Michelle T Grando
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199572649
- eISBN:
- 9780191722103
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572649.003.0002
- Subject:
- Law, Public International Law
This chapter discusses the meaning of basic concepts such as the burden of proof, standard of proof, and presumptions. It explains how those concepts are defined in the common law system, the civil ...
More
This chapter discusses the meaning of basic concepts such as the burden of proof, standard of proof, and presumptions. It explains how those concepts are defined in the common law system, the civil law system, and in international law. It argues that because those concepts do not have exactly the same meaning in all legal systems, WTO panels and the Appellate Body should clearly define those concepts in the context of WTO law, taking into consideration the basic structure of the WTO dispute settlement system.Less
This chapter discusses the meaning of basic concepts such as the burden of proof, standard of proof, and presumptions. It explains how those concepts are defined in the common law system, the civil law system, and in international law. It argues that because those concepts do not have exactly the same meaning in all legal systems, WTO panels and the Appellate Body should clearly define those concepts in the context of WTO law, taking into consideration the basic structure of the WTO dispute settlement system.
Richard Hyland
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195343366
- eISBN:
- 9780199867776
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343366.001.0001
- Subject:
- Law, Comparative Law
This book studies the law governing the giving and revocation of gifts. Gift-giving is everywhere governed by social and customary norms before it encounters the law. Moreover, the giving of gifts ...
More
This book studies the law governing the giving and revocation of gifts. Gift-giving is everywhere governed by social and customary norms before it encounters the law. Moreover, the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides a lens through which to examine how different legal systems confront social practice. The law of gifts is well-developed both in the civil and the common laws. This book studies how the different civil and common law jurisdictions confront common issues. The legal systems discussed include for the common law those of England, the United States, and India, and, in the civil law, the private law systems of Belgium and France, Germany, Italy, and Spain. This book also provides a critique of a principal method of comparative law, which is a form of functionalism based on what is called the praesumptio similitudinis, namely the axiom that once legal doctrine is stripped away, developed legal systems tend to reach similar practical results. As this study makes clear, legal systems actually differ, not only in their approach and conceptual structure, but just as much in the results. More importantly, this study rejects functionalism in favor of an interpretist method derived from cultural anthropology.Less
This book studies the law governing the giving and revocation of gifts. Gift-giving is everywhere governed by social and customary norms before it encounters the law. Moreover, the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides a lens through which to examine how different legal systems confront social practice. The law of gifts is well-developed both in the civil and the common laws. This book studies how the different civil and common law jurisdictions confront common issues. The legal systems discussed include for the common law those of England, the United States, and India, and, in the civil law, the private law systems of Belgium and France, Germany, Italy, and Spain. This book also provides a critique of a principal method of comparative law, which is a form of functionalism based on what is called the praesumptio similitudinis, namely the axiom that once legal doctrine is stripped away, developed legal systems tend to reach similar practical results. As this study makes clear, legal systems actually differ, not only in their approach and conceptual structure, but just as much in the results. More importantly, this study rejects functionalism in favor of an interpretist method derived from cultural anthropology.
Reinhard Zimmermann
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780198299134
- eISBN:
- 9780191708046
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198299134.001.0001
- Subject:
- Law, Comparative Law
Legal history helps us to understand modern or contemporary law. It explains why the law has become what it is. It lays open the premises on which the modern law is based. It constitutes a rich ...
More
Legal history helps us to understand modern or contemporary law. It explains why the law has become what it is. It lays open the premises on which the modern law is based. It constitutes a rich source of experience which is as valuable for the development of modern legal doctrines as for law reform. It may also reveal where a wrong turn has been taken and thus prevent us from repeating an error. Today, however, historical legal scholarship has acquired an added significance in view of the Europeanisation of private law and private law scholarship. It enables us to see the common ground between our modern national legal systems and to understand existing differences. It makes us aware of the fact that the law has not developed in national isolation and can, therefore, not properly be understood under purely national auspices. It constitutes the foundation for scholarship in comparative law and paves the way towards re-establishing a European legal culture. The focus of these Clarendon lectures is on the ‘vital connection that ties the present to the past’ (Savigny) and on the link between legal history, modern legal doctrine, and comparative law. They aim to recreate an awareness of a fundamental intellectual unity based on a common tradition. Such awareness is of central importance to sustain the process of a Europeanisation of private law which we experience today. The three lectures consist of: ‘The End of an Era: Transformation of Scholarship in Roman Law’, ‘The Transition from Civil Law to Civil Code: Dawn of a New Era?’, and ‘A Change in Perspective: European Private Law and its Historical Foundations’.Less
Legal history helps us to understand modern or contemporary law. It explains why the law has become what it is. It lays open the premises on which the modern law is based. It constitutes a rich source of experience which is as valuable for the development of modern legal doctrines as for law reform. It may also reveal where a wrong turn has been taken and thus prevent us from repeating an error. Today, however, historical legal scholarship has acquired an added significance in view of the Europeanisation of private law and private law scholarship. It enables us to see the common ground between our modern national legal systems and to understand existing differences. It makes us aware of the fact that the law has not developed in national isolation and can, therefore, not properly be understood under purely national auspices. It constitutes the foundation for scholarship in comparative law and paves the way towards re-establishing a European legal culture. The focus of these Clarendon lectures is on the ‘vital connection that ties the present to the past’ (Savigny) and on the link between legal history, modern legal doctrine, and comparative law. They aim to recreate an awareness of a fundamental intellectual unity based on a common tradition. Such awareness is of central importance to sustain the process of a Europeanisation of private law which we experience today. The three lectures consist of: ‘The End of an Era: Transformation of Scholarship in Roman Law’, ‘The Transition from Civil Law to Civil Code: Dawn of a New Era?’, and ‘A Change in Perspective: European Private Law and its Historical Foundations’.
Annabel S. Brett
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691141930
- eISBN:
- 9781400838622
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691141930.003.0007
- Subject:
- History, American History: early to 18th Century
This chapter discusses the relationship of the state to its subjects as necessarily physically embodied beings. The primary way in which the commonwealth commands its subjects is through the medium ...
More
This chapter discusses the relationship of the state to its subjects as necessarily physically embodied beings. The primary way in which the commonwealth commands its subjects is through the medium of its law. The law is for the common good and obliges the community as a whole, and thus the ontological status of the law—as distinct from any particular command of a superior to an individual—is intimately tied to that of the body politic. The question, then, concerning the relationship of the state to the natural body of the individual can be framed in terms of the extent of the obligation of the civil law.Less
This chapter discusses the relationship of the state to its subjects as necessarily physically embodied beings. The primary way in which the commonwealth commands its subjects is through the medium of its law. The law is for the common good and obliges the community as a whole, and thus the ontological status of the law—as distinct from any particular command of a superior to an individual—is intimately tied to that of the body politic. The question, then, concerning the relationship of the state to the natural body of the individual can be framed in terms of the extent of the obligation of the civil law.
Jo Bridgeman
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199652501
- eISBN:
- 9780191739217
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199652501.003.0031
- Subject:
- Law, Family Law, Human Rights and Immigration
This chapter explores civil law responsibilities to children. First, it examines the nature, scope, and extent of the civil responsibilities of parents to children, then the professional ...
More
This chapter explores civil law responsibilities to children. First, it examines the nature, scope, and extent of the civil responsibilities of parents to children, then the professional responsibilities of teachers, before turning to responsibilities to ‘other people's children’. The analysis of the cases considers the nature of responsibility to children, expectations of children and of parents, teachers, and other adults caring for children and what they reveal of the nature of relationships between adults and children.Less
This chapter explores civil law responsibilities to children. First, it examines the nature, scope, and extent of the civil responsibilities of parents to children, then the professional responsibilities of teachers, before turning to responsibilities to ‘other people's children’. The analysis of the cases considers the nature of responsibility to children, expectations of children and of parents, teachers, and other adults caring for children and what they reveal of the nature of relationships between adults and children.
Pedro C. Magalhães, Carlo Guarnieri, and Yorgos Kaminis
- Published in print:
- 2006
- Published Online:
- May 2009
- ISBN:
- 9780199202812
- eISBN:
- 9780191708008
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199202812.003.0004
- Subject:
- Political Science, European Union, Democratization
This chapter presents the results of judicial reform in the new Southern Europe in the context of the legacies of the nondemocratic past and the strategies of political actors. The democratic ...
More
This chapter presents the results of judicial reform in the new Southern Europe in the context of the legacies of the nondemocratic past and the strategies of political actors. The democratic transition involved the restitution of judicial independence, limited purges of the judicial personnel, and lack of change in the courts' administration. Internal independence and individual autonomy of judges increased, while judicial hierarchy was eroded. With the exception of Greece, in the rest of Southern Europe judicial review was centralized and entrusted to constitutional courts, which diffused a “culture of constitutionality” to the judiciary. In Portugal and Spain, constitutional courts were insulated from the narrow will of political majorities and thus contributed to democratic consolidation. Judicial activism was present in all four countries, but the judicialization of politics became particularly important in Italy because of an institutionally strong prosecutorial branch and the presence of a politically factionalized judiciary at a time of stagnation and crisis of the party system.Less
This chapter presents the results of judicial reform in the new Southern Europe in the context of the legacies of the nondemocratic past and the strategies of political actors. The democratic transition involved the restitution of judicial independence, limited purges of the judicial personnel, and lack of change in the courts' administration. Internal independence and individual autonomy of judges increased, while judicial hierarchy was eroded. With the exception of Greece, in the rest of Southern Europe judicial review was centralized and entrusted to constitutional courts, which diffused a “culture of constitutionality” to the judiciary. In Portugal and Spain, constitutional courts were insulated from the narrow will of political majorities and thus contributed to democratic consolidation. Judicial activism was present in all four countries, but the judicialization of politics became particularly important in Italy because of an institutionally strong prosecutorial branch and the presence of a politically factionalized judiciary at a time of stagnation and crisis of the party system.
Alvaro Cuervo-Cazurra and Ruth V. Aguilera
- Published in print:
- 2004
- Published Online:
- September 2007
- ISBN:
- 9780199269761
- eISBN:
- 9780191710087
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199269761.003.0015
- Subject:
- Business and Management, Corporate Governance and Accountability
This chapter goes beyond the convergence/divergence dilemma by analysing change in CG practice in terms of the adoption of some codes of good governance rather than as the adoption of one particular ...
More
This chapter goes beyond the convergence/divergence dilemma by analysing change in CG practice in terms of the adoption of some codes of good governance rather than as the adoption of one particular model. It considers the speed of adoption of a code as a process of knowledge transfer across countries, driven by a mixture of effectiveness and legitimization reasons. The empirical study considers fifteen common-law countries and twenty civil-law countries, and finds that the development of a first code of CG was faster in countries with greater exposure to foreign investment (but not to foreign trade) and with a common law system.Less
This chapter goes beyond the convergence/divergence dilemma by analysing change in CG practice in terms of the adoption of some codes of good governance rather than as the adoption of one particular model. It considers the speed of adoption of a code as a process of knowledge transfer across countries, driven by a mixture of effectiveness and legitimization reasons. The empirical study considers fifteen common-law countries and twenty civil-law countries, and finds that the development of a first code of CG was faster in countries with greater exposure to foreign investment (but not to foreign trade) and with a common law system.
John Van Seters
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780195153156
- eISBN:
- 9780199834785
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195153154.003.0004
- Subject:
- Religion, Biblical Studies
This chapter deals with civil laws of the casuistic type most common in Near Eastern codes and one of these, having to do with the Hebrew slave (Exod 21:2–11), occurs also in both Deuteronomy and the ...
More
This chapter deals with civil laws of the casuistic type most common in Near Eastern codes and one of these, having to do with the Hebrew slave (Exod 21:2–11), occurs also in both Deuteronomy and the Holiness Code and is therefore key to the relative dating of these laws. Some of the casuistic laws are closely paralleled in the Hammurabi Code, such as injury to a pregnant woman or the law of the goring ox, but others are supplemented by material from Deuteronomy or extensions of a Deuteronomic law, as in the law regarding the violation of the unmarried virgin. Still other laws of the apodictic type (participial prohibitions) are more Hebraic in form and must be viewed within the context of similar laws in the Holiness Code and Ezekiel. The use of lex talionis within the Covenant Code shows evidence of borrowing from both the Hebrew and Babylonian laws, thus suggesting that throughout the civil laws, there is a constant interweaving of the Babylonian and Hebrew legal traditions.Less
This chapter deals with civil laws of the casuistic type most common in Near Eastern codes and one of these, having to do with the Hebrew slave (Exod 21:2–11), occurs also in both Deuteronomy and the Holiness Code and is therefore key to the relative dating of these laws. Some of the casuistic laws are closely paralleled in the Hammurabi Code, such as injury to a pregnant woman or the law of the goring ox, but others are supplemented by material from Deuteronomy or extensions of a Deuteronomic law, as in the law regarding the violation of the unmarried virgin. Still other laws of the apodictic type (participial prohibitions) are more Hebraic in form and must be viewed within the context of similar laws in the Holiness Code and Ezekiel. The use of lex talionis within the Covenant Code shows evidence of borrowing from both the Hebrew and Babylonian laws, thus suggesting that throughout the civil laws, there is a constant interweaving of the Babylonian and Hebrew legal traditions.
William G. Wagner
- Published in print:
- 1994
- Published Online:
- October 2011
- ISBN:
- 9780198204473
- eISBN:
- 9780191676291
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198204473.001.0001
- Subject:
- History, European Modern History
This book provides a systematic study of civil law in late Imperial Russia. It shows that efforts to adjust family, property, and inheritance law to changing social and economic conditions often ...
More
This book provides a systematic study of civil law in late Imperial Russia. It shows that efforts to adjust family, property, and inheritance law to changing social and economic conditions often became intertwined with attempts to shape society in accordance with competing ideological ideals. Through a restructuring of the family's legal basis, members of the growing educated and professional strata of society in particular endeavoured to promote conflicting conceptions of authority, individuality, gender, and law. Legal reform also served for members of the emerging legal and medical professions as a way to establish their authority, often at the expense of the state administration and the Orthodox Church. Civil law in late Imperial Russia therefore constituted both an important medium for ideological redefinition and a field of battle for those seeking to reform, to overthrow, or to defend the ancient regime. Because this battle extended into the state bureaucracy, legislative change proved extremely difficult. Newly empowered by the 1864 judicial reform, the judiciary responded to legislative inaction by not merely adapting the law, but also by promoting an ideal of the family whose values and principles challenged those underlying the autocracy.Less
This book provides a systematic study of civil law in late Imperial Russia. It shows that efforts to adjust family, property, and inheritance law to changing social and economic conditions often became intertwined with attempts to shape society in accordance with competing ideological ideals. Through a restructuring of the family's legal basis, members of the growing educated and professional strata of society in particular endeavoured to promote conflicting conceptions of authority, individuality, gender, and law. Legal reform also served for members of the emerging legal and medical professions as a way to establish their authority, often at the expense of the state administration and the Orthodox Church. Civil law in late Imperial Russia therefore constituted both an important medium for ideological redefinition and a field of battle for those seeking to reform, to overthrow, or to defend the ancient regime. Because this battle extended into the state bureaucracy, legislative change proved extremely difficult. Newly empowered by the 1864 judicial reform, the judiciary responded to legislative inaction by not merely adapting the law, but also by promoting an ideal of the family whose values and principles challenged those underlying the autocracy.
Joseph Chinyong Liow
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195377088
- eISBN:
- 9780199869527
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195377088.003.0003
- Subject:
- Religion, Islam
This chapter investigates at closer analytical quarters the phenomenon of Islamization in Malaysia and the creation of institutions of Islamic governance by the UMNO-led Malaysian government in a ...
More
This chapter investigates at closer analytical quarters the phenomenon of Islamization in Malaysia and the creation of institutions of Islamic governance by the UMNO-led Malaysian government in a process that can aptly be described as the “bureaucratization” of Islam. This process is important, for it effectively put in place the levers of Islamist governance in Malaysia, eventually facilitating the “Islamic state” proclamations by some of UMNO’s senior leaders. The chapter also identifies and discusses in greater detail two prevailing contradictions that arose out of this move to bureaucratize Islam, the first between federal and state administrations, and the second between civil and religious law.Less
This chapter investigates at closer analytical quarters the phenomenon of Islamization in Malaysia and the creation of institutions of Islamic governance by the UMNO-led Malaysian government in a process that can aptly be described as the “bureaucratization” of Islam. This process is important, for it effectively put in place the levers of Islamist governance in Malaysia, eventually facilitating the “Islamic state” proclamations by some of UMNO’s senior leaders. The chapter also identifies and discusses in greater detail two prevailing contradictions that arose out of this move to bureaucratize Islam, the first between federal and state administrations, and the second between civil and religious law.
Timothy Fitzgerald
- Published in print:
- 2008
- Published Online:
- January 2008
- ISBN:
- 9780195300093
- eISBN:
- 9780199868636
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195300093.003.0006
- Subject:
- Religion, Religion and Literature
This chapter continues the close analysis of discourses on “religion” and related categories such as “politic order” and the “commonweal” and shows how in significant texts of the period there was ...
More
This chapter continues the close analysis of discourses on “religion” and related categories such as “politic order” and the “commonweal” and shows how in significant texts of the period there was nothing like a modern concept of the nonreligious secular, or some conceptual or social space from which an attitude of neutrality could be taken toward some putatively separate domain called “religion.” The commonweal or politic body, based on a holistic analogy with the well‐functioning human body, is embedded in a God‐given hierarchical cosmos that legitimated rank and degree long after the Reformation. The editor of these texts, C. H. Williams, is aware of the problem of using modern concepts such as “class” to represent the realities of the early modern period. Yet editorial needs of the twentieth century in effect compel him to classify these texts according to modern categories, thus creating a contradiction between what the texts imply and what we need them to mean.Less
This chapter continues the close analysis of discourses on “religion” and related categories such as “politic order” and the “commonweal” and shows how in significant texts of the period there was nothing like a modern concept of the nonreligious secular, or some conceptual or social space from which an attitude of neutrality could be taken toward some putatively separate domain called “religion.” The commonweal or politic body, based on a holistic analogy with the well‐functioning human body, is embedded in a God‐given hierarchical cosmos that legitimated rank and degree long after the Reformation. The editor of these texts, C. H. Williams, is aware of the problem of using modern concepts such as “class” to represent the realities of the early modern period. Yet editorial needs of the twentieth century in effect compel him to classify these texts according to modern categories, thus creating a contradiction between what the texts imply and what we need them to mean.
Stephen Macedo
- Published in print:
- 2015
- Published Online:
- October 2017
- ISBN:
- 9780691166483
- eISBN:
- 9781400865857
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691166483.003.0001
- Subject:
- Law, Family Law
This book offers arguments in defense of same-sex marriage, marriage (as a distinctive relationship defined by law), and monogamy. It considers the acrimonious debate over same-sex marriage and two ...
More
This book offers arguments in defense of same-sex marriage, marriage (as a distinctive relationship defined by law), and monogamy. It considers the acrimonious debate over same-sex marriage and two sets of issues that arise from this debate and that are closely intertwined with marriage: sexual ethics and children's wellbeing. It also examines the ramifications of same-sex marriage for the meaning and future of marriage and asks whether the recognition of same-sex marriage will end marriage as we have known it, or whether civil marriage and monogamy are still justifiable and viable. Finally, the book explores the wider and deeper questions raised by the debate over marriage concerning liberalism as public philosophy. Parts 1 and 2 of the book make the cases for same-sex wedlock and marriage as a special status in civil law, whereas Part 3 focuses on the intersection of polygamy, monogamy, and democracy. The introduction provides an overview of the chapters that follow.Less
This book offers arguments in defense of same-sex marriage, marriage (as a distinctive relationship defined by law), and monogamy. It considers the acrimonious debate over same-sex marriage and two sets of issues that arise from this debate and that are closely intertwined with marriage: sexual ethics and children's wellbeing. It also examines the ramifications of same-sex marriage for the meaning and future of marriage and asks whether the recognition of same-sex marriage will end marriage as we have known it, or whether civil marriage and monogamy are still justifiable and viable. Finally, the book explores the wider and deeper questions raised by the debate over marriage concerning liberalism as public philosophy. Parts 1 and 2 of the book make the cases for same-sex wedlock and marriage as a special status in civil law, whereas Part 3 focuses on the intersection of polygamy, monogamy, and democracy. The introduction provides an overview of the chapters that follow.
J. L. Barton
- Published in print:
- 1992
- Published Online:
- October 2011
- ISBN:
- 9780199510122
- eISBN:
- 9780191700941
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199510122.003.0007
- Subject:
- History, British and Irish Medieval History
This chapter begins by discussing the disputes that occurred between legists and artists, and the university's stand regarding these issues. It also talks about how certain civilians took proceedings ...
More
This chapter begins by discussing the disputes that occurred between legists and artists, and the university's stand regarding these issues. It also talks about how certain civilians took proceedings against the proctors to challenge the validity of a resolution of congregation, made, it was alleged, at the instance of members of their own faculty, that if there were no doctor of civil law in the university the proctors might appoint a master of arts to present candidates for degrees in civil law. Next, it discusses the relationship between the commoners and the government, as well as the requirements that each student must accomplish in the Oxford legal faculties.Less
This chapter begins by discussing the disputes that occurred between legists and artists, and the university's stand regarding these issues. It also talks about how certain civilians took proceedings against the proctors to challenge the validity of a resolution of congregation, made, it was alleged, at the instance of members of their own faculty, that if there were no doctor of civil law in the university the proctors might appoint a master of arts to present candidates for degrees in civil law. Next, it discusses the relationship between the commoners and the government, as well as the requirements that each student must accomplish in the Oxford legal faculties.
Jan Dalhuisen
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199566181
- eISBN:
- 9780191705458
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199566181.003.0039
- Subject:
- Law, Legal History
This chapter deals with what the choice of English law as the applicable law may mean in a contract drawn up in the civil law tradition between parties from civil law countries. It discusses the ...
More
This chapter deals with what the choice of English law as the applicable law may mean in a contract drawn up in the civil law tradition between parties from civil law countries. It discusses the differenced on issues like good faith and public policy. The chapter further raises the questions whether the operation of a domestic law in an international contract, chosen by the parties or not, is the same as the operation of the same law in a domestic contract, and of the position of lex mercatoria.Less
This chapter deals with what the choice of English law as the applicable law may mean in a contract drawn up in the civil law tradition between parties from civil law countries. It discusses the differenced on issues like good faith and public policy. The chapter further raises the questions whether the operation of a domestic law in an international contract, chosen by the parties or not, is the same as the operation of the same law in a domestic contract, and of the position of lex mercatoria.
Christian Von Bar
- Published in print:
- 1998
- Published Online:
- March 2012
- ISBN:
- 9780198260561
- eISBN:
- 9780191682117
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198260561.003.0002
- Subject:
- Law, EU Law
Every European nation with a codified civil law has devoted a complete section of it to the law of delict. Of these states, those currently belonging to the EU are: Belgium, Germany, France, Italy, ...
More
Every European nation with a codified civil law has devoted a complete section of it to the law of delict. Of these states, those currently belonging to the EU are: Belgium, Germany, France, Italy, Luxembourg, The Netherlands, Austria , Portugal, and Spain. This chapter examines the subjects regulated by these provisions as well as the methods employed. It differentiates between the law of liability for personal misconduct and the law of liability for third parties and things. Topics covered include subjects and methods of regulation within the law of liability for personal misconduct; vicarious liability and liability for damage caused by things; the law of liability for third parties under special provisions of the codifications; and the law of liability for dangers arising from animals and buildings and land.Less
Every European nation with a codified civil law has devoted a complete section of it to the law of delict. Of these states, those currently belonging to the EU are: Belgium, Germany, France, Italy, Luxembourg, The Netherlands, Austria , Portugal, and Spain. This chapter examines the subjects regulated by these provisions as well as the methods employed. It differentiates between the law of liability for personal misconduct and the law of liability for third parties and things. Topics covered include subjects and methods of regulation within the law of liability for personal misconduct; vicarious liability and liability for damage caused by things; the law of liability for third parties under special provisions of the codifications; and the law of liability for dangers arising from animals and buildings and land.
Michael A. Livingston, Pier Giuseppe Monateri, and Francesco Parisi
Mauro Capelletti, John Henry Meryman, and Joseph M. Perillo (eds)
- Published in print:
- 2015
- Published Online:
- May 2016
- ISBN:
- 9780804774956
- eISBN:
- 9780804796552
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804774956.003.0005
- Subject:
- Law, Comparative Law
This chapter traces the development of a distinct Italian “style,” which is characterized by an inclination toward legal positivism; a reluctance to consider nonlegal disciplines, notably philosophy, ...
More
This chapter traces the development of a distinct Italian “style,” which is characterized by an inclination toward legal positivism; a reluctance to consider nonlegal disciplines, notably philosophy, economics, and the remaining social sciences, in legal scholarship; and a tendency, extreme even by civil law standards, to elevate doctrine over case law. These tendencies result, in turn, from a combination of French and German influences and specifically Italian traits, including the long period in which Italy lacked a central governmental authority and relied on scholars (“doctors”) of law to maintain continuity.Less
This chapter traces the development of a distinct Italian “style,” which is characterized by an inclination toward legal positivism; a reluctance to consider nonlegal disciplines, notably philosophy, economics, and the remaining social sciences, in legal scholarship; and a tendency, extreme even by civil law standards, to elevate doctrine over case law. These tendencies result, in turn, from a combination of French and German influences and specifically Italian traits, including the long period in which Italy lacked a central governmental authority and relied on scholars (“doctors”) of law to maintain continuity.
Daniel Berkowitz and Karen B. Clay
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691136042
- eISBN:
- 9781400840540
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691136042.001.0001
- Subject:
- Economics and Finance, Economic History
Although political and legal institutions are essential to any nation's economic development, the forces that have shaped these institutions are poorly understood. Drawing on rich evidence about the ...
More
Although political and legal institutions are essential to any nation's economic development, the forces that have shaped these institutions are poorly understood. Drawing on rich evidence about the development of the American states from the mid-nineteenth to the late twentieth century, this book documents the mechanisms through which geographical and historical conditions—such as climate, access to water transportation, and early legal systems—impacted political and judicial institutions and economic growth. The book shows how a state's geography and climate influenced whether elites based their wealth in agriculture or trade. States with more occupationally diverse elites in 1860 had greater levels of political competition in their legislature from 1866 to 2000. The book also examines the effects of early legal systems. Because of their colonial history, thirteen states had an operational civil-law legal system prior to statehood. All of these states except Louisiana would later adopt common law. By the late eighteenth century, the two legal systems differed in their balances of power. In civil-law systems, judiciaries were subordinate to legislatures, whereas in common-law systems, the two were more equal. Former civil-law states and common-law states exhibit persistent differences in the structure of their courts, the retention of judges, and judicial budgets. Moreover, changes in court structures, retention procedures, and budgets occur under very different conditions in civil-law and common-law states. This book illustrates how initial geographical and historical conditions can determine the evolution of political and legal institutions and long-run growth.Less
Although political and legal institutions are essential to any nation's economic development, the forces that have shaped these institutions are poorly understood. Drawing on rich evidence about the development of the American states from the mid-nineteenth to the late twentieth century, this book documents the mechanisms through which geographical and historical conditions—such as climate, access to water transportation, and early legal systems—impacted political and judicial institutions and economic growth. The book shows how a state's geography and climate influenced whether elites based their wealth in agriculture or trade. States with more occupationally diverse elites in 1860 had greater levels of political competition in their legislature from 1866 to 2000. The book also examines the effects of early legal systems. Because of their colonial history, thirteen states had an operational civil-law legal system prior to statehood. All of these states except Louisiana would later adopt common law. By the late eighteenth century, the two legal systems differed in their balances of power. In civil-law systems, judiciaries were subordinate to legislatures, whereas in common-law systems, the two were more equal. Former civil-law states and common-law states exhibit persistent differences in the structure of their courts, the retention of judges, and judicial budgets. Moreover, changes in court structures, retention procedures, and budgets occur under very different conditions in civil-law and common-law states. This book illustrates how initial geographical and historical conditions can determine the evolution of political and legal institutions and long-run growth.
REINHARD ZIMMERMANN
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780198299134
- eISBN:
- 9780191708046
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198299134.003.0004
- Subject:
- Law, Comparative Law
This lecture presents a number of examples that highlight the intellectual link between legal history and comparative law. In addition, nearly all these examples emphasise connections existing ...
More
This lecture presents a number of examples that highlight the intellectual link between legal history and comparative law. In addition, nearly all these examples emphasise connections existing between civil law and common law. They are intended to demonstrate that there is no wall of incomprehension, except in the minds of lawyers still imbued by ‘the nationalist historiography that originated in the 19th century’. The lecture also discusses historical scholarship and the new ius commune, legal history as a means of understanding the present state of modern private law, the development of legal ideas by way of generalisation, lessons from mixed legal systems, European legal systems as mixed legal systems, the trust (a common law peculiarity?), good faith (a civilian peculiarity?) and legal methodology (judicial precedents, statute interpretation).Less
This lecture presents a number of examples that highlight the intellectual link between legal history and comparative law. In addition, nearly all these examples emphasise connections existing between civil law and common law. They are intended to demonstrate that there is no wall of incomprehension, except in the minds of lawyers still imbued by ‘the nationalist historiography that originated in the 19th century’. The lecture also discusses historical scholarship and the new ius commune, legal history as a means of understanding the present state of modern private law, the development of legal ideas by way of generalisation, lessons from mixed legal systems, European legal systems as mixed legal systems, the trust (a common law peculiarity?), good faith (a civilian peculiarity?) and legal methodology (judicial precedents, statute interpretation).
Christopher Hood, Henry Rothstein, and Robert Baldwin
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199243631
- eISBN:
- 9780191599507
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199243638.003.0005
- Subject:
- Political Science, Comparative Politics
Explores how far variety amongst risk regulation regimes can be explained by ‘market failure’ explanations of risk regulation. A ‘market failure’ approach assumes that state activity will consist of ...
More
Explores how far variety amongst risk regulation regimes can be explained by ‘market failure’ explanations of risk regulation. A ‘market failure’ approach assumes that state activity will consist of the minimal level of intervention needed to correct for specific failures in market or tort‐law processes created by risks—i.e. where the costs of individuals informing themselves about risks or opting out of risks through market or civil law methods are very high. This chapter analyses the market failure characteristics of the nine case‐study risks and then compares theoretical expectations with what is observed in practice. Analysis suggests that ‘market failure’ explanations can go some way in explaining observed regime variety, and certainly take us beyond superficial ideas of the ‘nanny state’ or its converse, but cannot predict a substantial proportion of observed features and paradoxes.Less
Explores how far variety amongst risk regulation regimes can be explained by ‘market failure’ explanations of risk regulation. A ‘market failure’ approach assumes that state activity will consist of the minimal level of intervention needed to correct for specific failures in market or tort‐law processes created by risks—i.e. where the costs of individuals informing themselves about risks or opting out of risks through market or civil law methods are very high. This chapter analyses the market failure characteristics of the nine case‐study risks and then compares theoretical expectations with what is observed in practice. Analysis suggests that ‘market failure’ explanations can go some way in explaining observed regime variety, and certainly take us beyond superficial ideas of the ‘nanny state’ or its converse, but cannot predict a substantial proportion of observed features and paradoxes.
John D. Skrentny
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159966
- eISBN:
- 9781400848492
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159966.001.0001
- Subject:
- Sociology, Race and Ethnicity
What role should racial difference play in the American workplace? As a nation, we rely on civil rights law to address this question, and the monumental Civil Rights Act of 1964 seemingly answered ...
More
What role should racial difference play in the American workplace? As a nation, we rely on civil rights law to address this question, and the monumental Civil Rights Act of 1964 seemingly answered it: race must not be a factor in workplace decisions. This book contends that after decades of mass immigration, many employers, Democratic and Republican political leaders, and advocates have adopted a new strategy to manage race and work. Race is now relevant not only in negative cases of discrimination, but in more positive ways as well. In today's workplace, employers routinely practice “racial realism,” where they view race as real—as a job qualification. Many believe employee racial differences, and sometimes immigrant status, correspond to unique abilities or evoke desirable reactions from clients or citizens. They also see racial diversity as a way to increase workplace dynamism. The problem is that when employers see race as useful for organizational effectiveness, they are often in violation of civil rights law. This book examines this emerging strategy in a wide range of employment situations, including the low-skilled sector, professional and white-collar jobs, and entertainment and media. The book urges us to acknowledge the racial realism already occurring, and lays out a series of reforms that, if enacted, would bring the law and lived experience more in line, yet still remain respectful of the need to protect the civil rights of all workers.Less
What role should racial difference play in the American workplace? As a nation, we rely on civil rights law to address this question, and the monumental Civil Rights Act of 1964 seemingly answered it: race must not be a factor in workplace decisions. This book contends that after decades of mass immigration, many employers, Democratic and Republican political leaders, and advocates have adopted a new strategy to manage race and work. Race is now relevant not only in negative cases of discrimination, but in more positive ways as well. In today's workplace, employers routinely practice “racial realism,” where they view race as real—as a job qualification. Many believe employee racial differences, and sometimes immigrant status, correspond to unique abilities or evoke desirable reactions from clients or citizens. They also see racial diversity as a way to increase workplace dynamism. The problem is that when employers see race as useful for organizational effectiveness, they are often in violation of civil rights law. This book examines this emerging strategy in a wide range of employment situations, including the low-skilled sector, professional and white-collar jobs, and entertainment and media. The book urges us to acknowledge the racial realism already occurring, and lays out a series of reforms that, if enacted, would bring the law and lived experience more in line, yet still remain respectful of the need to protect the civil rights of all workers.
