This document discusses techniques of comparative law. It addresses major pitfalls in comparative legal analysis, such as linguistic and cultural differences between legal systems. It also examines different comparative legal methods, including Kamba's three-stage approach of description, identification, and explanation. Finally, it considers issues in comparing legal systems, such as the suitability of topics, requirements of the comparative method, and testing functionality.
15. the quest for
methodology
• general character
of comparative
law
• subject matter
• macro v micro
• suitability of
topics
• comparative
method
requirements
• test of
functionality
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29. 1. Identify the problem.
2. Identify the foreign
jurisdiction & its parent
legal family.
3. Decide the primary
sources of law &
materials.
4. Gather & assemble the
material relevant to the
jurisdiction being
examined.
5. Organise the material.
6. Provisinally map out the
possible answers to the
problem.
7. Critically analyse the
legal principles.
8. Set out conclusions
within the comparative
framework with caveats
& with critical
commentary.
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32. • comparative law in courts
• comparative law & legislator
• comparativism & the verdict
• case law in non-common law jurisdictions
• styles of judicial decision
• overriding general principles
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37. “The discipline of comparative
does not aim at a poll of
solutions adopted in different
countries. It has the different
and inestimable value of
sharpening our focus on the
weight of competing
consideration.”
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38. functional use of foreign law
• a tool of interpretation
• to look for solutions
• to promote a change
• to fill in a gap
• to discard an unsatisfactory solution
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40. certain practical considerations
• language skills
• national insularity or pride: rule of proof;
common law as a whole
• pressures: time & volume of work
• budget
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41. “[A]ll judges cannot be
expected to be
comparatists, but it is
their duty to consult
those who are in a
position to supply the
information needed ...”
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42. “[It] cannot be right to
attempt to construe
‘acquiesced’ by
reference only to its
possible meaning at
common law or equity.”
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