Volume 1, Issue 3

This article examines critically the assertion that lawyers from common law and civil law backgrounds cannot truly understand one another. This idea belongs to a more general reflection about comparative law, identifying law as culture. The present enquiry into the use of comparative law as a tool for investigating the relationship between law and culture addresses three main issues. First, what does "culture" mean and how should it be defined ? It is suggested that each country has a multifaceted culture and that law and culture do not necessarily mirror one another. Secondly, the alleged markedly different mentalities of lawyers and their legal cultures are examined. It is suggested that a contextualist and cultural approach to comparative law, aimed at finding differences, is perhaps necessary but also reductive. Thirdly, in reply to the allegation that comparative lawyers do not spend sufficient time theorising about law, it is submitted that comparative law inevitably has methodological and theoretical aims. As a result, rather than concentrating on an exclusive bias towards the search for commonalities or differences, it is proposed that the art of comparative law is to compare and contrast : a two-headed monster indeed.

The democratic constitutions of 'late modernity' were grounded on New Deal projects based on the emancipation of labour and ensuing collective labour agreements, on the constitutional centrality of the welfare state, and on competition with the utopia and reality of 'real socialism'. This epoch is over: the shift to a postmodern global form of 'governance' has been fully achieved. The intensity of this shift has been such as to erase even the 'memory of the modern' and to destroy (with its very self) every political and legal apparatus of twentieth century 'social democracy'.

The aim of this paper is to show that the Civil Code for New York, written by David Dudley Field in 1865, was not enacted because of the institutional setting at the time.Following the theory of Institutional Economics by John R. Commons and Douglass C. North, there will be shown, with an institutional comparative analysis that the historical, social and economic backgrounds did not allow a Civil Code to become law in the common law society of New York. However the Field Civil Code did get enacted as California law in 1872. The institutional setting of California was different than the one of New York.There will be taken a look at the historical background of New York and California and explained why the New York Civil Code did not have a chance to be enacted in New York, but did so in California. Also, attention will be given to the social and power structures of New York and California in the middle of the 19th century and the position of the lawyers. The lawyers played an important role to what happened to the Civil Code in both states. Their role in California is of special importance, since they managed to use the Field Civil Code in their own interest and in that way influenced the evolution of California law in between Common Law and Civil Law. Consequently it will be shown how important the historical and social background is for the evolution of law in a society. And that informal institutions have to be taken into consideration when introducing formal institutions.

This article highlights the methodological value of legal families in micro-comparative law from Nordic point of view. The author attempts to offer a preliminary theoretical answer to the question of what legal families in fact are when seen from methodological point of view. The author claims that legal families should be conceived as Weberian “ideal-types”; generalized descriptions of legal systems. This means that a legal family is not the empirically corresponding description of a group of legal systems, but a conceptual device that provides methods for such description. As “ideal-types”, legal families are advantageous for enhancing comparative legal studies. Legal families also have a definite methodological role in the research-process of comparative law.A draft version of this paper was originally presented in A Nordic Research Seminar: Do We Need Legal Families? 10th May 2001, Helsinki. Thanks to the organizer Pia Letto-Vanamo for allowing publication in Global Jurist.

This paper is based on a presentation made to the participants of the Trento Common Core Project in July 1999.

This paper describes the Belgian Law on universal jurisdiction for crimes against humanity and its application in a trail against four Rwandan suspects. The paper shows the innovative character of the 1993 law as well as the unprecedented application of this law. We give details on the accusations of the four suspects and show how the trial revealed previously unknown facts about the genocide. We deal with the impact and the criticism of the trial. Furthermore, the implications of the law and the trial for Belgian foreign policy making are addressed. The case against the Prime Minister of Israel puts the law and Belgian jurisdiction in the international spotlight.

The implementation of China's economic reforms, beginning in the early 1980's, and the formal establishment of a “Socialist Market Economy” in the following decade, stimulated substantial changes and improvements in the Insurance Laws and Regulations of the People's Republic of China (hereafter: PRC). The need for a modern and sophisticated legal framework aimed at regulating rights and remedies arising out of insurance contracts, as well as the insurance business in general, became clear and compelling as soon as the Communist State began its slow but inexorable retreat and it ceased to take care of every aspect of the life of the Chinese People.In the new socialist market context, the insurance contract is predestined to become the most important legal and economic tool available to those individuals who are not willing and/or able to bear the entirety of the risks associated with the implementation of the modern economic reforms.Against such backdrop, this paper is aimed at exploring the history of insurance in China as well as the framework of insurance laws and regulation enacted in the PRC during the recent years. In particular, the focus of this essay will be upon the legal principles and rules that currently govern insurance contracts and the relationship thereby established between the insurance company and the insured. Hence, the analysis of the legal protection of policyholders' rights and interests in China will center around the rules of insurance contracts interpretation, integration and performance at present in force. In light of the international nature of the contract of insurance, this paper will also offer a comparison of different approaches to policyholders' protection adopted in various legal systems belonging to both the common law and the civil law tradition.