Inhoudsopgave WLS
Week 1 – legal traditions/ families and legal pluralism
- Legal comparison
- Legal families/ traditions
- Functionalism
- Legal pluralism
- Legal centralism
Week 2 – civil law
- Fas and ius
- Fall of rome
- Justinian Code: Middle Ages
- Codification of law
- Subjective approach
- France and germany – court structure and interpretation
Week 3 – common law
- Binding precedent
- Legal development in common law
- Hierarchy of courts
- Statutes
- US common law
- Role of the judge
- History & development: English law
- System of equity
Week 4 – law, identity, and questions of constitutionality
- Liberal constitutionalism
- Secularism & constitutionalism
- Secularism and the French constitution
- UK and liberal constitutionalism
- France: the ban on face veils
- ECtHR: S.A.S. v France
Week 5 – indian law
- Hindu tradition
- Manu, dharma, brahma, vamas
- Hindu law 16th – 19th century – East India Company
- Constitution of India
- Supreme court of India - Dr. Subhash Kashinath Mahajan v The State of Maharashtra
- Hindu law – caste system
- Empiricism and law
- Modern Indian law
- Legal aid and public interest litigation
Week 6 – international law
- International law
- Definition of a state
- Difference state and government recognition
- John Austin
- Hart
- Example of World Trade Organisation
- The Medieval Icelandic system
- The UN & questioning sovereign equality
, - Methods of outcasting
Week 7 – consumer and corporate debt: law and theory
- Corporate banktruptcy
- Contract v. State: Kohler (Lehrbuch des Konkursrecht (Handbook of Bankruptcy Law
1891)
- Thomas Jackson - The Logic and Limits of Bankruptcy Law (1986)
- Consumer bankruptcy – Lazzarato and Soederberg – Marxism
- Personal/ consumer bankruptcy in France, UK, US
- Personal insolvency – corporate insolvency
- Explanations of big swap
Week 8 – law, religion and ethics in insolvency law
- The stigma of insolvency – France 19th century
- French revolution (1789-1799)
- Bankruptcy
- Napoleon – commercial Code of Napoleon
- Information asymmetry
- Roman Law – Middle Ages
- Manus Iniectio/nexum
- Italy in the middle ages
- Civil law: Kohler
- Common law: middle ages
- 19th century
Week 9 – tradition v Economy: Debtor-friendly measures (14th-18th centuries)
- Debtor friendly measures
- Moratorium
- Debtor friendly approaches (1400-1800)
- Meditation
- Engalnd 1700-1900
- Personal insolvency
- 19th century – commercial code of France 1807
Week 10 – traditions v Economy: policy considerations (20th – 21st Century)
- LLSV
- Article by Deakin, Mollica and Sarkar
- Creditor contract and debtor control
- Insolvency regulation and the economy
- Thomas Jackson
- Effects of loans - Lenders/ borrowers -Social and social securatiy costs - Forum shopping
(COMI)
Week 11 – reform v Tradition: Insolvency laws today
- Menu approach
- Majority decisions – court decisions
- Entity rescue approach – asset-oriented approach
- Procedural supervision – administration
- Two examples France
- US corporate bankruptcy law
- Ideological differences - Germany
Week 12 – reform v Tradition: Insolvency laws today
- European pre-insolvency law
- Eu developments
,- EU substantive insolvency law: Directive of 2019/1023
- Cram down
- Eidenmuller
, Week 1 - Legal Traditions/Families and legal pluralism
Comparative law tradition = setting similar elements of two or more legal systems against each
other to identify similarities and differences
-> can be between national legal systems but comparisons can also be made on a state level or
law now and law many years ago in the same place
Aims of comparative law:
• sentimentalists: to create understanding for other people and to ensure peaceful coexistence
between different countries
• to achieve uniformity (is seen as an advantage, but uniformity also has disadvantages: if there
are more differences between legal systems the chance of progress is greater, uniformity is not
always achieved using comparative law it can also be achieved through the prestige of a system)
• acquisition of knowledge (comparative law assumes the plurality of legal rules and institutions,
the study looks at this to identify differences and similarities)
The comparability of different legal systems:
• even legal systems that look very different can be compared
• some people believe that only systems that have written law can be the subject of legal
comparison, this has its origin in positivism (positivist conception of law): the idea that law can
only be created by the state. This is a European idea, where the idea is that law and state
coincide. However societies without a state and written language can also have an effective
system for handling their social rules. They still have something in common: there is still social
order because people follow the rules. There are differences but this doesn’t mean that systems
without written laws are not real laws
Starting point for comparative law: foreign legal studies
• it’s often considered best to study the primary sources from the legal system that is being
studied (texts of statues, judicial precedent)
-> but not an absolute necessity: obtaining a good knowledge of the legal system in question may
be difficult, especially for more exotic legal systems. Foreign statues and judicial decisions are
also often difficult to obtain, even if much reliable information is these days available on the
internet.
• secondary sources of law like textbooks, manuals, articles, etc.
- Judges and practicing lawyers in the foreign country itself read and allow themselves to be
influenced by well-regarded works of these types.
- It may be difficult to understand the primary sources and make full use of them without having
a substantial amount of background knowledge. It is more rational to first read an overview of the
legal issues in a recent article or reference book that to delve directly into the text of statutes and
judicial decision.
-> so use both primary sources and secondary sources of law
Legal anthropology = studying a legal system of another country or their own
• can provide a lot of information for people studying comparative law
• doesn’t only serve the purpose of better understanding or upholding the law
• colonial era: legal anthropologists tried to give the colonial authorities the information they
needed to impose European standards on the indigenous population
• another goal: to find interesting similarities between the laws of different populations and to
study the evolution and spread of different laws and institutions
• it can help us study former colonies that implemented European laws and institutions (the laws
and institutions are applied by the indigenous people, but the systems are still different from the
European systems, because their old legal system still find their way into the current system,
legal anthropology can help to find the influences of the indigenous basis or norms)
Factors contributing to the diversity of legal systems (reasons for the differences):
• the political system that underlies a national legal system (e.g. democratic constitutions,
referendums, autocratic form of government)
Week 1 – legal traditions/ families and legal pluralism
- Legal comparison
- Legal families/ traditions
- Functionalism
- Legal pluralism
- Legal centralism
Week 2 – civil law
- Fas and ius
- Fall of rome
- Justinian Code: Middle Ages
- Codification of law
- Subjective approach
- France and germany – court structure and interpretation
Week 3 – common law
- Binding precedent
- Legal development in common law
- Hierarchy of courts
- Statutes
- US common law
- Role of the judge
- History & development: English law
- System of equity
Week 4 – law, identity, and questions of constitutionality
- Liberal constitutionalism
- Secularism & constitutionalism
- Secularism and the French constitution
- UK and liberal constitutionalism
- France: the ban on face veils
- ECtHR: S.A.S. v France
Week 5 – indian law
- Hindu tradition
- Manu, dharma, brahma, vamas
- Hindu law 16th – 19th century – East India Company
- Constitution of India
- Supreme court of India - Dr. Subhash Kashinath Mahajan v The State of Maharashtra
- Hindu law – caste system
- Empiricism and law
- Modern Indian law
- Legal aid and public interest litigation
Week 6 – international law
- International law
- Definition of a state
- Difference state and government recognition
- John Austin
- Hart
- Example of World Trade Organisation
- The Medieval Icelandic system
- The UN & questioning sovereign equality
, - Methods of outcasting
Week 7 – consumer and corporate debt: law and theory
- Corporate banktruptcy
- Contract v. State: Kohler (Lehrbuch des Konkursrecht (Handbook of Bankruptcy Law
1891)
- Thomas Jackson - The Logic and Limits of Bankruptcy Law (1986)
- Consumer bankruptcy – Lazzarato and Soederberg – Marxism
- Personal/ consumer bankruptcy in France, UK, US
- Personal insolvency – corporate insolvency
- Explanations of big swap
Week 8 – law, religion and ethics in insolvency law
- The stigma of insolvency – France 19th century
- French revolution (1789-1799)
- Bankruptcy
- Napoleon – commercial Code of Napoleon
- Information asymmetry
- Roman Law – Middle Ages
- Manus Iniectio/nexum
- Italy in the middle ages
- Civil law: Kohler
- Common law: middle ages
- 19th century
Week 9 – tradition v Economy: Debtor-friendly measures (14th-18th centuries)
- Debtor friendly measures
- Moratorium
- Debtor friendly approaches (1400-1800)
- Meditation
- Engalnd 1700-1900
- Personal insolvency
- 19th century – commercial code of France 1807
Week 10 – traditions v Economy: policy considerations (20th – 21st Century)
- LLSV
- Article by Deakin, Mollica and Sarkar
- Creditor contract and debtor control
- Insolvency regulation and the economy
- Thomas Jackson
- Effects of loans - Lenders/ borrowers -Social and social securatiy costs - Forum shopping
(COMI)
Week 11 – reform v Tradition: Insolvency laws today
- Menu approach
- Majority decisions – court decisions
- Entity rescue approach – asset-oriented approach
- Procedural supervision – administration
- Two examples France
- US corporate bankruptcy law
- Ideological differences - Germany
Week 12 – reform v Tradition: Insolvency laws today
- European pre-insolvency law
- Eu developments
,- EU substantive insolvency law: Directive of 2019/1023
- Cram down
- Eidenmuller
, Week 1 - Legal Traditions/Families and legal pluralism
Comparative law tradition = setting similar elements of two or more legal systems against each
other to identify similarities and differences
-> can be between national legal systems but comparisons can also be made on a state level or
law now and law many years ago in the same place
Aims of comparative law:
• sentimentalists: to create understanding for other people and to ensure peaceful coexistence
between different countries
• to achieve uniformity (is seen as an advantage, but uniformity also has disadvantages: if there
are more differences between legal systems the chance of progress is greater, uniformity is not
always achieved using comparative law it can also be achieved through the prestige of a system)
• acquisition of knowledge (comparative law assumes the plurality of legal rules and institutions,
the study looks at this to identify differences and similarities)
The comparability of different legal systems:
• even legal systems that look very different can be compared
• some people believe that only systems that have written law can be the subject of legal
comparison, this has its origin in positivism (positivist conception of law): the idea that law can
only be created by the state. This is a European idea, where the idea is that law and state
coincide. However societies without a state and written language can also have an effective
system for handling their social rules. They still have something in common: there is still social
order because people follow the rules. There are differences but this doesn’t mean that systems
without written laws are not real laws
Starting point for comparative law: foreign legal studies
• it’s often considered best to study the primary sources from the legal system that is being
studied (texts of statues, judicial precedent)
-> but not an absolute necessity: obtaining a good knowledge of the legal system in question may
be difficult, especially for more exotic legal systems. Foreign statues and judicial decisions are
also often difficult to obtain, even if much reliable information is these days available on the
internet.
• secondary sources of law like textbooks, manuals, articles, etc.
- Judges and practicing lawyers in the foreign country itself read and allow themselves to be
influenced by well-regarded works of these types.
- It may be difficult to understand the primary sources and make full use of them without having
a substantial amount of background knowledge. It is more rational to first read an overview of the
legal issues in a recent article or reference book that to delve directly into the text of statutes and
judicial decision.
-> so use both primary sources and secondary sources of law
Legal anthropology = studying a legal system of another country or their own
• can provide a lot of information for people studying comparative law
• doesn’t only serve the purpose of better understanding or upholding the law
• colonial era: legal anthropologists tried to give the colonial authorities the information they
needed to impose European standards on the indigenous population
• another goal: to find interesting similarities between the laws of different populations and to
study the evolution and spread of different laws and institutions
• it can help us study former colonies that implemented European laws and institutions (the laws
and institutions are applied by the indigenous people, but the systems are still different from the
European systems, because their old legal system still find their way into the current system,
legal anthropology can help to find the influences of the indigenous basis or norms)
Factors contributing to the diversity of legal systems (reasons for the differences):
• the political system that underlies a national legal system (e.g. democratic constitutions,
referendums, autocratic form of government)
