Week 1
KC 1.2- Functionalism
Functionalism= method we use to study and compare legal systems in terms of how they
resolve practical problems that legal systems are expected to resolve
Operates on the presumption of similarities of legal systems, emphasis on functional
similarities of socio-economic problems across societies (contracts, property, etc.)
With comparing, we start with functional (factual, not legal) question about a socio-
economic problem (describing with minimum reference to legal terminology)
Benefit of using this method allows us to understand how legal systems resolve
the same socio-economic problems in potentially very different ways.
When using this method to approach foreign legal systems, we need to use an
internal perspective (not external) “how would someone who is trained in law in
that country resolve this problem?”
*Examples of functional questions:
- Is someone who emits noxious gases from their property responsible for harm caused to
their neighbors by exposure to the gas?
- Is a dog owner responsible for harm to wildlife caused by their unleashed dog?
KC 1.3- Universalism
History of universalism
The Stoics on natural law:
Nature is governed by reason,
Natural law arises out of human reasoning
Natural law corresponds to moral duties
Universal character of Nature & Reason (only one nature and understanding reason)
Structure of natural law:
Higher-order principles that are governing over lower-order rules
*Aristotle notices that we use reason in 2 different ways:
1. Synesis, using good judgment in framing rules rules reflect natural law
2. Gnome, good judgment in deciding cases judgment reflects natural law
The dark side of universal reasoning
Universalism is often pointed to exclude categories of humans to belonging to the order
provided by nature/ belonging to the group of individuals who engage in reasoning and thus
,have access to natural law and protection under it. In the following case they were trying to
determine whether native American tribes have the legal power to sell property that they
own as a community. Judge concluded that native American communities don’t own lands
and cannot financially profit from the sale of land that they inhabit. They are only
possessing/inhabiting it and not owning it. When Europeans come to America doctrine of
discovery (if the land wasn’t inhabited, they could claim legal ownership over it).
KC 1.4- An example of a legal comparison
Unjust enrichment= series of potential disputes that fall in between contracts and torts,
contract is missing or there is something problematic with it. Also, the harm is not covered
by tort law or the application of tort law to the harm would be insufficient.
2 scenarios:
Confused cow scenario: person A unintentionally allows their herd of livestock to
graze on their neighbors (person B, plaintiff) meadow
Failed farmer scenario: a service provider (person C) provides and applies fertilizer to
farmland on contract by the person renting the farmland (person D) from a
landowner (person E). When contract between D and E ends because person D is
bankrupt, person C is left with empty pockets (because landowner and bank loans
have to be paid back first)
Resolving in different countries:
Germany: Scenario 2, civil code section 812 (claim for restitution) from 19 th century
deals with unjust enrichment. It says that “a person who, without legal justification,
obtains anything from a person at his expense, whether by transfer or otherwise, is
bound to give it up to him…”. Whether the unjust enrichment happens through a
transfer process is important (here the transfer of the land use rights go from tenant
back to the landowner with the fertilizer within the land). In Germany, this principle
of unjust enrichment by transfer is limited by the directness of transfer principles,
this means the transfer cannot go through a third party (the former tenant). If there
isn’t a connection that ties the plaintiff’s loss together with the benefit to the
defendant, then you can’t apply the principle of unjust enrichment. So, the service
provider would remain limited in their claim just against the tenant, because he
wouldn’t have grounds to claim restitution from the landowner. Exception: if the
, benefit applied to a moveable thing and the plaintiff still possesses that thing, they
can withhold until the owner and the defendant pay (for example a tractor).
Scenario 1, if there was fault attached to it tort law, but there is no fault. Even
though person A is innocent, they are still liable to restore to the owner the value of
the use that they made of that land. Person B has an avenue to claim compensation
for the right of the value of the use of the land by person A without permission.
France: no distinction that we see from the German principle, they do not care about
the transfer or directness. However, the key consideration in the French context is
whether there was a legitimate cause for the enrichment. Scenario 1, no legitimate
cause for enrichment, so its unjust. Scenario 2, there is no agreement about the
fertilizer and no legitimate cause for the owner to be gaining the benefit of the
fertilizer. Therefore, person E becomes liable to person C for their unjust enrichment.
Common law: three principles of unjust enrichment were developed in case law of
the common law courts, as well as the principles of the courts of equity in the UK:
1. There is a benefit received by the defendant
2. That benefit comes at the expense of the plaintiff
3. That it would be unjust for the defendant to retain that benefit
*There is an implied sense of that same directness principle from Germany and the
distinction between by transfer or otherwise in the German system is also relevant in
the common law system
Scenario 1, any sort of fault tort law. Claim of restitution to regain the value of the
use that was made of the land.
Scenario 2, the contract is between the tenant and the service provider, it would
remain as a conflict between these two persons.
Lecture
In common law trial systems, the judges are observing a process, lawyers bring evidence
forward and challenge the evidence of the other lawyer. At the end, the judges end with
their verdict. (Therefore, in US, tv shows with lawyers in the spotlight)
In civilian courts, judges are active, they engage in the witnesses and ask questions, because
they have the responsibility for making the choices. Therefore, their opinion is that they
must be a part of the trial.
Formal comparing the forms (they look different (putting two texts next to each other is
formal)
Functionalism
What is the problem/need that the law is addressing? What does the law do? What is
its ultimate purpose?
If we understand what the laws functions are, then we can compare the laws. The
function is the similar thing (for ex. the law in Sweden and china is both for justice)
that allows us to compare the differences
Unjust enrichment= when somebody unjustly enriches themselves at somebody else’s
expense
, Universalism and law
Assumes that people everywhere are basically the same
Therefore, the rules that govern their societies are similar enough that we can make
sense of them by comparing them
And we can find similar common rules among them despite differences
*…but if people and legal problems are similar around the world, then why does law often
look so different? culture/ tradition/ history comes into play
Functionalist cautions
If your starting assumptions are wrong, then your comparison falls apart
What might seem similar or universal to you might not be so for somebody else
Just because laws in two places might seem to have the same function, that doesn’t
mean that people treat them the same way in different places, or that they are
meaningful in the same ways
Question 4 of the assignment
What are they comparing: interplay between formal rules that structure rules and
the informal practices within restaurants
What is the functional similarity: the social need/ problem that restaurants in both
countries had to arrange work in restaurant to deliver food and make profit while
delivering a pleasant work environment for workers
Why are they doing this comparison: the international labour organization (ILO) have
general norms/ rules that has to do with labour norms (workers right, relationship
between employers and employees). These rules were largely built on western
standards; therefore they chose Australia (western) and Indonesia. The
appropriateness of these rules for countries that aren’t based on western standards.
Week 2
KC 2.1- The analytic and structural methods of comparative law
The analytic comparison
Focus on comparing the use of complex concepts and rules in different legal systems
Comparing in order to find commonalities and differences in how these concepts and
rules are understood and used
Examples: ownership, contract, standing, personhood
Identifying an ‘ideal type’ of the concept (ideal= abstract idea of ownership, not ideal
as in ‘best’)
- Comparing the degree to which each country’s particular formulation of the
concept fits this ideal depiction
Whereas the functional method is very pragmatic (it starts with a practical/factual
problem, which legal systems provide rules/solutions for); the analytic method is
more concerned with subtle nuances and details in the jurisprudence of a concept.
Much more focused on legal scientific ways of characterizing a concept. It not so
much concerned with, pragmatically, what does ownership look like in a country? It is
about all the nuances ways in which the notion of ownership has evolved in each
legal system to its current understanding (what rights/duties, what are the
limitations, what things can be owned and for long, how is ownership transferred)
