The Oxford Handbook of Comparative Law (Oxford Handbooks)

This fully revised and updated second edition of The Oxford Handbook of Comparative Law provides a wide-ranging and diverse critical survey of comparative law at the beginning of the twenty-first century. It summarizes and evaluates a discipline that is time-honoured but not easily understood in all its dimensions. In the current era of globalization, this discipline is more relevant than ever, both on the academic and on the practical level. The Handbook is divided into three main sections. Section I surveys how comparative law has developed and where it stands today in various parts of the world. This includes not only traditional model jurisdictions, such as France, Germany, and the United States, but also other regions like Eastern Europe, East Asia, and Latin America. Section II then discusses the major approaches to comparative law - its methods, goals, and its relationship with other fields, such as legal history, economics, and linguistics. Finally, section III deals with the status of comparative studies in over a dozen subject matter areas, including the major categories of private, economic, public, and criminal law. The Handbook contains forty-eight chapters written by experts from around the world. The aim of each chapter is to provide an accessible, original, and critical account of the current state of comparative law in its respective area which will help to shape the agenda in the years to come. Each chapter also includes a short bibliography referencing the definitive works in the field. COVER THE OXFORD HANDBOOK OF COMPARATIVE LAW COPYRIGHT PREFACE TO THE SECOND EDITION PREFACE TO THE FIRST EDITION CONTENTS NOTES ON THE CONTRIBUTORS ABBREVIATIONS PART I: THE DEVELOPMENT OF COMPARATIVE LAW IN THE WORLD Chapter 1: Comparative Law Before the Code Napoléon I. The Ancient World II. The Early and High Middle Ages III. The Later Middle Ages IV. Sixteenth-Century French Legal Thinkers V. The Seventeenth and Eighteenth Centuries Bibliography Chapter 2: Development ofComparative Lawin France I. The Rise of Comparative Law in France 1. The premiers pas of Comparative Law in France 2. The belle époque of Comparative Law (a) The Paris Congress of 1900 (b) From the Paris Congress of 1900 to World War I (c) From World War I to World War II (d) After World War II (e) René David’s Book, Les grands systèmes de droit contemporain II. The Decline of Comparative Law 1. Comparative Law: A Collateral Science 2. The Marginal Position of Comparative Law in French Law Faculties (a) Insufficient Teaching of Comparative Law (b) Insufficient Incentives for Students to Engage in Comparative Legal Studies III. The Renaissance of Comparative Law in France 1. New Initiatives (a) Courts (b) New Legislators: The Example of French Contract Law (c) Practice 2. New Challenges (a) American Critique and the Revitalization of Comparative Law (b) An International Approach to Comparative Law (c) A Wider Recognition of the Practical Uses of Comparison IV. Concluding Remarks Bibliography Chapter 3: Development of Comparative Law in Germany, Switzerland, and Austria I. Introduction II. The Long Nineteenth Century 1. Philosophical and Political Traditions 2. The Evolutionary Paradigm 3. Legislative Comparative Law 4. Early Stages of Institutionalization III. A Golden Age (1919–1933) 1. The Weimar Republic and the Pre-eminent Influence of Ernst Rabel 2. The Kaiser-Wilhelm Institutes 3. Sale of Goods IV. Rupture and Remorse (1933–1950) 1. The Policy of Gleichschaltung 2. National Socialist Comparative Law? 3. Continuity V. Recovery (1950–1989) 1. General Aspects and Institutionalization 2. Methods and Fields of Interest (a) Methodological Foundations (b) Fields of Interest 3. Comparative Law Scholarship in the Post-War Era: Some Highlights (a) Comparative Law in General (b) Law of Sales (c) Tort Law (d) Law of Restitution (e) Family Law and the Law of Succession (f) Conflict of Laws 4. Comparative Law in Legislation and Courts VI. Legal Harmonization and New Approaches to Comparative Law 1. Development of the German Bürgerliches Gesetzbuch 2. The Interpretation of Uniform Law 3. Europeanization (a) The Classical Comparative Approach (b) The Ius Commune Approach (c) Practical Endeavours 4. Criticism VII. Conclusion Bibliography Chapter 4: Development of Comparative Law in Italy I. Introduction: Layers of Reception II. Development: The Emergence of the Modern Discipline 1. Civil and Commercial Law Scholars in the Early Twentieth Century: To Cross or Not to Cross (the Channel) 2. The Reformists in the Post-World War II Period: Broadening the View 3. The Emergence of the Mainstream in the 1950s and 1960s: From Gorla’s Contracts to Sacco’s Formants 4. Institutionalizing the Field in the 1970s and 1980s: The Dominance of Private Law Comparison III. The Contemporary Scene: From Purity to Pluralism 1. The Theses of Trento 2. Letting Many Flowers Bloom: The 1990s and Beyond IV. Current Challenges and Future Directions: The Discipline Struggles with its Past 1. Beyond the Private Law Bias? 2. The Lack of Political Influence 3. Interdisciplinary Trends V. From Import to Export? Italian Contributions to Comparative Law in Europe and Beyond Bibliography Chapter 5: Development of Comparative Law in Great Britain I. Introduction II. Empire: Evolution and Legislation 1. Problems of Empire 2. Comparative Evolutionary and Historical Jurisprudence 3. The Society of Comparative Legislation III. Modern Foundations 1. The Pioneers (a) Gutteridge (b) Walton (c) Amos (d) Goadby (e) Vesey-Fitzgerald (f) Lee 2. Foreign Links: Institutes and Academies 3. The Society of Comparative Legislation 4. Comparative Law in the Universities 5. An Imperial Law School and Advanced Legal Studies 6. The Society of Public Teachers of Law 7. The Achievements of the Pioneers IV. Beyond Empire: New Directions 1. Scholarly Legacy of the Pioneers (a) The Fundamental Role of Roman Law (b) The Importance of French Law (c) Unification (d) Mixed Systems 2. Institutional Legacies (a) Institute of Advanced Legal Studies (b) British Institute of International and Comparative Law (c) International Academy of Comparative Law (d) International Committee of Comparative Law and the UKNCCL (e) The Law Commissions 3. New Developments (a) German Law and Comparative Legal Science (b) Legal Transplants (c) The Revival of Interest in Mixed Systems V. Disciplinary Uncertainty Bibliography Chapter 6: Development of Comparative Law in the United States I. Introduction II. Comparative Law prior to 1791 1. Roman and Civil Law in Colonial British America 2. Legal Foundation for the New Republic III. Comparative Law in the Formative Era (1791–1865) 1. Resistance to English Law 2. Use of Roman and Civil Law 3. Livermore, Story, and Kent 4. Lieber, Legaré, Walker, Hoffman, and Cushing 5. David Field and His Codes IV. Comparative Law and Historical Jurisprudence (1865–1900) 1. Historical Jurisprudence 2. Making Legal Education Scientific 3. The First Academic Comparatists V. Organized Comparative Law: The First Effort (1900–1950) 1. University Law Schools 2. The 1904 Universal Congress of Lawyers and Jurists 3. The Comparative Law Bureau 4. The Bureau’s Support for Publications 5. American Comparatists Abroad and at Home 6. Tulane University College of Law 7. Roscoe Pound 8. John Wigmore 9. The 1930s: Achievement during a Difficult Period VI. Firmly Establishing Comparative Law (since 1950) 1. The Post-War Period 2. UNESCO, the AFLA, and the AALS 3. The American Association for the Comparative Study of Law 4. The American Journal of Comparative Law 5. Growth and Maturity: The American Society of Comparative Law 6. Scepticism and Assessment VII. Conclusion Bibliography Chapter 7: Comparative Law in Central and Eastern Europe I. Comparative Law in Central and Eastern Europe before Communism II. Comparative Law during Socialism 1. Comparative Law in the Soviet Union before Stalinism 2. Comparative Law During Stalinism 3. Comparative Law from the 1960s through the 1980s III. Comparative Law after the Fall of Communism: From Comparative Civil Law to Comparative Constitutionalism? 1. The Transformation of Communist Law and the Role of Comparative Law 2. Post-Communist Legal Academia and Comparative Law 3. Comparative Constitutional Law IV. The Prospective of Comparative Law in the Region of Central and Eastern Europe Bibliography Chapter 8: The Development of Comparative Law in Japan I. Introduction II. History Matters 1. Importing Foreign and Comparative Law into Japan 2. Exporting Japanese Law III. Comparative Law Activity Within Contemporary Japan 1. Consumer Protection and Civil Law Amendments 2. Gradual Transformation in Corporate Law and Practice 3. Justice System Reform IV. How to Compare and Assess Japanese Law 1. Five Theories of Law: From Civil Dispute Resolution Studies 2. Five Methodological Lessons: From Comparative Corporate Law Studies V. Conclusions and Challenges Bibliography Chapter 9: The Development of Comparative Law in Modern China I. The Origins of Self-Doubt: The Late Qing II. The New Paradigm: The Republican Period III. The Reception of Soviet Law: Communist China’s Turn Away from the West IV. Ideological Struggle: Foreign and Comparative Law in the Post-Mao Era V. Conclusion Bibliography Chapter 10: Development of Comparative Law in Latin America I. Introduction II. The Colonial Period 1. First Legal Structures 2. The Existing Spanish Legal Order 3. The Cradle of Comparative Law in Portugal and Brazil III. Independence and Codification 1. The Latin American Constitutions 2. Codification Efforts (a) Early Copying of Foreign, especially French, Law (b) Indigenous Attempts to Codify Civil Law and the Role of Foreign Law (c) Bello and Ocampo in Chile (d) Teixeira de Freitas in Brazil (e) Vélez Sarsfield, Acevedo, and Narvaja in Argentina and Uruguay (f) Further Developments between Mimicry and Wild Eclecticism (g) Bevilaqua and Comparative Law in Brazil 3. Summary of the Development in the First Century of Independence IV. From the Twentieth Century to the Present Day 1. The Growing Influence of the Common Law 2. A Battlefield for Influence: The Unification of Law (a) Pan-Americanism versus Ibero-Americanism (b) Unification of Home-Grown and Transplanted Law: CIDIP (c) The Role of ‘Sub’-Regional Integration: MERCOSUR and the Andean Community (d) Copying European Softness: The Principles of Latin American Contract Law 3. Developments Determining, and Determined by, Comparative Law (a) The High Degree of Eclecticism (b) The Authority and Challenges of Comparative Law (c) Comparative Law in Action: The Supreme Courts of Argentina and Brazil V. Final Remark Bibliography PART II: APPROACHES TO COMPARATIVE LAW Chapter 11: Comparative Law and Comparative Knowledge I. Introduction II. Analysing Comparison 1. Comparison and Classification 2. Comparison and Qualification 3. Judging Similarity and Difference 4. Choosing Tertia Comparationis: What Matters? 5. Complex Comparisons: Family Similarity and the Idea of an Idealtypus III. Comparing Comparisons: Interests and Methods 1. Historical Linguistics: Searching Genetic Relations (a) A ‘Science of Language’ (b) The Comparative Method (c) Some Observations 2. Comparative Religion: Complex Typologies for a Complex Reality (a) The Idea of a Comparative Religionswissenschaft (b) The Comparative Method (c) Some Observations 3. Understanding Social Change: General Explanations for Historic Developments? (a) Towards a ‘Histoire Comparée’ (b) Comparison and Theory IV. Concluding Remarks V. Summary Bibliography Chapter 12: Comparative Law in Legal Education I. Introduction II. Why and How to Teach Comparative Law? Perennial Discussions 1. The Purpose of Comparative Law as an Academic Subject 2. The Role of Comparative Law in the Curriculum 3. Student Abilities and Preferences III. Comparative Law in the Curriculum 1. Comparative Legal Education Before 1900 (a) The Role of Comparative Law in US Legal Education (b) The Role of Comparative Law in European Legal Education 2. Comparative Legal Education between 1900 and World War II: Modern Beginnings (a) The Impact of World War I (b) The American Debate about How to Teach Comparative Law 3. Post-World War II to the 1980s: Reversal of Fortune (a) Emigrėe Comparatists and the Resurgence of Comparative Law in US Legal Education (b) Phoenix from the Ashes: The Ascent of Comparative Law Teaching in Europe IV. Comparative Law in Legal Education Today 1. The Important Role of Comparative Law Teaching in the European Union 2. International and Transnational Law: Threat or Support for Comparative Law in the United States? 3. Comparative Law in Australia and Canada: A Mixed Reception V. An Outlook Bibliography Chapter 13: The Functional Method of Comparative Law I. ‘The Functional Method’ II. Concepts of Functionalism 1. Finalism 2. Adaptionism 3. Constructivist Functionalism 4. Classical Functionalism 5. Instrumentalism 6. Refined Functionalism 7. Epistemological Functionalism 8. Equivalence Functionalism 9. Functionalist Comparative Law: Synthesis or Eclecticism? III. Functions of Function 1. The Epistemological Function: Understanding Law 2. The Comparative Function: Tertium Comparationis 3. The Presumptive Function: Praesumptio Similitudinis 4. The Systematizing Function: Building Systems and Paradigms 5. The Evaluative Function: Determining the Better Law 6. The Universalizing Function: Unifying Law 7. The Critical Function: Critique of Legal Orders IV. Conclusion: Towards Interpretative Functionalism Bibliography Chapter 14: Comparative Law: Study of Similarities or Differences? I. Introduction II. History and the State of the Debate 1. Unification, Functionalism, and the Presumption of Similarity (a) Unification (b) Functional Approach (c) Legal Families and Legal Traditions (d) Macro- and Microcomparison (e) Similarity of Problems and Results 2. Criticism of Functionalism and the Emphasis on Difference (a) Gutteridge and Ancel (b) Difference Theory (c) Diversity in Legal Process and Dynamics 3. Reconciliation? 4. Evaluation of the Contemporary Debate III. Reasons to Look for Similarities or Differences 1. Linking Rules to Effects 2. Complex Enquiries 3. Purposes of Comparative Legal Enquiries (a) Unifying Law (b) Solving Particular Problems (c) Applying Foreign Law (d) Facilitating Choice between Legal Systems (e) Understanding Law IV. Steps of Comparative Enquiries 1. Selection (a) Basis of Comparison (b) Legal Systems 2. Description (a) Legal Institutions and Rules (b) Legal Context (c) Non-legal Context (d) Results 3. Analysis (a) Explaining Differences and Similarities (b) Learning between Legal Systems 4. Summary Bibliography Chapter 15: Comparative Legal Families and Comparative Legal Traditions I. Introduction II. The Taxonomic Project III. Taxonomy and Stasis IV. Taxonomy, Comparison, and Conflict V. Eurocentrism VI. Legal Families, Legal Traditions, and the Laws of the World VII. Conclusion VIII. Postscript by the Editors Bibliography Chapter 16: Comparative Law, Transplants, and Receptions I. Introduction II. Terminology III. Some Classical Cases 1. The Reception of Roman Law in Europe and in Other Parts of the World 2. Some Civil Codes and their Diffusion 3. The Diffusion of the Common Law 4. Constitutional Transplants, Borrowings, and Migrations IV. Global Governance as a Source of Legal Transplants V. Legal Transplants, Language Contact, and Legal Translation VI. Factors of Change 1. Imposition 2. Prestige 3. Economic Performance and the Transplant of Legal Institutions VII. What Change? VIII. Legal Transplants and Receptions as Unsettling Topics 1. Law and Authority 2. Law and Society IX. Lessons X. Conclusion Bibliography Chapter 17: Comparative Law and The Study of Mixed Legal Systems I. Introduction II. Key Concepts 1. ‘Mixed Jurisdictions’ and ‘Mixed Legal Systems’: From the ‘Classical’ to the ‘Liberal’ Approaches 2. ‘Legal Pluralism’: The ‘Classical’, ‘New’, and ‘Global’ Phases 3. ‘Hybridity’ III. Mixed Legal Systems and Comparative Representations of Legal Systems 1. Legal Families (a) The Classical or Old Mixes: Palmer’s (Small) ‘Third Legal Family’ (b) Enter the ‘New’ Mixes: The Ottawa Study’s Fifth (Large) Legal Family 2. Mixed Systems and Alternatives to Legal Families (a) Örücü’s Family Trees and Maps (b) Glenn’s Legal Traditions IV. The Experiences of Mixed Legal Systems: Some Features and Lessons 1. Debates on the Balance of the Mix: Purists, Pragmatists, and Pollutionists 2. The Cultural and Religious Dimension 3. Mixed Systems and Fundamental Rights 4. Mixed Legal Systems and the Development of European Private Law 5. The Value of Mixed Legal Systems: Laboratories of Comparative Law? V. Conclusions Bibliography Chapter 18: Comparative Law and Its Influence on National Legal Systems I. Introduction II. Comparative Law and the National Legislatures III. Comparative Law and the National Courts 1. Introduction 2. Voluntary Recourse to Foreign Law in Domestic Disputes IV. The Legitimacy of Comparative Law Influence: Why Comparative Inspiration? 1. A Categorization of Types of Comparative Influence 2. The Legitimacy of Comparative Reasoning V. Motives, Strategies, and Differences Among Countries in Valuing Foreign Law 1. Introduction 2. Motives and Strategies in Comparative Reasoning 3. Differences in the Extent to which Different Legal Systems are Open to Foreign Influence VI. Finally: The Influence of Comparative Reasoning on National Law Bibliography Chapter 19: Comparative Law and European Union Law I. Introduction 1. The Perspective of Comparative Law 2. The Nature of European Law 3. Civil and Common Law Systems II. Components (Sources) of European Law 1. The Treaty Provisions 2. Basic Treaties, But No Formal Constitution 3. Progressive Constitutionalization: The Example of Fundamental Rights 4. Constitutional Principles Developed by the Court of Justice 5. Legislation (a) The Legislature (b) Forms of Legislation (c) Style and Content of Legislation (d) Interpretation of European Legislation 6. General Principles of Law (a) The Derivation and Use of General Principles of Law (b) The Principle of Proportionality 7. Public International Law (a) Customary International Law (b) Treaties (c) Treaty-Making Competence (d) The Effect of Treaties Within the EU Legal Order (e) The United Nations Charter III. The European Judicial System 1. Introduction 2. The Court of Justice 3. The General Court 4. Constitution of the Court of Justice 5. Jurisdiction of the Court 6. How the Court of Justice Works (a) Procedure (b) Working Methods 7. The Character of the Court’s Judgments and the Treatment of Judicial Precedent 8. The Reasoning of the Court of Justice 9. The Court of Justice and Comparative law IV. Private Law and Public Law 1. Competition Law 2. European Law and National Private Law V. The European Union and Federal Systems 1. Competences 2. The European System and Federal Systems VI. Other Judicial Systems Inspired by the European Model 1. The EFTA Court 2. Other Transnational Courts VII. Conclusion Bibliography Chapter 20: Comparative Law and The Europeanization of Private Law I. Prologue: Unification of Private Law as a Task for Comparative Legal Studies II. The Europeanization of Private Law 1. From Rome to Lisbon: The Creation of the European Union 2. A Patchwork of Directives 3. The Role of the European Court of Justice 4. Towards a European Sales Law? III. European Legal Scholarship IV. The Contribution of Comparative Law 1. Legal Training 2. Making the Legal Materials Readily Accessible 3. Disregarding the National Boundaries: The Case of Contract Law 4. Common Conceptual Structures? The Cases of Delict and Unjustified Enrichment 5. Establishing Networks: The New Law Journals 6. Finding the Common Core 7. Bridging the Channel 8. Principles of European Contract Law (a) Scope, Approach, Characteristic Features (b) Purposes and Perspectives 9. Principles of European Tort Law 10. More Principles 11. Codification Projects V. Where We Stand Today 1. Contract Law . . . 2. . . . and Beyond VI. Preserving the Momentum Bibliography Chapter 21: Globalization and Comparative Law I. The Methodological Challenge 1. From Nation States to Epistemic Communities 2. From a Static to a Dynamic Perspective 3. Abandoning the Private Law Focus II. The Ideological Challenge 1. The Contemporary Academic Retreat 2. The Unacknowledged World Vision of Comparative Law 3. Comparative Knowledge and Issues of Global Governance III. The Practical Challenge 1. Increased Information and Interconnectedness 2. The Rise of Transnational Uniform Law Bibliography Chapter 22: Comparative Law and The Islamic (Middle Eastern) Legal Culture I. Islamic Law and Civilization: The Comparative Framework II. The Rule of Law in the Prism of the Legal Profession 1. The Classical Legacy 2. The Contemporary Scene III. Public and Private Law: Select Comparative Issues 1. Constitutions: Personal versus Territorial Models 2. Contracts and Torts: Defining an Islamic Style 3. Family Law: The Search for Gender Equality (a) Classical Law (aa) Marriage (bb) Termination of marriage (cc) Custody (dd) Succession (b) Reform Project (aa) Marriage (bb) Termination of Marriage (cc) Custody (dd) Succession IV. Epilogue Bibliography Chapter 23: Comparative Law and African Customary Law I. Positioning African Customary Law in Comparative Legal Studies II. The Colonial Encounter III. The Transformation of Customary Law into a Western Legal Form 1. The Transcription of Oral Laws to Written Form 2. The Nature of Oral Law 3. The Effects of Writing 4. Transcription and Translation 5. Legal Terminology IV. Legal Anthropology: Changes in Theory 1. Evolutionism 2. Functionalism 3. Process and Dispute Resolution 4. Neo-Marxist Theory and Deconstruction V. Decolonization VI. Legal Pluralism 1. Positivism and the Pluralist Critique 2. The Implications of Pluralist Research: ‘Living’ and ‘Official’ Customary Law 3. Problems with the Pluralist Perspective VII. Conclusion: The Challenge for Comparative Law Bibliography Chapter 24: Comparative Law and Language I. Introduction II. Simple Observations III. Plurilinguism, Imagination, and Comparative Law IV. The Universal and the Particular in Post-War Comparative Law and Language V. More Recent History 1. Languages and Comparative Law Theory in the Post-War Generation 2. The Next Generation VI. Babel VII. Language Deflation and the Growth of the Non-national VIII. Familiarity and Foreignness IX. Translating European Law: Examples X. Conclusion Bibliography Chapter 25: Comparative Law and Legal Culture I. Introduction II. Law Inside Culture III. Cultures as Fields of Similarity 1. European Legal Culture 2. Components of Culture 3. Who Defines Culture? IV. Legal Culture and Legal Change V. Identifying and Interpreting Legal Cultures VI. Celebrating Difference 1. Multiculturalism and Legal Pluralism 2. European Legal Integration 3. Globalization and Legal Parochialism VII. Disaggregating Culture Bibliography Chapter 26: Comparative Law and Religion I. Introduction II. The Literature of Comparative Law and Religion III. The Key Methodological Challenge: Can We Distinguish ‘Law’ from ‘Religion’? IV. The Axial Age Transformations V. Fikentscher on the Axial Age Transformations VI. The Relationship between Law and Ritual VII. Institutional Transformations: Textual Interpretation and Monasticism VIII. Conclusion Bibliography Chapter 27: Comparative Law and Legal History I. Introduction II. Origins 1. Legal History 2. Comparative Law III. The Common Mistake 1. The Existence of a ‘Legal System’ 2. The Search for Principles Unifying Legal Systems (a) Unity of ‘Geist’ (b) Unity of Economic Purpose IV. The Need for Mutual Support 1. Legal History in the Service of Comparative Law 2. Comparative Law in the Service of Legal History V. Conclusion Bibliography Chapter 28: Comparative Law and Socio-Legal Studies I. Introduction II. Labouring in the Long Shadow of Weber III. Traditional Distance IV. Comparative Law beyond Europe and the Americas V. Legal Pluralism VI. The Rapprochement 1. Globalization of the Legal Profession 2. Law and Development/Rule of Law/Harmonization Projects 3. National and Local Effects of Global Legal Forms 4. New Debates about Legal Pluralism 5. Legal Transplants 6. Legal Culture VII. Consensus Items: Stepping Outside Weber’s Shadow 1. A Transnational Focus is Indispensable 2. The Stark Distinction between Law and Society has Outlived its Utility 3. The Distinction between Normative and Descriptive Argument is also No Longer a Fruitful Way of Delineating Disciplinary Boundaries 4. The Transplant Concept, at least in its Strong Form, is Too Crude 5. The Culture Concept, at least in its Strong Form, is also Too Crude VIII. Emerging Work on Legal Knowledge: Reclaiming the Weberian Tradition Bibliography Chapter 29: Comparative Law and Critical Legal Studies I. For Starters: Defining the Key Question II. Critical Legal Studies Meets Comparative Law: A Tour d’Horizon III. Disruption or Continuity? 1. The Assault on the Traditional ‘Canon’ 2. Functionalism and Structuralism 3. Critiques of Transplants and Receptions 4. Exploring ‘Legal Consciousness’ 5. Other Areas of Activity and Contexts of Critique IV. Conclusions: A Sympathetic Critique of the Critique Bibliography Chapter 30: Comparative Law and Economic Analysis of Law I. Economic Analysis of Law: A Short Sketch 1. Positive Economic Analysis 2. Normative Economic Analysis II. One Discipline as an Ancillary Discipline to the Other 1. Economic Analysis as an Ancillary Discipline to Comparative Law (a) The Descriptive Approach to Comparative Law (b) The Normative Approach to Comparative Law 2. Comparative Law as an Ancillary Discipline to Economic Analysis (a) The Danger of Being Unrealistic (b) The Choice of the Rules to Be Examined (c) The Prediction of People’s Behaviour (d) Summary 3. An Example (a) The Comparatist’s Perspective (b) The Perspective of Economic Analysis of Law 4. Summary III. One Discipline as Subject Matter of the Other 1. Comparative Economic Analysis of Law (a) Application of Law (b) Legislation 2. Economic Analysis of Comparative Law (a) Positive Economic Analysis of Comparative Law (b) Normative Economic Analysis of Comparative Law IV. Comparative Law and Economics—A New Discipline? Bibliography Chapter 31: New Directions in Comparative Law I. Introduction II. Methods of Comparative Law 1. Prologue 2. Modifications of Traditional Methods 3. Extending Methods 4. Interdisciplinary Research III. Topics of Comparative Law 1. Prologue 2. Modifications of Traditional Scope 3. Extending Scope 4. Interdisciplinary Research IV. Conclusion Bibliography Chapter 32: Sources Of Law and Legal Method in Comparative Law I. Introduction II. The Significance of Sources of Law and Legal Method for the Discipline of Comparative Law 1. Importance for the Practice of Comparative Law 2. Importance for the Theory of Comparative Law 3. Comparative Law as a Source of Law and as a Tool of Legal Method III. Establishing the Sources of Law and the Legal Method of Another System 1. Sources of Law (a) Terminology (b) Legislation on Sources, Theories of Sources, and Social Reality 2. Legal Method (a) Terminology (b) Legislation on Legal Method, Methodological Theories, and Practice IV. Comparative Studies of Sources of Law and Legal Method 1. General Studies 2. Studies of Specific Legal Sources and the Methodological Approaches Pertaining to Them (a) Legislation (b) Case Law (c) Other Sources of Law V. Where to Go Next? Bibliography PART III: SUBJECT AREAS Chapter 33: Comparative Contract Law I. Introduction 1. Favourite Subject of Comparative Analysis 2. Practical Relevance 3. Civil Law and Common Law II. The Enforceability of Agreements 1. The Intention to Create Legal Relations 2. Consideration 3. Formal Requirements III. Ascertaining the Content of a Contract 1. Interpretation 2. Supplementation IV. Illegal, Immoral, and Unfair Contracts 1. Illegal or Immoral Contracts 2. Unfairness V. Mistake VI. Claims for Performance VII. Termination of Contracts VIII. Damages Bibliography Chapter 34: Comparative Sales Law I. Introduction II. Comparative Law and the Development of Uniform Sales Law 1. The UN Convention on Contracts for the International Sale of Goods and the Idea of a World-Wide Unification of the Law of International Sales (a) UNIDROIT and the Hague Uniform Law of International Sales (ULIS) (b) UNCITRAL and the Convention of 1980 (c) Scope of the CISG (d) The CISG and Comparative Law 2. Harmonization of the Law of Sales within the European Union (a) The Starting Point: Sector-specific Regulatory Measures (b) The More Ambitious Endeavour—From Sector-specific Measures to a European Contract Law—and Back (c) The Principles of European Contract Law and the Comparative Work of European Research Groups (d) Comparative Law in the European Harmonization Process 3. Harmonization of the Law of Sales in Africa 4. The Special Case of Scandinavia 5. The Wider Context: The UNIDROIT Principles of International Commercial Contracts 6. The Overall Picture: Uniform Law and National Law III. Characteristic Comparative Features of Sales Law—As Evidenced by the Buyer’s Remedies for Non-Conformity of the Goods 1. The Way from Caveat Emptor to an Objective System of Seller’s Liability (a) The Roman Model: The ‘Two-Tier Approach’ (b) The English Model: A Unitary Approach 2. The Role of Termination as a Remedy (a) Termination as a Readily Available Remedy (b) The Modern Trend to Restrain the Scope of Termination (c) The Instruments for Restraining Termination as a Remedy IV. Conclusion Bibliography Chapter 35: Unjustified Enrichment in Comparative Perspective I. Introduction: Dynamic Doctrine II. The Anatomy of Difference III. Finding the Core: What is Enrichment Liability About? 1. What Work Does Enrichment Liability Do? (a) Is the Reversal of an Unowed Payment about Unjustified Enrichment? (b) Is the Disgorgement of Benefits Improperly Obtained by the Act of the Defendant about Unjustified Enrichment? (c) Is the Winding Up of Failed Contracts about Unjustified Enrichment? (d) Is Obtruding a Benefit on Another about Unjustified Enrichment? (e) Is Subrogation about Unjustified Enrichment? 2. How Enrichment Liability is Given Effect: The Remedies and the Measurement of Enrichment (a) The Remedies: Personal versus Proprietary (b) Measuring Enrichment: Value Received versus Value Remaining IV. Can Taxonomies Survive the Uncertainties of Multi-Party Enrichment? V. Drawing It All Together: Which Taxonomy? VI. Conclusion Bibliography Chapter 36: Comparative Tort Law I. Introduction II. Ends and Methods of Tort Law III. General Clause v Variety of Individual Torts 1. A Fundamental Difference in Style 2. Common Developments (a) Roman Roots (b) The General Clause of the Continent (c) From Trespass to Negligence 3. The Relationship between Criminal Law and Tort (a) Continued Fragmentation of Criminal Law (b) Criminal Law as a Blueprint for the Law of Delict? (c) Conclusion IV. Scope of Protection 1. The Problem Defined 2. Protected Interests v General Clause 3. Pure Economic Loss (a) Restrictions on the Liability for Pure Economic Loss Employed by French Law (b) Expansions of Liability for Pure Economic Loss in German and Anglo-American Law (c) Conclusion 4. Dignitary Injuries V. Liability for Fault 1. Liability for Moral Wrongdoing or Attribution of Risks? 2. Theory: The Dominance of the Objective Standard of Care 3.