Jaakko Husa

Comparative law in legal education – building a legal mind for a transnational world

ABSTRACT This paper considers the role of comparative law in contemporary legal education. The discussion builds on an idea according to which it is helpful to make a distinction between educating lawyers and doing comparative research. It is suggested that we should pay more attention to comparative law pedagogics in today’s world, where law graduates must be prepared for working in a global context. Whereas in academic comparative research the goal is to reach a deep cultural understanding of foreign law, in legal education the goal is to learn to “think like a lawyer”. It is argued that by means of teaching foreign law, it is possible to transfer the focus of legal learning away from detailed rules and instead concentrate on general principles. Comparative law-based material and teaching ought to be regarded as a stimulus that sets the learning process into motion. Moreover, it is claimed that more significance ought to be given to the transnational dimensions of law as part of legal education within all branches of law.

Comparative and Economic Approaches to Law: A Tale of Wilful Misunderstanding?

This review article summarises in a critical tone the current state of certain academic misunderstandings surrounding Legal Origins Theory (LOT). In practice this is done by reviewing the book edited by Simon Deakin and Katharina Pistor entitled Legal Origin Theory. The aim is to analyse and discuss LOT from the point of view of legal comparativism and in the light of the collection of key articles concerning the legal origin debate. This review article sheds light on the debate and some of the most crucial arguments presented in the book. The point of view taken here is one of historically sensitive comparative law. The core of the lines of argumentation in the articles is described and analysed from critical point of view.

Book Review: Legal LinguisticsGaldiaMarcus, Legal Linguistics, Peter Lang, Frankfurt am Main etc., 2009, 434 pp., hardback, €68, ISBN 978-3-631-59463-6.

our understanding of the discipline of law, or more broadly the sphere of law, has been expanding significantly during the last thirty years or so. in continental europe the doctrinal study of law (German Rechtsdogmatik) has traditionally been challenged and accompanied by philosophy, history, comparative law and various forms of social sciences – first and foremost, sociology of law. From northern America we have also received various novel branches to the old body of legal studies most commonly conceived as ‘law and other disciplines’, of which law and economics is surely the most familiar. These challenges have their contexts. in practice, in europe many of the late scholarly developments have been triggered by european integration but also by globalization. one of the recent newcomers has been the emerging field of legal linguistics which is far from well defined and being an established field. However, these days there are many who strive to define this field and seek to find a proper place for it in the legal academia. Marcus Galdia’s book Legal Linguistics, published in september 2009 by the peter lang verlag, is a serious and academically ambitious attempt to define what the problems of this interdisciplinary field are and, even more importantly, what this field is all about.1 The outcome of this attempt is a densely written book with more than four hundred pages, covering several languages and with a bibliography of some twenty pages. But it is not only the size that matters; the scope of Galdia’s book is somewhat staggering and it reflects not only the questions of legal linguistics but also the author’s wide linguistic scope and diverse competences: legal theory, comparative law, translation studies, and philosophy of language. These are all covered extensively. The picture received by the reader is well thought-out, and immensely rich in detail and depth concerning the subject. Yet, sometimes the flood of detail comes very close to mentally suffocating the

Metamorphosis of Functionalism - or Back to Basics?

The story of so-called functionalism in comparative law is a bizarre one: from the heights of the methodological throne, where it was once praised, lately it has found itself despised and ridiculed. The fall of functionalism creates a dichotomy: either you keep admiring it or you despise it. From a sceptical perspective there is no point discussing functional method in scholarly comparative law.2 However, for those who see functionalism as one tool in a larger toolbox this contempt comes as a surprise. as Michaels says, socalled functional comparative law ‘stands for everything that is bad about mainstream comparative law’ to its opponents.3 Yet, there are those who see a use for functionalism.4 Even those who regard functionalism with suspicion may state that it ‘still has its virtues and valuable applications today’ or that comparative law ‘should build upon functionalism’s legacy’.5

Gift: The Piece That Does Not Fit the Legal Puzzle

There is something tricky about the gifts. This seems to be especially true with legal Anschauungen and the practice of gift giving. On the one hand, gifts seem to be proof of the better side of mankind, that is our altruistic ability to do good without strings attached. On the other hand, gifts seem to create social obligations difficult to grasp yet very real and many times completely void of legal considerations. Almost everyone has had some personal experience of gifts and the resulting complexities. Towards the end of 1994 this author was feeling rather desperate as the public defence of his doctoral thesis in the theory of public law was approaching. Surprisingly though, it was not anxiety over the public defence although this would consist of several hours filled with intense grilling by two outstanding law professors. Somewhat ignorantly, I assumed that I could survive that part rather well or at least satisfactorily. No, the reason for my unease was the part that was supposed to come after the official defence. I am speaking of a semiobligatory formal party or celebration which virtually every successful doctoral student in Finland must offer shortly after the public defence.1

'We the Judges...': Discovering Constitutional Ius Commune Europaeum

This article grew from a desire to look deeper into the relationship between legal history and comparative public law and, also, from a will to deploy legal history while trying to conceive contemporary European constitutional culture. The ideas and approach entertained in this article are somewhat dissident in their relation with the mainstream debates regarding this subject. Yet, the purpose of this article is not to criticise the novum ius commune Europaeum movement as such. Nor is it to defend or attack the idea of a Common European Civil Code. Rather, the point is to try to inquire if there is something in todays European public law sphere that could be conceived somewhat equivalent to the past ius commune. The quintessential methodological idea here is to use historical legal material as a conceptual tool for modern day discussion. Instead of trying to embark deeper into a private law oriented debate the focus here is shifted towards constitutional law i.e. an area of law that originally was not connected with the ius commune tradition. By means of a close-reading-approach this article tries to conceive if there really is something of ius commune in Europe. Further, could there be, perhaps, a kind of transnational epistemic judicial grammar, taking shape in dialogue between judges, to be found? And, if there is such a thing how it should be regarded: positively as healthy form of non-national constitutionalism or negatively as a popular sovereignty hostile form of international judicial elitism?