Le droit comparé en Argentine à l'aube de l'an 2000 - article ; n°4 ; vol.51, pg 759-773

Pasqualini-Salerno

Description

Revue internationale de droit comparé - Année 1999 - Volume 51 - Numéro 4 - Pages 759-773
15 pages
Source : Persée ; Ministère de la jeunesse, de l’éducation nationale et de la recherche, Direction de l’enseignement supérieur, Sous-direction des bibliothèques et de la documentation.

Sujets

• Droit et juridique

Informations

• Publié par: Revue-internationale-de-droit-compare
• Publié le: 01 janvier 1999
• Nombre de lectures: 17
• Langue: Français
• Poids de l'ouvrage: 1 Mo

Extrait

M. Marcelo Urbano salerno
Mme Valeria Pasqualini-
Salerno
Le droit comparé en Argentine à l'aube de l'an 2000
In: Revue internationale de droit comparé. Vol. 51 N°4, Octobre-décembre 1999. pp. 759-773.
Citer ce document / Cite this document :
salerno Marcelo Urbano, Pasqualini- Salerno Valeria. Le droit comparé en Argentine à l'aube de l'an 2000. In: Revue
internationale de droit comparé. Vol. 51 N°4, Octobre-décembre 1999. pp. 759-773.
doi : 10.3406/ridc.1999.18180
http://www.persee.fr/web/revues/home/prescript/article/ridc_0035-3337_1999_num_51_4_18180H. KÖTZ : ALLEMAGNE 759
6. Sometimes a distinction is made between macrocomparison and
microcomparison. In the early decades of the last century the emphasis
of comparative research seems to have been on microcomparison, that
is, on comparing specific legal solutions intended to deal with particular
problems or conflicts of interest. What rules determine the allocation of
loss in the case of traffic accidents? If an illegitimate child is disinherited
by his father or mother, what rights does the child have? Comparative
studies of this kind are of course in the heartland of modern comparative
law, but there is no doubt that macrocomparison has also come to the fore,
i.e. comparative studies of the different techniques of dispute resolution, of
the styles of legislation or appellate judicial opinions % or the methods
of interpreting statutes or of determining the binding or persuasive force
of precedent. Another promising field of inquiry is based on Max Weber's
observation that the climate of a society's legal system is determined to
a large extent by the kind of people by whom it is dominated, that is, as
Weber calls them, the honoratiores of the law 10. This has led comparative
lawyers to study the personnel by whom the machinery of the administra
tion of justice is handled and guided in various countries and to speculate
on the extent to which the characteristics of a given legal system are
influenced by the attitudes and professional roles of the persons controlling
it.
7. A new field of work for the comparative lawyer was opened up
in the sixties and seventies by the emergence of a great number of indepen
dent states in Africa after World War II. On obtaining independence the
new faced the particularly difficult task of establishing their legal
systems in the wake of colonial administrations which left them with
some heritage of Western law more or less absorbed in a large mass of
domestic customary and religious law, sometimes not even accurately
recorded.
Comparative lawyers provided assistance to the governments of the
new African states by helping them with the task of recording the various
customary laws and making an orderly restatement of them, by making
available to them the skill and experience needed to draft legislation, and
also by sending teaching staff to African law schools.
Comparative lawyers were faced with a similar task when after the
downfall of communism in 1989 the governments of the Eastern European
states decided to thoroughly overhaul their legal systems. It would perhaps
have been best if the countries of Eastern Europe could have agreed on
a common plan and enacted at least a common law of obligations modelled
on that of Western Europe, but that was never a real possibility. There
has been a resurgence of national pride, and each country must go its
9 See H. KÖTZ, "Über den Stil höchstrichterlicher Entscheidungen", 37 Rabeis
Zeitschrift 1973, p. 245 ; H. KÖTZ, "Scholarship and the Courts : A Comparative Survey",
in : D. CLARK (ed.), Comparative and Private International Law, Essays in Honour of
John H. Merryman, 1990, p. 183.
10 M. WEBER, "Die Rechtshonoratioren und ihr Einfluß auf Charakter und Funktion
der Rechtsordnungen", 34 Rabeis Zeitschrift 1970, p. 1. 760 REVUE INTERNATIONALE DE DROIT COMPARE 4-1999
own way. Sometimes they look to German and Swiss law, sometimes to the
new Civil Code of the Netherlands, sometimes to the Vienna Convention on
International Sales, and occasionally, in commercial and economic matters,
to the common law. At any rate, scholars and practitioners, not all of
them with a sufficient grounding in comparative law, have been active,
sometimes in competition with each other, in advising the governments
and legislators on the problems of drafting new legislation.
8. Needless to say that comparative studies are fruitful and indeed
indispensable not only in private law but in public law and criminal law
as well. True, it seems that comparatists have hitherto concentrated on
private law and that most scholars interested in the theory of comparative
law have been private lawyers. One might argue that since public law
and criminal law are based to a significant extent on the particularities
of a country's political structure and are often coloured by strong convic
tions about the individual's role vis-à-vis the state a comparative analysis
of topics from these branches of the law is difficult, if not impossible.
This is wholly unpersuasive. It may happen in public law and criminal
law more often than in private law that the student simply cannot say
which solution is better. But this does not by itself deprive the comparative
approach of its value. There may be problems solved in one legal system
by private law remedies, such as a tort action for damages, while another
legal system uses administrative controls and/or criminal sanctions : Surely
the comparatist must investigate both systems, if only because the distinc
tion between private law and public law has never been fully accepted
by the common law and the demarcation line is nowadays becoming
increasingly blurred even in civil law jurisdictions. At any rate, there is
abundant evidence of the past and present use of comparative analysis
both in public law and criminal law u.
In international law (or the law of nations, as it is called in
Germany) a comparative approach is essential to the understanding of
"the general principles of law recognized by civilized nations" which are
laid down as being one of the sources of public international law by
Article 38 (1) (c) of the Statute of the International Court of Justice. The
methods of comparative law can also be extremely useful in interpreting
treaties, and in helping to understand some of the concepts and institutions
of customary international law. Indeed, the rule pacta sunt servanda, the
idea behind the clausula rebus sic stantibus, and the theory of abus de
droit m international law all have their roots in institutions of municipal
private law, and it is only through comparative law that they can be made
to yield their full potential 12. Nor is there any doubt that the comparative
11 As to criminal law, the seminal study is H.-H. JESCHECK, Entwicklung, Aufgaben
und Methoden der Strafrechtsvergleichung, 1955. For the current position see K. KÜHL,
"Europäisierung der Strafrechtswissenschaft", 109 Zeitschrift für die gesamte Strafrechtswis
senschaft 12 See, 1997, for instance, p. 777. R. BERNHARDT, "Eigenheiten und Ziele der Rechtsvergleichung
im öffentlichen Recht", 24 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
1964, p. 431; K. HAILBRONNER, "Ziele und Methoden völkerrechtlich relevanter
Rechtsvergleichung", 36 für Recht und
1976, p. 190. H. KÖTZ : ALLEMAGNE 761
method is very useful in the field of constitutional law both for scholarly
analysis and constitutional adjudication 13. How else can one understand
the decisions of the European Court of Justice in Strasbourg unless one
takes account of the fact that the Court's interpretation of the Human
Rights Convention relies, at least to some extent, on a comparative study
of the law of the member states? This approach is also used by the European
Court in Luxembourg in the development of rules of administrative law.
Not only are these rules based on the Court's comparative evaluation of
the administrative laws of the member states, but they are beginning in
turn to exercise an influence on those laws. Thus, a "European administrat
ive law" may well be in the making with comparative analysis as the
essential working method 14.
in. FUNCTIONS AND AIMS OF COMPARATIVE LAW
9. One of the most important functions of comparative law is to
assist the law-making agencies in the drafting of legislation 15. Ever since
the second half of the 19th century legislation in Germany has been
preceded by extensive comparative legal research. This was true when
commercial law was unified, first in Prussia and then in the German
Empire, and also, after the Empire had acquired the necessary legislative
powers, of the unification of private law, law of civil procedure, law of
bankruptcy, law of judicature, and criminal law. Account was taken not
only of the different laws then in force in Germany, including the French
law in force in the Rhineland, but also of Dutch, Swiss and Austrian law.
As to the present, it can be said that no major legislation since the