Issue 7(2) Winter 2014Download pdf version
With a view to stimulating discussion regarding one of the most widespread methodological approaches in current legal studies and, in particular, in comparative private law, this paper challenges the notion of legal culture. Although focussing on the link between law and culture can be considered a heterodox approach that contributes to a better understanding of the dynamics of the legal system, this paper argues that the way in which legal culture is mostly understood in the discussions of comparative and European (private) lawyers is biased such that instead of shedding light on the deeper dynamics of the legal system it rather obfuscates them. This is mostly due to a static understanding of legal culture as national legal culture. Rather than erroneous, this conceptualisation appears as insufficient. This hints at the necessity of adopting a dynamic and pluralistic understanding of legal culture that escapes hegemonic consequences.
Contrary to the common claim that jus in bello proportionality is an obscure and intractable principle of modern warfare, this paper shows that proportionality balancing has a central role to play in assuring efficient military operations with a minimum number of casualties. Military commanders can and should want to understand proportionality as a requirement to measure military advantage in terms of lives saved and direct their operations toward the most life-saving operations. The targeted killing context in particular highlights the advantage of making proportionality analysis a central component of military strategy in asymmetrical conflicts.
The relationship between comparative law and the field of economics is increasingly important, but controversial. In the legal origins literature, economists have drawn from comparative law scholarship to suggest that common law systems may be more conducive to financial and economic development than civil law systems. Yet comparativists have been skeptical of the use of legal families to explain economic outcomes. After reviewing the discussion of legal families in the disciplines of comparative law, on the one hand, and economics, on the other, we conclude that a more nuanced approach is advisable. At the same time, we urge comparativists to engage in this debate more actively.
What characterises the EU today is that it is not only a multi-level governance system, but also a multi-context system. The making of Europe does not just take place on different levels within the European political framework, executed and fostered by different groups of actors or institutions. Rather, it also happens in different and distinguishable social contexts – distinct functional, historical, and local frameworks of reasoning and action – that political science alone cannot sufficiently analyse with conventional and generalising models of explanation. European law is one such context, and it should be perceived as a self-contained sphere governed by a specific rationality that constitutes a self-generating impetus for integration. By way of re-examining the much-debated ‘foundational period’ of the CJEU’s jurisdiction, it will be shown here that only by analysing the context of European law as an independent space of reasoning and action can the role of Europe’s high court in the process of integration be adequately captured.
This article discusses the so-called fourth instance doctrine under Article 6 of the European Convention on Human Rights, focusing in particular on its role in fair trial cases. It attempts to determine when the European Court of Human Rights has given weight to the fourth instance doctrine. Owing to the dynamic and free-range nature of the Court’s interpretative methods, challenges are often mounted on the basis of the fourth instance doctrine and the interpretation of Article 6 (fair trial). This article examines the case law, amounting to forty-four cases, on the provision of fair trials. It divides the role of the fourth instance doctrine into four distinct categories: (1) ‘clear fourth instance nature’; (2) ‘length of proceedings’; (3) ‘balancing approach’; and (4) ‘disregard of fourth instance approach’. Lastly, the article evaluates whether or not the application of strict fourth instance doctrine arguments in fair trial cases can be justified.
Traditionally, there are two main approaches to enrichment by transfer, the common law ‘unjust factors’ approach and the civilian ‘absence of basis’ approach. In the aftermath of the so-called ‘swaps cases’, Peter Birks proclaimed the dethronement of the unjust factors in the English system, said that English law has embraced a German-style absence of basis approach, and proposed a new system of unjust enrichment. This article proceeds in two steps. Firstly, it asks whether one of the two systems is superior to the other. Concluding that the ‘absence of basis’ approach may be conceptually clearer, it then argues that the English system should nonetheless be careful to adopt this approach for two reasons. First, this new approach may not be suited to neighbouring fields of law (especially contract), and secondly, unjust enrichment does not occupy the same place in the legal landscape in Germany and England, it is of a different normative quality.
Recourse to precedents in legal adjudication is a source of intriguing theoretical challenges and serious practical difficulties. That is especially so when we have to do not with domestic precedents but with foreign ones, that is, with decisions taken by foreign courts and international judicial institutions, particularly when there is no formal obligation for a court to resort to foreign law. Can a case decided by the judiciary of a different legal order - even if that case is remote and that legal order operates under different procedural rules and substantive laws - have any bearing on a dispute arising domestically here and now? Should such a foreign precedent be acknowledged to have any (formal) binding force on the case in question? How could the practice of following foreign precedents be justified? This paper is primarily meant to lay the theoretical basis on which those questions can be addressed. The basis on which we proceed in answering those questions essentially lies in a theory of legal reasoning that, for lack of a better phrase, can be labelled a dialectical approach informed by standards of discursive rationality.
This article aims at discussing the role of legal education in spreading awareness about gender issues amongst legal operators, judges and public administrations and institutions. In particular, the authors investigate the methodologies of integration of ‘gender skills’ in legal curricula. Asking why and in what form sexism is found in legal education, and starting from criticisms from the gender perspective, the paper studies the inadequacies of legal education with respect to gender from the point of view both of the structural limits of common methodologies and of specific discriminatory attitudes in present teaching activities, curricula and courses. Lastly, it attempts to propose some methodological innovations in legal education, aimed at opposing the predominant indifference towards considering gender as a legal matter. Specially: (1) a cross teaching of gender topics in (existing) general courses; (2) the inclusion of gender topics within (existing) general courses on fundamental rights; and (3) the growth of specific courses on law and gender.