Bibliografía (Revista de revistas) - RabelsZ 2/2013

Última entrega de la Rabels Zeitschrift für ausländisches und internationales Privatrecht – The Rabel Journal of Comparative and International Private Law (RabelsZ): vol. 77 (2013), núm. 2:

Nina Dethloff, Hans Stoll (4.8.1926 - 8.11.2012), pp. 227-232(6)

Aufsätze:

-Lord Neuberger, Judges and Professors - Ships Passing in the Night?, pp. 233-250(18)

-Markus G. Puder, Federalism and Mixity in the United States. A Survey of Federal Judges Regarding Erie Courts and Louisiana's Civil Law, pp. 251-271(21)

-Judith Schacherreiter, The Fate of Ethnocentrism and Cultural Relativism in Comparative Law - Causes, Manifestations and Effective Strategies / Das Verhängnis von Ethnozentrismus und Kulturrelativismus in der Rechtsvergleichung Ursachen, Ausprägungsformen und Strategien zur Überwindung, pp. 272-299(28)

This article addresses different forms of ethnocentrism and cultural relativism in comparative law and seeks to generate alternative approaches. At first glance, cultural relativism seems to be the only alternative to ethnocentrism. However, this either-or fallacy results from an epistemological simplification of the relationship between the Self and the Other and may be transcended by the re-conceptualisation of this relationship. In this way, we can generate alternative approaches in comparative law that go beyond both ethnocentrism and cultural relativism.

In general, ethnocentrism means that one's own norms and standards are universalised and thereby serve as an allegedly neutral basis to learn about, represent, judge and criticise the Other. On the other hand, cultural relativism traces all norms and standards back to the culture where they have been generated and confines their scope of application to this culture of origin. Hence, different cultures are incommensurable; value judgements and critique of one culture from the perspective of another culture are not allowed.

This article discusses different forms of ethnocentrism and cultural relativism with regard to four topics of comparative law: The role of our own standards for value judgements about foreign law; the methodological handling of our prejudices when we try to understand foreign law and its Otherness; the global systematisation of legal systems, in particular the differentiation between European and "other" (non-European) legal families; and the possibility and success of legal transplants between substantially different contexts.

The analysis of ethnocentrism and cultural relativism in these areas shows their common epistemological basis: They result from the relation between the Self and the Other being conceptualised as a dichotomy between two homogenous and totally different entities. This dichotomy forces us to either consider foreign law and foreign legal cultures as similar and submit them to the Self, or as totally different and exclude them as the Other. If we re-conceptualise the relationship between the Self and the Other as a dialectic relationship between heterogeneous and hybrid entities, we can generate comparative law approaches that go beyond ethnocentrism and cultural relativism. These approaches utilise the dialectic force between the Self and the Other as a specific comparatistic source knowledge and basis to generate value judgements, make visible hybridisation, influence between different legal systems and the co-existence of similarities and differences and enforce intercultural legal dialogue and understanding.

Schwerpunkte:

-Reinhard Zimmermann, Against the "Harmful One-sidedness" / Wider die »verderbliche Einseitigkeit«. Einführung in das Symposium, pp. 300-308(9)

On 23 June 2012, on the occasion of the annual meeting of the Association of Friends of the Hamburg Max Planck Institute, a symposium took place on the topic of “The Dialogue between Legal Scholarship and the Courts“. This essay is based on the lecture introducing that symposium. It presents the actors as well as the metaphor of the dialogue, and it draws attention to the distinction that has traditionally been drawn, in this respect, between the continental civilian tradition and the English common law. The essay then very briefly recalls the long history of that dialogue under the ius commune, particularly in Germany, and notes, for the 20th century, a convergence between Germany and England. Even if judge and jurist do not, or do not always, constitute an “integrated community“, they should both fight the temptation to adopt a one-sided perspective that would be injurious for the development of the law: for the development of the law is an enterprise that has to be guided by both theory and practice (Savigny).

-Wulf Goette, Dialogue between Legal Scholarship and the Courts: Germany - Dialog zwischen Rechtswissenschaft und Rechtsprechung in Deutschland am Beispiel des Gesellschaftsrechts, pp. 309-321(13)

This contribution examines the dialogue between theory and practice that has been a characteristic of German legal culture. By way of example, the development of certain features of company law are discussed. The essay describes the forms as well as the results of this extremely successful dialogue, and it leads to the following conclusions:

Judgments should be persuasive. Naturally, this applies first and foremost to the parties, especially the losing parties. But the highest level judicial opinions should also encourage observance by judges of lower courts and legal practice, which live by these decisions. This can only happen if one does not just trust in the “blue sky over the appeal court“ but if one instead relies on balanced arguments for the decision that are embedded in a coherent reasoning that fits seamlessly into the overall legal system. Only under these circumstances will a decision be able to develop an impact beyond the individual case. This attentive, content-focused and discursive treatment of problems can only succeed if judges do not merely reprise similes of their own legal rulings, but instead enter into a critical and self-critical dialogue with legal scholarship, acknowledge the lessons developed there and weigh up the advantages and disadvantages of the arguments. Conversely, legal scholars are challenged to address judicial rulings with respect for the different nature of the judicial task.

This culture has been evident in company law in Germany for many years - if it did not exist, it would have to be invented as quickly as possible - and everyone who, like Savigny, values the “natural unity“ of legal scholarship and legal practice is called upon valiantly to defend this achievement.

-Martin Flohr, Judges and Legal Academics in England / Richter und Universitätsjuristen in England, pp. 322-344(23)

English legal scholarship has initially been confi ned to the accurate exposition of judicial decisions and was consequently held in low esteem by judges. It was not until the expansion of law schools in the 1960s that an imaginative and critical form of legal research established itself. In the 1980s and 1990s, it became common for a number of appeal judges to refer to academic commentary in their decisions, although for the most part citation served only as a substitute for referring to the cases themselves. At the same time, English legal academics became increasingly involved in legal practice, both as part-time barristers and judges. However, since the 1990s, a number of prominent law teachers have developed various new approaches to legal research (taxonomy, interpretive legal theory, rights-based analysis) which aim at challenging established legal doctrines and try to offer a radical reinterpretation of the case law - research that judges find rather unhelpful in their everyday work.

-Geneviève Helleringer, Judicial Melodies and Scholarly Harmonies - The Music of French Legal Interpretation, pp. 345-367(23)

-Christiaan Timmermans, Dialogue between Legal Doctrine and the European Court of Justice, pp. 368-378(11)

-Paul Du J. Plessis, A Dialogue between Legal Theory and Legal Practice - Thoughts from the Ius Commune, pp. 379-387(9)

Literatur:

-Andreas Heinemann, International Antitrust Litigation. Conflict of Laws and Coordination, pp. 388-392(5)

-Norbert Reich, Rösler, Hannes: Europäische Gerichtsbarkeit auf dem Gebiet des Zivilrechts, pp. 393-395(3)

-Axel Flessner, Rühl, Giesela: Statut und Effi zienz. Ökonomische Grundlagen des Internationalen Privatrechts, pp. 396-402(7)

-Michael Stürner, Mankowski, Peter: Interessenpolitik und europäisches Kollisionsrecht. Rechtspolitische Überlegungen zur Rom I- und zur Rom II-Verordnung, pp. 402-406(5)

-Urs Peter Gruber, Trautmann, Clemens: Europäisches Kollisionsrecht und ausländisches Recht im nationalen Zivilverfahren, pp. 406-413(8)

-Giesela Rühl, Rome Regulations. Commentary on the European Rules of the Conflict of Laws, pp. 413-415(3)

-Sebastian A.E. Martens, Bron, Christian M.: Rechtsangleichung des Privatrechts auf Ebene der Europäischen Union, pp. 416-419(4)

-Matthias Weller, Danov, Mihail: Jurisdiction and Judgments in Relation to EU Competition Law Claims, pp. 419-426(8)

-Manfred Herbert, Hoffmann, Hermann: Kammern für internationale Handelssachen, pp. 426-432(7)

-Sandra Hotz, Handbuch Japanisches Handels- und Wirtschaftsrecht, pp. 433-441(9)

-Dieter Martiny, Convergence and Divergence in Private International Law, pp. 441-449(9)

-Felix Dasser, Berger, Klaus Peter: The Creeping Codification of the New Lex Mercatoria. 2. ed., pp. 449-452(4)

-Katia Fach Gómez, Zambrana Tévar, Nicolás: La determinación del derecho aplicable al fondo en el arbitraje de inversiones, pp. 452-455(4)

-Martin Heckel, Pabst, Steffen: Entscheidungszuständigkeit und Beachtung ausländischer Rechtshängigkeit in Ehesachen mit Europabezug. Grundrechtsprobleme und Grundrechtsschutz, pp. 455-461(7)

-Berichtigung zu: Fontanellas Morell, Josep M.: La professio iuris sucesoria, pp. 461-461(1)

Eingegangene Bücher, pp. 462-463(2)

Mitarbeiter dieses Heftes, pp. 463-464(2)

Últimos números: 2/2012, 3/2012, 4/2012, 1/2013.