สไลด์ประกอบการศึกษาวิชา น.๗๘๖ ครั้งที่ ๓ (๓๐ มิถุนายน ๒๕๕๔)

.
Wednesday, 22 June 2011
an introduction
an introduction
Peter de Cruz, "Techniques of comparative law", in Comparative law in a changing world (London, 2007), pp. 219-249.
quest for methodology methods

major pitfalls & perils
major pitfalls & perils
linguistic & cultural

differences
terminological problems
objects of study
comparability legal pattern bias exclusion &

ignorance
linguistic & terminological problems
cultural differences between legal systems
arbitrary selection of objects of study
comparability in comparison
viability of theory of a common legal pattern
imposition of ones own legal conceptions
the four law jobs
conict resolution adaptation & social change norm enforcement

social control
omission of extra-legal factors
general character
of comparative law
the quest for methodology

topics
suitability of comparative test of

functionality method requirements
subject matter macro v micro
clarifying the general character of comparative law
the subject matter of the comparison
macro-comparison & micro-comparison
comparative method: requirements
the test of functionality
comparative legal methods

Kambas three-stage approach a blueprint
Kambas three-stage-approach
the identication phase the explanatory phase

the descriptive phase
the descriptive phase

norms concepts institutions socio-economic problems legal problems legal solutions
the identication phase
similarities
differences
the explanatory phase
resemblances dissimilarities
no one single method applicable
a blueprint
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.
comparative law in courts comparative law & legislator comparativism & the verdict case law in non-common law jurisdictions styles of judicial decision overriding general principles
comparative law in courts
a tool of law reform

a tool of interpretation
sovereignty v uniformity of outcome
comparison illuminate our understanding
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.
functional use of foreign law

a tool of interpretation to look for solutions to promote a change to ll in a gap to discard an unsatisfactory solution
the three phases

discovering: what is found understanding: what is to be used applying: how far
certain practical considerations

language skills national insularity or pride: rule of proof;
common law as a whole
pressures: time & volume of work budget

[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 ...
[It] cannot be right to attempt to construe acquiesced by reference only to its possible meaning at common law or equity.
comparative law & legislator
a tool of law reform

a tool of interpretation
justication of comparativism & the verdict
the authority of case law in non-common law jurisdictions
interpreters v law makers
lower courts v superior courts
styles of judicial decision
French German Swedish American

English
the relevance of overriding general principles
bona des/good faith good morals and public order custom

aequitas
Administrative law? The subjects? Power allocation? The procedure? The instutions? The judicial control? Liability?
What is administrative law?
What are the subjects of administrative law?
the allocation of powers
administrative procedure
institutions providing legal redress
the judicial control of power
liability of the administration
conclusion

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สไลด์ประกอบการศึกษาวิชา น.๗๘๖ ครั้งที่ ๓ (๓๐ มิถุนายน ๒๕๕๔)

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.

Wednesday, 22 June 2011

Wednesday, 22 June 2011

Wednesday, 22 June 2011

Wednesday, 22 June 2011

quest for methodology methods

major pitfalls & perils

linguistic & cultural

comparability legal pattern bias exclusion &

linguistic & terminological problems

Wednesday, 22 June 2011

cultural differences between legal systems

Wednesday, 22 June 2011

arbitrary selection of objects of study

Wednesday, 22 June 2011

Wednesday, 22 June 2011

viability of theory of a common legal pattern

Wednesday, 22 June 2011

imposition of ones own legal conceptions

Wednesday, 22 June 2011

the four law jobs

conict resolution adaptation & social change norm enforcement

omission of extra-legal factors

Wednesday, 22 June 2011

the quest for methodology

suitability of comparative test of

subject matter macro v micro

Wednesday, 22 June 2011

clarifying the general character of comparative law

Wednesday, 22 June 2011

the subject matter of the comparison

Wednesday, 22 June 2011

macro-comparison & micro-comparison

Wednesday, 22 June 2011

comparative method: requirements

Wednesday, 22 June 2011

the test of functionality

Wednesday, 22 June 2011

comparative legal methods

Kambas three-stage approach a blueprint

Wednesday, 22 June 2011

the identication phase the explanatory phase

the descriptive phase

the identication phase

the explanatory phase

no one single method applicable

Wednesday, 22 June 2011

Wednesday, 22 June 2011

Wednesday, 22 June 2011

Wednesday, 22 June 2011

Wednesday, 22 June 2011

comparative law in courts

Wednesday, 22 June 2011

a tool of law reform

sovereignty v uniformity of outcome

Wednesday, 22 June 2011

comparison illuminate our understanding

Wednesday, 22 June 2011

functional use of foreign law

the three phases

discovering: what is found understanding: what is to be used applying: how far

certain practical considerations

pressures: time & volume of work budget

comparative law & legislator