Course Syllabus

2017 603 Introduction to Joint Research on Comparative Study of Law

[Lecture Course Basic Information]

Lecturer: D. Yokomizo
Other Lecturers: S. McGinty
Course Type: Lecture
Semester: Fall
Year: M1
Course Periods: -
Credits: 2
Whether mandatory or not: Compulsory for Leading Graduate School students. Other GSL students can register for credits.
Classroom: -

 

Outline of Lecture Course

Why and how to engage in the comparative study of law? Recent years have witnessed an intense debate over new directions in legal comparativism and innovative efforts to renew the field have been made. Significantly, a methodologically sound approach to comparative legal study and research is now considered to be crucial in the production of a growing body of critical understanding of legal matters in the era of globalization. Moreover, clear guidelines are deemed necessary, especially at a time when young students engage more often than in the past in legal research conducted on a comparative basis.

Addressing the question of how to carry out comparative legal research, this workshop explores the main methodological traditions and their practical implications in comparing different legal institutions in a multifaceted, globalized world. It introduces students to both an overarching methodological framework (consisting of a series of steps that need to be taken to perform any comparative legal research project) and a wide range of various comparative “techniques” that have developed over time by trial and error. All together, its 7 sessions form a plea for a comprehensive approach to methodology regarding the comparative study of law.

In the first part of the workshop (sessions 1 and 2) we will introduce students to some of the basic theories and concepts in traditional comparative law and examine the most common approach to comparative legal studies: the functional method.  In the third session we move on to discuss some alternative approaches to comparative law which have expanded its use and relevance beyond strictly legal comparison and into other, cross disciplinary, approaches.  In the fourth session we will look at how globalization has affected the comparison of laws, and the interesting question of whether or not national laws are "converging".  In the fifth session we cover the topic of legal transplants, a long discussed topic in comparative law which looks at different jurisdictions copying each other`s laws. In the sixth session we consider the comparison of laws from a qualitative perspective and address the question of whether or not ideal models of law exist for individual problems in society.  In the final session we look at the law and development literature, which raises the question of whether or not legal reform can be used effectively as a means of promoting economic and social development in developing countries.





Course Objectives A few words to begin with...:

"National systems still dominate the agenda of most legal scholars and the curricula of most students of law not simply for practical reasons but as much because this remains for most people the definition of what legal education and legal scholarship are about. But law students and legal scholars deserve something better, and it remains a major task for comparative lawyers to show them the ways to get it. But it may need some imagination."
"Imagination is not a word that is commonly used in relation to legal studies. Traditionally, more emphasis is placed on knowledge and understanding. (...) Once one accepts that the development of the imagination should be an important feature of legal education and legal scholarship alongside the acquisition of knowledge and the increase of understanding, the means of stimulating it can, in principle, be as wide-ranging as possible. (...)"
Geoffrey WILSON, 'Comparative Legal Scholarship', in M. McConville, W. Hong Chui, Research Methods for Law, Edinburgh: Edinburgh University Press, 2012, p. 97-98-99.

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This workshop is designed for students in law and in politics working in a collaborative international setting.
- Through various readings, they can LEARN FROM the often messy but theoretically informed and constructive methodological choices made by comparative legal scholars in a wide range of projects ;
- Through various exercises, they can LEARN HOW to engage themselves in comparative legal research.

This workshop revolves around two main features.
- First, by focusing on the "Comparative Study of Law" broadly conceived rather than on "Comparative Law" in the narrow sense, it makes students more knowledgeable about various comparative methods applicable to a wide range of legal institutions at different regulatory levels and in different contexts. Students are able to explore and compare multiple legal norms, rules and principles that stem from diverse public and private rule-making entities at local, national and international levels.
- Second, by prioritizing "Joint Research", this workshop creates a learning environment that is conducive to the learning of basic research skills following an original pattern. It gives students with divergent national, linguistic and academic backgrounds the opportunity both to step away from soloist and monodisciplinary types of comparativism, and to cease thinking in terms of a single national legal paradigm. In such an international and collaborative setting, students are stimulated to exchange a variety of perspectives. Rather than concentrating on simply executing a standard procedure of doing research, they are challenged - through teamwork and cooperative learning - to explore innovative formulas to study law comparatively, to construct their own understanding of the law from multiple sources, and to elaborate workable alternative solutions to real-world problems.

Small-scale, student-centred, based on complementary teaching methods and learning styles (lectures, discussions with reading assignments before classes, case studies, project- and problem-based assignment tasks), this workshop equips pluralistic legal-minded students with a "tool-box" on which they can draw in a creative manner to actually engage in comparative legal research and better navigate today’s complex and rapidly transforming legal landscape. Through focusing on the process of learning, rather than the mere content to be learned, this "Introduction to Joint Research on Comparative Study of Law" should allow students to develop the capability of applying, not only possessing, knowledge that can be used in various contextualized settings. The basics acquired through such workshop relate to a wide range of transferable skills* to be developed further through the overall Leading Program.

* Such as the ability to undertake a critical analysis of legal concepts and institutions across systems; an appreciation of legal pluralism and varying forms of normativity; the ability to identify and resolve theoretical and practical problems concerning the application of law in multi-jurisdictional situations; and the capacity to place law and regulation, irrespective of subject area, within a global context.


Textbooks As support textbooks, students may want to use :
1. ZWEIGERT, K. and KÖTZ, H. 1998. Introduction to Comparative Law, translated from the German by Tony Weir. Oxford, Oxford University Press.
2. GLENN, H P. 2010. Legal Traditions of the World, 4th ed. Oxford University Press.
3. SIEMS, Mathias 2014. Comparative Law, Cambridge: Cambridge U. Press.

As complementary sources, student may want to refer also to :
• BOGDAN, M. Concise Introduction to Comparative Law, Europa Law Publishing, 2013.
• CURRAN, V. G., GROSSFELD, B. Comparative Law: An Introduction, Carolina Academic Press, 2002.
• De CRUZ, P. Comparative Law in a Changing World, 3rd ed. Routledge-Cavendish, 2007.
• MENSKI, W. Comparative Law in a Global Context, The Legal Systems of Asia and Africa, 2nd ed. Cambridge University Press, 2006.
• MERRYMAN, J.H. and PÉREZ-PERDOMO, R. The Civil Law Tradition: an Introduction to the Legal Systems of Europe and Latin America, 3rd ed. Stanford University Press, 2007.
• REIMANN, M., ZIMMERMANN R. The Oxford Handbook of Comparative Law, Oxford, 2008.
• SMITS, J.M. Elgar Encyclopedia of Comparative Law, 2nd ed. Edward Elgar Publishing, 2012.

For further information regarding reference works, leading periodicals and so forth, students can also rely on various uploaded research guides. During the first session of this Workshop, students will be provided with a list of the most useful ones.


Course Materials/Supplementaries The files of some relevant readings can be found in the "Materials" part of each session as assignment, the required readings for each week are identified in the class schedule below.


Assessment Assessment includes the outcomes of tasks and activities completed individually or in collaboration with other students. The final grade will be based on :
➢ Participation, i.e. quality of the preparation, oral presentations, contribution to the discussion (70%) ;
➢ Take-home individual essay (30%)*.

* The essay must be approximately 10 double-spaced pages (12 point size, times new roman font, traditional margin settings; single-spaced footnotes, 10 point size font). Subjects will be issued the day of the last session. Essays must be submitted the beginning of February (the deadline will be indicated later ; see "Tasks" of Session 7 for further information).


Prerequisites There is no substantive knowledge requirement for taking the course. Basic understanding of the classification of legal families can be of help. Good command of English language (reading, speaking, and writing) is required.
Other Notes If students experience difficulties of any kind, they are suggested to contact Sean McGinty E-mail: smcginty@law.nagoya-u.ac.jp
Other students (up to 5), including more advanced students, are welcome in the class (for such students, the course may count as credit).



 

Lecture Theme Lecture Course Description Learning outside the class Related page
1

Session 1: Introduction: What is comparative law?






Introduction to the Workshop

a. Brief overview of « Comparative Study of Law » as an open subject
b. 'Bird's eye view' of the course (layout, short explanation of the lecture plan, presentation of the materials and introduction to the readings, ...)
c. Explanation about evaluation procedure
d. Self-introduction
e. Learning expectations

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Basics (legal families, mixed systems, what a comparative law study looks like, why we compare laws)




2 Session 2: Functional Approach to Comparative law: How do we use comparative law to evaluate real problems in society?

The functionalist method – Defining the problem without reference to law, then looking at how each country`s legal orders deal with it. Determining significance of similarities and differences.  Contrast with universalism and Common core.

 

READING:

Zweigert and Kotz (1998) 33-47

Ralf Michaels, The Functional Method of Comparative Law, Oxford Handbook of Comparative Law 338

3

Session 3: Postmodern, Socio-legal and numerical comparative study of law: How else do we approach the comparative study of law?

This session will introduce postmodern, socio-legal and numerical comparative studies of law. 

READING

Mathias Siems, Comparative Law (2014) pages 97-188



4 Session 4; Comparative law in the age of globalization: How does globalization (as an economic, social and political force) affect the comparison of national laws?

In this session we will discuss the forces of harmonization, convergence, path dependence and transnational judicial dialogue.

READINGS:

Henry Hansmann and Reinier Kraakman, The End of History for Corporate Law 89 Georgetown Law Journal 439 (2001)

Oona A. Hathaway, Path Dependence in the law: The Course and Pattern of Legal Change in a Common Law System 86 Iowa Law Review 101 (2001)





5

Session 5: Legal Transplants: Can countries effectively copy laws from other countries?






In this session we will look at how legal borrowing occurs, why it occurs, what determines the success/failure of a transplant, and critical views on transplant literature.

READINGS

Michele Graziadei, Comparative Law as the Study of Transplants and Receptions, in Mathias Reimann and Reinhard Zimmermann (eds.) Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006) 441-476.

Gunther Teubner, Legal Irritants: Good Faith in British Law or how Unifying Law ends up in New Divergences, 61 The Modern Law Review 11 (1998)

6

Session 6: Evaluating the Quality of Law in Comparative Context: Is there an ideal set of legal rules for any one problem?

 

In this session we will look at qualitative comparisons of law and efforts to identify ideal models of law.  This is notably illustrated in the approach of the World Bank in its Doing Business Reports, which attempt to rank the quality of laws across countries. 

READINGS:

 

Rafael La Porta, Florencio Lopez-de-Silanes and Andrei Shleifer, The Economic Consequences of Legal Origins 46 Journal of Economic Literature 285 (2008)

Ralf Michaels, Comparative Law by Numbers? Legal Origins Thesis, Doing Business Reports, and the Silence of Traditional Comparative Law 57 American Journal of Comparative Law 765 (2009)

7

Session 7: Comparative Law and Development: Can law itself be used as an effective tool for economic and social development?





In this session we will look at the law and development literature and the question of whether legal reform can be used as an effective tool for economic and social development.

READINGS

 John K. M. Ohnesorge, Developing Development Theory: Law and Development Orthodoxies and the Northeast Asian Experience 28 University of Pennsylvania Journal of International Economic Law 219 (2007)

 

Daniel Berkowitz, Katherina Pistor and Jean-Francois Richard, The Transplant Effect  51 American Journal of Comparative Law 163 (2003)

 

Assignments Summary:

Date Details