The Functional Method of Comparative Law: Quo Vadis?

Coninck, Julie De

doi:10.1628/003372510791090238

“…A second line of criticism against functionalism is more recent and more fruitful, coming from inter-disciplinary scholarship. 91 Here as well, functionalism is faulted for a shortcoming, for a failure by its proponents to embrace the full implications of their method. This time, the shortcoming lies not in the scope of inquiry, but in the formulation of the starting point.…”

Section: The Lack Of Inter-disciplinaritymentioning

confidence: 99%

Legal Emulation Between Regulatory Competition and Comparative Law

Larouche

¹

2012

National Legal Systems and Globalization

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Legal emulation between regulatory competition and comparative lawLarouche, P. Document version:Publisher's PDF, also known as Version of record Publication date: 2012 Link to publicationCitation for published version (APA): Larouche, P. (2012). Legal emulation between regulatory competition and comparative law. (TILEC Discussion Paper; Vol. 2012-017). TILEC. General rightsCopyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights.-Users may download and print one copy of any publication from the public portal for the purpose of private study or research -You may not further distribute the material or use it for any profit-making activity or commercial gain -You may freely distribute the URL identifying the publication in the public portal Take down policy If you believe that this document breaches copyright, please contact us providing details, and we will remove access to the work immediately and investigate your claim. AbstractThis paper puts forward an alternative path, next to regulatory competition models and comparative law endeavours, called legal emulation.Regulatory competition suffers from its very restrictive assumptions, which make it a relatively rare occurrence in practice. It is also exogenously driven, ignoring legal change brought about from within the law, and it takes an impoverished view of law. As for comparative law, it has tended to remain mostly mono-disciplinary. It usually lacks a dynamic dimension.Legal emulation tries to combine the more dynamic perspective of regulatory competition, with the endogeneity of comparative law. It rests on a theoretical perspective whereby the law is conceived as the outcome of a series of choices -substantive or institutional, fundamental or transient -made between different options (legal science would then be the investigation of the set of those choices). The paper provides an outline of the legal emulation model. Legal emulation ties together and explains a number of existing phenomena in many legal orders, such as constitutional, EU or human rights review; impact assessment; peer review within networks of authories; or the open method of coordination. Finally, the paper outlines some consequences of adopting a legal emulation model.

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“…91 Here as well, functionalism is faulted for a shortcoming, for a failure by its proponents to embrace the full implications of their method. This time, the shortcoming lies not in the scope of inquiry, but in the formulation of the starting point.…”

Section: The Lack Of Inter-disciplinaritymentioning

confidence: 99%

Legal Emulation between Regulatory Competition and Comparative Law

Larouche

¹

2012

SSRN Journal

1

0

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Legal emulation between regulatory competition and comparative lawLarouche, P. Document version:Publisher's PDF, also known as Version of record Publication date: 2012 Link to publicationCitation for published version (APA): Larouche, P. (2012). Legal emulation between regulatory competition and comparative law. (TILEC Discussion Paper; Vol. 2012-017). TILEC. General rightsCopyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights.-Users may download and print one copy of any publication from the public portal for the purpose of private study or research -You may not further distribute the material or use it for any profit-making activity or commercial gain -You may freely distribute the URL identifying the publication in the public portal Take down policy If you believe that this document breaches copyright, please contact us providing details, and we will remove access to the work immediately and investigate your claim. AbstractThis paper puts forward an alternative path, next to regulatory competition models and comparative law endeavours, called legal emulation.Regulatory competition suffers from its very restrictive assumptions, which make it a relatively rare occurrence in practice. It is also exogenously driven, ignoring legal change brought about from within the law, and it takes an impoverished view of law. As for comparative law, it has tended to remain mostly mono-disciplinary. It usually lacks a dynamic dimension.Legal emulation tries to combine the more dynamic perspective of regulatory competition, with the endogeneity of comparative law. It rests on a theoretical perspective whereby the law is conceived as the outcome of a series of choices -substantive or institutional, fundamental or transient -made between different options (legal science would then be the investigation of the set of those choices). The paper provides an outline of the legal emulation model. Legal emulation ties together and explains a number of existing phenomena in many legal orders, such as constitutional, EU or human rights review; impact assessment; peer review within networks of authories; or the open method of coordination. Finally, the paper outlines some consequences of adopting a legal emulation model.

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Reflections on the Pactum in the Public and Private Spheres

Siliquini-Cinelli

¹

2017

The Constitutional Dimension of Contract Law

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This chapter delves into the nature of the pactum as both substantial and functional bond as well as mythical canon of any contractual-constituting initiative in the public and private spheres. The aim is to show that the movement toward the conceptualisation of good faith as an organising principle and implied term in the Common law tradition is due to the need to counterbalance our inhuman condition as made it manifest by the humanitarian façade of the modern constitutional project. This claim is supported by an unconventional method of investigation that will promote the comparison between the role of political action at the public level and the increasing utilisation of the doctrine of good faith in Contract law theory and practice.

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The Functional Method of Comparative Law: Quo Vadis?

Cited by 11 publications

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Legal Emulation Between Regulatory Competition and Comparative Law

Legal Emulation Between Regulatory Competition and Comparative Law

Legal Emulation between Regulatory Competition and Comparative Law

Reflections on the Pactum in the Public and Private Spheres

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