Band 23, Heft 3 - Special Issue: Comparative Law Methodology: A Tool for Analysing the Complex Contemporary Intercultural Context, Guest Edited by Elena Ioriatti and Andrea Pradi

The Court of Justice of the European Union (CJEU) interprets directives and regulations, forming what will be called a hybrid space where national legal systems and supranational elements converge, particularly when asserting the autonomy of a notion. Comparative law has supported legal norm harmonisation but has also revealed the diversity within legal systems, including the EU’s, through the study of legal formants. The goal of this contribution is to show how a comparative approach, incorporating the concept of hybridity from other disciplines, can aid in analysing autonomous interpretation and the influence of hybridisation on legal concepts and terminology.

The present article is grounded in the following inquiry: are the rules concerning contractual interpretation provided by codified regulations or developed by jurisprudence for private law contracts also applicable to smart legal contracts? This question will be addressed through the utilization of a comparative research methodology, taking into account the trends embraced by scholars as well as by courts in both common law and civil law systems. In conclusion, and based on these methodological premises, various solutions present themselves to the interpreter, including the non-complete exclusion of the non-complete exclusion of the interpretative model based on the so-called contextualist theory. A similar theoretical approach would allow for an efficient synthesis between the more ambiguous legal expressions and the use of technological language.

The contribution deals with the representation of African law in comparative legal literature. It aims at moving forward from an understanding of African legal systems as bounded entities, frequently dubbed “pluralistic” but too often described as derivative from western law, that is the law of the former colonial powers. The paper reacts to common representations of African law based on the “stratigraphic approach” and on the notion of legal pluralism. While remaining a valuable tool for the study of African legal systems in a structuralist fashion, the stratigraphic approach ultimately fails to capture the more dynamic dimension of legal relations and the agency of legal subjects better conveyed by the notion of legal pluralism. The notion of legal pluralism, in turn, points at the existence of plural normative orders in all legal systems, therefore it seems to have lost its specificity to post-colonial African societies. Moreover, research on legal pluralism has become progressively dominated by academic lawyers adopting a normative and theoretical approach with little regard for empirical observation of law in society.

Despite the polysemic nature a unique and dominant model of “property” has spread globally. It finds in the natural law thought its political and moral justification and in the article 544 of the Napoleonic Code its technical translation. The simple rhetoric of proprietary individualism elaborated within the economic analysis of law become the institutional reference in the governance of global economy. But private property is only one model of resources distribution and has not always been the main one for a long time. Comparative legal method shows us that the term property does not have a unique meaning, but it reveals the existence of alternative resource management models such as collective actions that are careful for the protection of fundamental rights and can preserve natural resources for the benefit of future generation.

Although the geographical area historically known as “Persia” has never been properly a “fertile land”, water shortage did not represent a problem for the diverse and multiple populations that inhabited the Iranian Plateau throughout millennia. The ancient Persian civilization could flourish thanks to sophisticated water knowledge and water management strategies that allowed it to become the dominating culture of the vast Persian Empire, which by the year 500 BC, extended from the borders of India to the western coasts of Minor Asia and the Caucasus. Even after the fall of the empire, the successive populations could live in arid areas thanks to an ancient system of water provision and management called “Qanat”. Qanats not only provided water from an underneath water spring to desert lands and remote areas of the region; they also reflected a specific “water cultural system” based on sharing and managing water as a common good. The paper will discuss how water shortage in present day Iran is, on the one hand, related to a progressive abandonment of the Qanats system, substituted by the use of modern irrigation systems, the privatization of water and the progressive abandonment of the common. On the other hand, this abandonment is related with dramatic cultural change and weakening of community identity, impacting the sustainability of human life in the Iranian Plateau’s arid areas.