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Comparative law material 1
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- Comparative Law as a Discipline: Debates whether it's a method or a science, with theories from E. Lamberts (descriptive CL, comparative history of law, comparative legislation) and J.H. Wigmore (comparative nomoscopy, nomothetics, nomogenetics).
- It studies the relationships between legal systems, focusing on their historical development to understand factors shaping changes and differences, emphasizing real relationships like influence or shared developmental stages.
- Perils of Comparative Law: These include superficiality (as argued by F.H. Lawson), the 'error of law' due to linguistic misunderstandings and limited sources (e.g., French vs. English legal terms), a lack of systematicity or objectivity, and potential insignificance if compared systems lack a proper relationship.
- Virtues of Comparative Law: Its primary virtue is enhancing the understanding of law and legal development, identifying factors that foster or hinder legal innovation, and determining if foreign rules can be effectively transplanted or require modification.
- Introduction to Legal Transplant: Karl Renner observed that transplanted rules can have different effects in new contexts. Law presents a paradox: it's a sign of people's identity yet is subject to transplantation.
- Historical examples (like similar provisions in ancient codes) suggest common sources for legal rules.
- Methods of Transplant: This can occur through direct borrowing, via an intermediate system (e.g., 'poena' from Roman law to Greek via Osco-Umbrian), or as voluntary major transplants (people moving to new territories with their laws, or accepting another's system). Other forms include imposed reception, penetration, and crypto-reception.