away, developed legal systems tend to reach similar practical results. As this study makes clear, legal systems actually differ, not only in their approach and conceptual structure, but just as much in the results. More importantly, this study rejects functionalism in favor of an interpretist method derived from cultural anthropology.

This book focuses upon the processes by which new business organization forms have developed in the US, UK, and continental Europe. Part I addresses the theoretical developments in partnership and close corporation law. In Part II, the contributors offer insights into the forces shaping the evolution of partnership-type business forms in the US, UK, and several European jurisdictions, and Part III provides detailed analyses of the Limited Liability Company (LLC), Limited Liability Partnership (LLP), the European Private Company, and the Dutch partnership form.

This book describes the constitutions of six major federations and how they have been interpreted by their highest courts, compares the interpretive methods and underlying principles that have guided the courts, and explores the reasons for major differences between these methods and principles. Among the interpretive methods discussed are textualism, purposivism, structuralism, and originalism. Each of the six federations is the subject of a separate chapter written by an authority in the field: Australia, Canada, Germany, India, South Africa, and the United States. Each chapter describes not only the interpretive methodology currently used by the courts, but the evolution of that methodology since the constitution was first enacted. The book also includes a concluding chapter which compares these methodologies, and attempts to explain variations by reference to different social, historical, institutional, and political circumstances.

This book provides an introduction to the laws of the Middle East, defining the contours of a field of study that deserves to be called ‘Middle Eastern law’. It introduces Middle Eastern law as a reflection of legal styles, many of which are shared by Islamic law and the laws of Christian and Jewish Near Eastern communities. It offers a detailed survey of the foundations of Middle Eastern law, using court archives and an array of legal sources from the earliest records of Hammurabi to the massive compendia of law in the Islamic classical age, through to the latest decisions of Middle Eastern high courts. It focuses on the way legislators and courts conceive of law and apply it in the Middle East. The book begins with an exploration of the depth and variety of Middle Eastern law, introducing the concepts of shari'a, fiqh, and qanun, and dwelling on Islamic law as the ‘common law’ of the Middle East. It provides a historical introduction to the contemporary Middle East, exploring political systems, constitutional law, judicial review, the laws of tort and obligations, commercial law, and examines legislative reform in family law and the position of women in the legal system. The author considers the interaction between Islamic and Western laws and includes a bibliography designed for further research into the jurisdictions and themes explored throughout the book.

The relationship between Islamic law and international human rights law has been the subject of considerable, and heated, debate in recent years. The usual starting point has been to test one system by the standards of the other, asking is Islamic law ‘compatible’ with international human rights standards, or vice versa. This approach quickly ends in acrimony and accusations of misunderstanding. By overlaying one set of norms on another we overlook the deeply contextual nature of how legal rules operate in a society, and meaningful comparison and discussion is impossible. Chapters in this book attempt to deepen the understanding of human rights and Islam, paving the way for a more meaningful debate. Focusing on central areas of controversy, such as freedom of speech and religion, gender equality, and minority rights, the chapters examine the contextual nature of how Islamic law and international human rights law are legitimately formed, interpreted, and applied within a community. They examine how these fundamental interests are recognized and protected within the law, and what restrictions are placed on the freedoms associated with them.