16. the quest for
methodology
• general character • suitability of
of comparative topics
law
• comparative
• subject matter method
requirements
• macro v micro
• test of
functionality
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30. 1. Identify the problem. 5. Organise the material.
2. Identify the foreign 6. Provisinally map out the
jurisdiction & its parent possible answers to the
legal family. problem.
3. Decide the primary 7. Critically analyse the
sources of law & legal principles.
materials.
8. Set out conclusions
4. Gather & assemble the within the comparative
material relevant to the framework with caveats
jurisdiction being & with critical
examined. commentary.
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33. • comparative law in courts
• comparative law & legislator
• comparativism & the verdict
• case law in non-common law jurisdictions
• styles of judicial decision
• overriding general principles
Thursday, 24 June 2010 33
38. “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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39. 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
Thursday, 24 June 2010 39
40. the three phases
• discovering: what is found
• understanding: what is to
be used
• applying: how far
Thursday, 24 June 2010 40
41. certain practical considerations
• language skills
• national insularity or pride: rule of proof;
common law as a whole
• pressures: time & volume of work
• budget
Thursday, 24 June 2010 41
42. “[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 ...”
Thursday, 24 June 2010 42
43. “[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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