Сравнительные правовые исследования: между прагматизмом и перфекционизмом

2019/2020

Учебный год

RUS

Обучение ведется на русском языке

6

Кредиты

Кто читает:

Департамент теории права и сравнительного правоведения

Статус:

Курс по выбору

Когда читается:

1-й курс, 1 семестр

Преподаватель

Полдников Дмитрий Юрьевич

Программа дисциплины

Аннотация

The course on the comparative theory and methodology of legal studies is designed for the first-year PhD law students at the National Research University “Higher School of Economics” (HSE) who are interested in opening up new horizons in their research of national (Russian) law. In today’s progressively internationalized world, comparative approach to legal studies becomes more and more essential to gain fuller understanding of any national law, to realize the causes of its development, to criticize it, and also to find a wider international audience for one’s research findings. Yet all these promises require some degree of familiarity with the complex toolbox called “comparative law”. For this reason, the instructor of the course aims at introducing the complexity of comparative legal studies today. A plethora of comparative theories and methods are grouped together around three major types of understanding the phenomenon of law: 1) as an instrument of social transformation, 2) as the reflection of a given culture, 3) as an autopoietic system. Each kind of legal consciousness is linked with specific methods to understand and to research the law. Upon completing the course, the PhD students are expected to realize the need for comparative law and its complexity in today’s legal scholarship, to recognize major methods of comparative research and their underlying assumptions, as well as to figure out the implications of all the above for their PhD research projects. The course is subdivided into five topics each having a test but no blocking elements. In order to get a credit for the course, the PhD student is expected to acquire the following competences: to know all three major approaches to compare laws; to be able to link particular methods of comparing laws with one of the approaches; to be capable of suggesting a meaningful way to implement those approaches and methods in one’s own research project.

Цель освоения дисциплины

• The course aims at introducing the PhD students the major approaches in today’s comparative law, its functions, aims, methods. As its further objectives, the course intends to present the PhD students: - how the approaches to compare laws and institutions are linked with the legal consciousness in terms of basic assumptions, academic paradigm(s), legal style(s); - how this linkage determines the choice of the specific methods of comparison; - how the results of comparison ultimately depend of the choice of the approach; - how to integrate the agenda to comparative legal studies into one’s own PhD research project.

Планируемые результаты обучения

• Defines basic concepts and approaches of current comparative law;
• Explains how comparative approaches are linked to legal consciousness and basic assumptions of academic paradigm
• Reviews and summarizes recommended academic papers on comparative law
• Distinguishes and identifies key methods used in such papers
• Coherently integrates comparative methods into one’s own PhD research project to understand better Russian (national) legal system

Содержание учебной дисциплины

• Topic 1. Comparative approach to national law in today’s world
  1. The challenges to the state-centered law and positivism in the post-modern world. 2. The shortcomings of parochial legal scholarship. 3. The promises of comparative approach. 4. Comparative law and comparative legislation: theory, methods, and branches. 5. Blueprints of a comparative legal study and a comparative research paper. 6. Legal consciousness, scholarly paradigm, and approaches to comparative law.
• Topic 2. Instrumental approach in comparative law
  1. The (national) law as a means to social (extralegal) goals. 2. Legal systems and academic schools where this attitude prevails. 3. Functionalism: the classical functional method, its critique, and functionalism 2.0. 4. Law and economics: positive and normative economic analysis of law. 5. Promises and problems of this approach with regard to Russian law.
• Topic 3. Cultural approach in comparative law
  1. The (national) law as a reflection of the ideas, customs, and social behavior of a particular people or society. 2. Legal systems and academic schools where this attitude prevails. 3. Historical (diachronic) comparison of legal traditions: innovative elements and circulation of legal ideas or legal transplants. 4. Hermeneutical comparison: from outer signs to inner meaning of legal rules and institutions. 5. Promises and problems of this approach with regard to Russian law.
• Topic 4. Axiological approach in comparative law
  1. The inherent value of the (national) law as an autopoietic system. 2. Legal systems and academic schools where this attitude prevails. 3. Systematic (structural) and conceptual comparison. 4. Teleological (jurisprudential) comparison of legal values. 5. Promises and problems of this approach with regard to Russian law.
• Topic 5. Understanding Russian law through comparative approaches
  1. Russian law and its institutes in comparative perspective: asking the “right” questions. 2. Russian law vis-à-vis other legal systems: imperfect copy, unique, or mixed? 3. Functional and economic analysis of Russian law: doing business in Russia? 4. Cultural approach to Russian law: understanding chronic legal nihilism and path-dependency? 5. Axiological understanding of Russian law: decoding the inborn Eastern Slavic values? 6. Promises and problems of combining various approaches in a “deep-level comparison”. 7. Particular challenges and issues of comparative public and private law.

Элементы контроля

• Attendance and participation
  The current evaluation is based on attendance, active participation and in-class discussion during seminars. The students will be evaluated on their performance during the seminars. Each student is expected to attend all the seminars and lessons and being prepared on the topic of the lesson in advance. The students must have previously studied in depth the assigned material. If students are absent for many classes, they receive a penalty on their final grade. If students are absent: - for the 10% of the classes, they receive a penalty of 1 point on their overall grade; - for the 20% of the classes, they receive a penalty of 3 points on their overall grade; - for the 30% of the classes, they receive a penalty of 5 points on their overall grade; - for the 40% of the classes, they receive a penalty of 7 points on their overall grade.
• Exam
  The draft paper matches the standard for research papers to be published in peer-review journals and can be submitted for publication; it follows the blueprint of a comparative research paper; its design indicates the relevance of the theme, the main issue(s) of the reviewed publication, the pool of sources in use, the methods of resolving the issue, the main results, the structure of the research; the main content of the draft research paper elaborates all the above; the conclusion presents the outcomes of the research that are relevant to the research objectives. 8-10 The draft paper matches most of the standard requirements for research papers to be published in peer-review journals and can be submitted for publication after some revision; it generally follows the blueprint of a comparative research paper; its design indicates the relevance of the theme, the main issue(s) of the reviewed publication, the pool of sources in use, the methods of resolving the issue, the main results, the structure of the research; the main content of the draft research paper elaborates most of the above; the conclusion presents the outcomes of the research which are generally relevant to the research objectives. 6-7 The draft paper does not match most of the standard requirements for research papers and cannot be submitted for publication without major revision; it does not follows the blueprint of a comparative research paper; its main content does not elaborate the comparative research design; the conclusion partially presents the outcomes of the research which are not always relevant to the research objectives. 4-5 The draft paper does not match the standard requirements for research papers and cannot be submitted for publication; it does not follows the blueprint of a comparative research paper; its main content does not elaborate the comparative research design; the conclusion does not present the outcomes of the research or presents the outcomes that are not relevant to the research objectives. 1-3 The draft paper has not been submitted at all or not submitted on time without good reasons (due to serious technical or health issues that the author can prove with the relevant evidence). 0

Промежуточная аттестация

• Промежуточная аттестация (I семестр)
  0.3 * Attendance and participation + 0.7 * Exam

Список литературы

Рекомендуемая основная литература

• Kischel, U., & Hammel, A. (2019). Comparative Law (Vol. First edition). Oxford, United Kingdom: OUP Oxford. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=2032077
• Введение в сравнительное правоведение в сфере частного права. Т.1: Основы, Цвайгерт, К., 1998
• Введение в сравнительное правоведение в сфере частного права. Т.2: Договор; Неосновательное обогащение; Деликт, Цвайгерт, К., 1998

Рекомендуемая дополнительная литература

• Caenegem, R. C. van. (2002). European Law in the Past and the Future : Unity and Diversity Over Two Millennia. Cambridge: Cambridge University Press. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=73957