LA318 - Comparative Legal Systems

If you refer to the course outline you will see that the course involves three hours contact a week. In addition you are expected to spend at least five hours a week reading around the subject. Although comparative legal study will be directed there will be occasions when students are expected to be able to make their own comparisons with the common law which they are familiar with from their LLB studies. The delivery of the course will be a combination of lectures, workshops, seminars, student presentations, and student-directed research and study, involving the use of the library and internet resources.

A number of texts have been placed on reserve. Please respect the rules relating to reserved material. Because the texts used to support this course have to come from Europe and elsewhere they take some time to arrive, so a lost or misplaced book means a long wait for everyone before a replacement can be obtained.

Additional materials can be found in journals and on websites. Reference will be made to these wherever possible and copies of articles put on reserve. Students are invited to draw the attention of the course co-ordinator to any additional materials they come across.

Most of the materials will be text materials as cases and legislation relating to other systems is not easily obtainable – unless in a collection of cases and materials. Materials referred to will be in English – which is not always the case in comparative law courses – but students are encouraged to read materials in other languages if they have language competence. It will be noted form the texts referred to that much useful material in other languages is referred to in footnotes and bibliographies.

While the course co-ordinator is responsible for much of the course, students have the benefit of being lectured by a number of lecturers expert in particular legal systems. It is to be appreciated that individual lecturers will have their own style of approaching their subject and while some broad guidelines will be issues to all contributors to the course as regards basic content it is to be expected that breadth and depth as well ands emphasis will vary from legal system to legal system once specific systems are studied.

During the course students are expected to range widely across time, countries, legal cultures and concepts. You will need to learn something about history, geography, politics, language and religion as well as law. If you are to get the most out of the course you will need to be open minded and curious, prepared to learn not only about other legal systems but also to reflect on your own, its history, peculiarities, strengths and weaknesses.

There has been, and still is, considerable academic debate as to what the focus of a course on comparative law should be. This course is primarily legal systems. It does not seek to cover all the legal systems of the world, nor to teach students everything about the legal systems that have been selected. It is moreover about systems rather than rules, and although some rules may be touched on for specific topics, the approach is broad rather than narrow. The aim is to introduce students to differences of approach to legal problems and to encourage an understanding of some of the fundamental aspects of different legal systems, such as the sources of law, the principal divisions and classification of the law, the legal family to which a system belongs, the court structure and the respective roles of judges, lawyers and academics.

Read: Hurst v Picture Theatres [1915] 1 KB 1 and Cowell v Rosehill Racecourse Co. Ltd. (1937) 56 CLR 605

Comment on the different attitudes expressed in these two cases to the legal issue before the court.

Consider this problem:

A chicken farmer asks an expert to administer a medicine to his flock of chickens to prevent the outbreak of disease. The expert acquires the medicine from a third party and gives it to the chickens. The chickens die.

Note:

this problem is not specific to any particular legal system
what issues are raised by the problem?
are any of these legal issues?
how do you know if they are legal issues?
if the farmer asked you for you advice how would you go about finding the answer

Now set the problem in legal systems based on the following premises:

Legal rights and obligations only arise where there is an exchange of money, or promises or labour
Legal obligations arise whenever it can be said that one person owes a duty of care to another and this has been breached with consequential harm
If there is the intention to be legally bound then liability flows from that
A person is liable for all the harm the flows from his or her acts or omissions
Everything that happens is the will of supernatural powers
Litigation is dishonourable and must be avoided
Individuals have no property rights. Everything is owned by the state for the people

Consider how these different premises determine different approaches to the problem.

Farran S Teaching Comparative Law: Lessons from Experience School of Law Occasional Paper

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