ABSTRACT

CRITICAL COMPARATIVE LAW
Considering Paradoxes for Legal Systems in Transition

Esin Örücü


This study is presented in eight chapters. The first chapter looks at comparative law as it faces new trends. Today, these are legal theory, legal history, culture and economics. I suggest that there is a link between these and that these are reciprocal influences, and that the way to look forward is through critical comparative law.

The paradoxes of comparative law are closely related to convergence and non-convergence theories. The next chapter examines this dichotomy and determines that it is not a matter of either-or, and then juxtaposes harmonisation and harmony.

Chapter 3 considers three paradoxes involved in modernisation and law reform by borrowings that face legal systems in transition.

Chapter 4, the Intermezzo, introduces the way in which the three case studies will test some of the concepts and theories involved in reciprocal influences. The three case studies are not comparable and they are not all testing the same concepts and theories.

The first case study (in chapter 5) considers English common law and specifically McGregor's Contract Code, and searches for answers to the question whether common law is contaminated, irritated or corrected by its historic and present encounters. Seepage, contaminant, irritant, underlay, overlay and cross-fertilisation are among the terms analysed here.

The second case study is that of the Turkish legal and social systems approaching these under the title 'hyphenated systems' (in chapter 6). Concepts of chance, choice, desire, competing legal systems, reception, imposed reception and irritant are discussed.

The third case study (chapter 7) probes into Central and Eastern European systems, systems in transition par excellence, and attempts to assess concepts such as choice, chance and necessity and the role of efficiency, prestige and elites. Again terminology such as reception, imposed reception, imitation, concerted parallel development, transpositions and layered law are evaluated in these surroundings.

The final question is posed in chapter 8: 'Can comparative legal studies offer the panacea?', followed by what is for the comparatists the most important question of all, 'Where do we go from here?' At the end of one century and the beginning of another we must ask: 'Unde venit, quo tendit comparative law?'

Cite as: Esin Örücü, Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition, vol 4.1 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (June 2000), <http://www.ejcl.org/41/art41-1.html>


Contents
1. Shifting horizons: Old and new
1.1 Comparative law: An old question
1.2 Comparative law: Facing new trends
1.2.1 Comparative law: Legal theory and jurisprudence
1.2.2 Comparative law: Legal history
1.2.3 Comparative law: Culture
1.2.4 Comparative law: Economics
1.2.5 Critical comparative law: A different name or a different approach?
1.3 The link: Reciprocal influences
2. Convergence versus divergence: Must it be either-or?
2.1 The two approaches: Are they mutually exclusive?
2.2 Harmonisation or harmony?
3. Paradoxes for recipients: Modernisation and borrowing
3.1 Pool of models and possible mismatch: Which model? Which recipient?
3.2 The first paradox: Similarity and difference
3.2.1 Which to stress?
3.2.2 The value of the different
3.3 The second paradox: Can the mismatch be corrected?
3.4 The third paradox: Contemporary character of import/export
4. Intermezzo: The test bed
5. The case of English common law: Contaminated, irritated or corrected?
5.1 Past encounters abroad
5.2 The Privy Council: Unity through diversity?
5.3 Encounters at home
5.4 Present-day encounters
5.4.1 Convergence: Concepts
5.4.2 Convergence: Statutory interpretation
5.4.3 Convergence: Codification
5.4.3.1 Introduction
5.4.3.2 The Law Commission
5.4.3.3 Commercial Code
5.4.3.4 Criminal Code
5.4.3.5 Contract Code
5.4.3.6 Coexistence of common law and civil law in Codes
5.4.3.7 European Codes in the common law context
5.5 Civil law and common law: Contaminants, irritants or correctives?
6. The case of Turkey: A hyphenated legal system?
6.1 The formation
6.1.1 Turkish import and the EU
6.1.2 Internal implications
6.1.2.1 Examples of adjustment: Legislative
6.1.2.2 Examples of adjustment: Judicial
6.2 The development
6.3 The experience: Hyphenated legal system
6.3.1 Mode One: Swiss-Turkish law
6.3.1.1 In developing principles
6.3.1.2 In the unification of precedents
6.3.1.3 In dissenting opinions
6.3.2 Mode One: Turkish-Other 'source laws'
6.3.2.1 Italian-Turkish and German-Turkish law
6.3.2.2 French-Turkish law
6.3.3 Mode Two: Layered and hyphenated existence
6.4 Assessment
7. The case of Central and Eastern Europe: Choice, chance or necessity?
7.1 Systems in transition
7.2 Legal transpositions
7.3 The elements of the present experience
7.3.1 Form and content
7.3.2 Chance
7.3.3 Prestige and efficiency
7.3.4 Elites
7.3.5 Choice
7.3.6 Culture, structure and substance
7.4 Models
7.5 Assessment
8. Can comparative legal studies offer the panacea? Where do we go from here?
Notes

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