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Юридическая компаративистика. Общая характеристика

100%
Krauze-Lisowiec I.
Prawo
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2015
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issue 317
107 - 113
EN
Comparative law (lat. Comparativus — comparative) is a summary of relatively homogeneous characteristics of at least two subjects in order to disclose identicality, similarities and differences between them. Among comparative scholars both in Russia and in Poland, there is no unambiguous and common position whether comparative law is only a method of research and learning about the law, or a separate branch of legal science. As the dominant view in both countries one should consider theories granting comparative law a status of legal science. An important aspect of comparative law is that its purpose is not confined exclusively to describing the common or differing characteristics found in research subjects compared, but goes much further — its content is the assessment, evaluation of the identity of similarities and differences between compared research subjects, in order to make it possible to make a choice. The subject of comparative law is very wide. It can include a variety of legal solutions, judgments, positions, doctrine, etc. The subject of comparative law may be referred to within historical or contemporary limits, in its territorial scope it may be limited to the territory of States the rights of which are compared, or may be dealt with in a broader sense. However, the subject of comparative law, in its full sense, arises only in determining the essence of the connection between the compared elements, which on the one hand connects them, on the other, justifies the meaning and direction of comparison. According to many scholars, concluded research has a significant meaning in the context of comparative law only if it is of an international character. An important aspect of comparative research and comparative studies of different legal systems is also a feature of objectivity, which is manifested by the fact that the studies do not indicate directly the ideology of any particular country and not strive to prove at any cost the superiority of one of the legal systems compared. In terms of the presented concept of the perception of comparative law one can distinguish the following fundamental functions: cognitive, educational, legislative, interpretative, integrative and ideological. Comparative law plays a great role in the development of legal systems of the countries, including Poland and Russia, in the improvement of the rule of law and legislation, operation of law in society, as well as helps in the process of approximation of the laws of different states, and accompanies the development of international relations and cooperation of researchers, the exchange of knowledge, ideas, theories, and the multidimensional nature of comparative legal research allows for analyzing and resolution of every legal problem.
2
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Legal interpretation from the perspective of French jurisprudence: from positivist exegesis to free scientific research

100%
Sokalska E., Augustyniak M.
Review of European and Comparative Law
|
2022
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vol. 48
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issue 1
175-189
EN
The “natural law” movement provoked some discussions on the method of interpretation of law within the European legal thought. Diverse methodological approaches referring to some social, historical, and multidimensional aspects and foundations of law were developed by French and German legal scholarship at the turn of the 19th and 20th centuries. The present article focuses on the main scientific positions on the method of interpretation of law present in French jurisprudence. Since the beginning of the 19th century, French legal studies were dominated by the positivist school of exegesis. Scholarship and legal practitioners sought the opportunity to rebuild their authority. It was accompanied by the attempts to prepare a new theoretical ground for the legal order. Then, some representatives of a new trend in scientific research considered pluralism of the methods applied in legal research. Raymond Saleilles postulated the need for the evolutionary perspective in legal science. This approach appears to be similar to the concept of the law of nature with variable content adopted by Rudolf Stammler in Germany. Since the last two decades of the 19th century, François Gény, the supporter of a greater flexibility in interpretation of a legal text, developed libre recherche scientifique. He questioned the idea of autonomy of the legal science, calling for its integration with other disciplines.
3
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Stare decisis and information abundance in a common law jurisdiction

88%
Roscoe E., Szypszak C.
Review of European and Comparative Law
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2022
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vol. 49
|
issue 2
7-32
EN
In a common law jurisdiction, according to the principle of stare decisis judges are bound to interpret a constitutional or common law principle by applying authoritative cases already decided. Parties in disputes pending before the courts must find and assess the prior cases on which they can expect that judges will rely. Not very long ago, research for such precedent involved reviewing known cases and linking them to other cases using topical digests and citators. Success with this approach required a patient, persistent, thorough, and open-minded methodology. Modern information accessibility gives previously unimaginable quick access to cases, including with tools that promise to predict judicial tendencies. But this technological accessibility can have negative side effects, including a diminished research aptitude and a stilted capacity to synthesize information. It can also lead to an inadequate account of the human factors that often cause judges to depart from predictions based on logical inference from prior cases. This article considers the extent to which the identification of precedent is essential in legal analysis, yet is of limited value in predictability as a result of judges’ unavoidably human perspectives. With examples from landmark cases, the article illustrates that judges sometimes make decisions based on considerations that will not be revealed in a mechanistic application of precedent. The article considers how evolving legal research tools and methods give access to precedent that in some respects makes the process more scientific, but in other respects can obscure the realities of how cases are decided. The article also gives examples of this paradox as demonstrated by today’s students who are learning how to do research, drawn from years of the authors’ teaching experience.
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