What is the course about?
The comparative research of the characteristics of legal techniques of different societies is necessary to understand the respective part of the development of law.
The course is focused on acquaintance by the students of the basic knowledge in comparing legal techniques, including the specifics of law-understanding, law-making, law-enforcement, law interpretation, systematization of law. The student will get a general impression about the emergence, development, functioning and interaction of different elements of legal techniques within their interaction in global society.
Who is this course for?
The course is addressed to a wide audience interested in Comparative Law, Comparing Legal Cultures, Legal Theory and Legal Technics, but primarily focused on applicants and students.
What do I need to know?
To take the course the student has to know the bases of the legal theory, as well as he should be able to apply the main methods of legal theory (the analysis, synthesis, deduction, induction, comparison, generalization, abstraction and others) and to use technologies of search for the information in scientific literature and the Internet.
What will you have learnt?
After completing the course the student will know:
- the specifics of different legal cultures, the main tendencies of development of the law in the contemporary world;
- the legal language, legal concepts;
- the rules and the means necessary for subjects of law-making, law-enforcement, law-interpretation and law-systematization activity within the interaction of legal cultures.
In addition, the student will be able:
- to apply a comparative and legal method in the professional activity;
- to operate freely with the main categories of comparative law;
- to reveal the interrelations between various components of the legal technique inherent to various legal traditions, between the forms of law-making, law-enforcement, law-interpretation and law-systematization activity, between the respective legal concepts and institutes;
- to explain the legal nature and social purpose of various elements of the legal technique inherent to various legal traditions.
- to estimate the degree of efficiency of legal initiatives, in particular, of legal borrowings from the point of view of limits of interaction of legal cultures;
- to predict ways of further progressive development of legal techniques;
- to specify ways of improvement of national legal mechanisms, institutes and procedures.
Finally, the student will get:
- the skills of practical use of comparison for identification of the general and special signs of the compared objects, from advantages and disadvantages and also search of effective legal decisions;
- the skills of work with the legal acts and the analysis of law showing the variety of the legal systems and legal cultures existing in the contemporary world.
- the skills of demonstration of conditionality of the legal technique by the dominating theoretical ideas of the law;
- the skills of technical and legal examination of drafts of normative legal acts, law-enforcement legal acts.
- the skills of practical use of the gained theoretical knowledge.
The lecture module of the course is represented by the video-lectures and the manual text. The module of homework of the course presupposes the acquaintance with the additional material and literature to the lecture, the preparation for an intermediate and final assessment tests.
All modules are structured according to chapters.
The video-course has the following logic.
In Chapter 1. GROUNDS FOR THE COMPARATIVE APPROACH TO LEGAL TECHNIQUES you will learn the correspondence of legal techniques and legal activities. Also we shall discuss the problem of comparability and compatibility of legal cultures in comparing legal techniques.
In Chapter 2. THE NOTION OF LEGAL TECHNIQUE IN COMPARATIVE STUDIES you will study the "broad" and the “narrow” approaches to the legal technique. You will have a choice how to understand them. Is it law in general, or it is its cornerstone, or it reflects more than one aspect of legal reality, or whether it is identified only at one sphere of the law — the law-making activity. Finally, in this chapter we shall discuss the polysemy of a concept of the legal technique in Western legal literature.
In Chapter 3. CULTURAL CONTEXT OF COMPARING LEGAL TECHNIQUES you will get a general impression about the functional and instrumental orientation of social knowledge as the basis for the methodology of comparing legal techniques. We shall analyze the question of statics and dynamics of the law in comparative research as well as the appeal to culture in comparative studies of the legal phenomena. Finally, in this chapter we shall learn the concept of law as culture as a basis of comparing legal technics.
In Chapter 4. COMPARING LEGAL TECHNIQUES OF THE LAW-MAKING you will study the legislative process as a component of the law-making technique. We shall discuss the theoretical model of the legislative process of Ancient Rome and the ideas of Bentam presented in his "Principles of the Legislation" and "Introduction to the Bases of Morality and Legislations". Finally, in this chapter you will get general impression about the features of law-making activity in England and in the countries of the Civil Law family.
In Chapter 5. COMPARING LEGAL TECHNIQUES OF THE LAW-ENFORCEMENT you will learn the notion of the law-enforcement technique, we shall give the structural definition of the components of the law-enforcement technique and make its functional analysis in connection with the problem of sources of law.
In Chapter 6. COMPARING LEGAL TECHNIQUES OF THE SYSTEMATIZATION OF LAW we shall move to USA and Germany. We shall discuss the notion of this phenomena and specifics of its realization in case-law family (on the example of USA) and in civil law family (on the example of Germany and France).
In Chapter 7. COMPARING LEGAL TECHNIQUES OF THE LAW-INTERPRETATION AND LEGAL REASONING, we shall discuss Joseph E. David’s article - “Legal comparability and cultural identity: the case of legal reasoning in Jewish and Islamic traditions”. We shall visit Israel and Islamic countries. You will learn the methodological aspects of the comparative research in the field of law-interpretation and legal reasoning in Jewish and Islamic law. Then you will compare the Islamic and Jewish attitudes towards the techniques of legal reasoning and law-interpretation. Finally, in this chapter we shall discuss the Judicial error as the result of legal reasoning and law-interpretation from the point of view of similarities and differences in Jewish and Islamic law.
In Chapter 8. LEGAL TECHNIQUES AT THE BEGINNING OF CULTURE: SOME IDEAS TO UNDERSTAND THE LOGIC OF THE PROCESS OF DEVELOPMENT OF LAW we shall return to the past, to the pre-state societies. You will learn the methodological aspects of exploring legal technique at the beginning of culture. We shall analyze the phenomenon of syncretism of consciousness and social regulation in pre-state societies. You will get general impression about customary law and the cult of the ancestors as the basis of legal technique in pre-state societies. Finally, the aim of this chapter is to learn the historical logic of the process of development of law.
Intermediate assessment tests are represented after each section of the course. The test of each section consists of several questions. Criterion of completion by the student of a separate section is a half and more correct answers to questions of each test.
The final assessment is held in the form of total testing on all sections.
Additional literature for self-study
- Bell J. English Law And French Law – Not So Different? // Current Legal Problems. 1995. Vol.48.
- Blankenburg E. Patterns of Legal Culture: The Netherlands Compared to Neighboring Germany // American Journal of Comparative Law. 1998. Vol.46.
- Damaska M.R. A Continental Lawyer in an American Law School: Trials and Tribunals of Adjustment // University of Pennsilvania Law Revue, 1968. Vol.116.
- Joseph E. David Legal Comparability and Cultural Identity: The Case of Legal Reasoning in Jewish and Islamic Traditions”, vol. 14.1 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (May 2010), http://www.ejcl.org/141/art141-2.pdf.
- Friedman L.M. Legal Rules and the Process of Social Change // Stanford Law Revue. 1966-1967. Vol.19.
- Legrand P. European Legal Systems are not Converging // International and Comparative Law Quarterly. 1996. Vol.52.
- Legrand P. How to Compare Now // Legal Studies. 1996. Vol.16.
- Merryman J.H. The Civil Law Tradition: An Introduction to The Legal Systems of Western Europe and Latin America? Stanford: Stanford University Press, 1985.
- Reimann M. The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century // American Journal of Comparative Law. 2002. Vol.50.
- Van Hoecke M., Warrington M. Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law // International and Comparative Law Quaterly. 1998. Vol 47.
Associate Professor Sergey Zinkovskiy
Associate Professor of the Department of Theory of Law and State, Deputy Director for Research of the Law Institute of RUDN University