Suggestions regarding comparative Legal Analysis: Categorizing with care and prioritizing facts in the common Law Tradition

The need to develop the field of comparative legal analysis is becoming more widely acknowledged, and scholars in the respective fields of comparative law and legal skills have undertaken efforts to articulate the principles that will allow lawyers trained in one legal tradition to effectively engage in the reasoning of a different legal tradition.  An initial question is whether a comparative system of this sort should produce a method of analysis that is not grounded in a particular system, one which would be equally accessible to all participants.  Another approach would be tradition specific, and would identify the legal traditions at issue and then provide the conceptual tools necessary to bridge the gap.  Assuming that the proper method takes specific legal traditions into account, the question posed by civil law lawyers in the common law tradition is what the key conceptual tools are.  This presentation suggests that the key concepts include the careful use of the more general concept of comparative categories together with the more specific concept of the limitations imposed on common law rules by their factual context.

 

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