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International institutions are increasingly engaged in the exercise of public power – traditionally exercised by states – that might adversely affect individuals. Consequently, calls have arisen for checks and balances in order to provide affected individuals with adequate avenues for recourse and redress. Developing the ‘rule of law’ concept at th...
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... Legal scholars are used to compare legal systems or institutions belonging to the same level, both national (i.e., for comparative constitutional law) and international level (i.e. comparing international institutions) (Momirov & Fourie, 2009). ...
... In the first case, we can use this mode of legal comparison "i.e. typically in the context of the internalization of norms and regulations by national legal orders, whereby national law is required to incorporate international concepts into the national legal system" (Momirov & Fourie, 2009). In the second case, we can use vertical bottom-up legal comparison, analyzing "the transposition of legal concepts, or the ideas behind them, from national to international level" (Momirov & Fourie, 2009). ...
... typically in the context of the internalization of norms and regulations by national legal orders, whereby national law is required to incorporate international concepts into the national legal system" (Momirov & Fourie, 2009). In the second case, we can use vertical bottom-up legal comparison, analyzing "the transposition of legal concepts, or the ideas behind them, from national to international level" (Momirov & Fourie, 2009). For example, in constitutional law, the comparison is horizontal when one might take into account national legal systems (or their legal formants) or even national systems in relationship with supranational legal systems. ...
... Arguably, if foreign law is not an authoritative legal source for national legal practitioners, then the legitimacy of the vertical bottom-up comparative method might be approached in a highly reticent manner, as referring to the transposition of legal concepts from national to international level 14 . Importing foreign legal ideas or legal concepts from international law into the national legal arena 15 might have the meaning of "divorcing those legal ideas from the cultural context in which they originated', as MOMIROV and FOURIE wrote 16 . ...
... Legal scholars are used to compare legal systems or institutions belonging to the same level, both national (e.g. for comparative constitutional law) and international level (e.g. comparing international institutions) (Momirov and Naudé Fourie, 2009). Many of these scholars are today devoted to the study of global law, highlighting the need to use the comparative method, and this does not necessarily mean that they have to consider only a horizontal form of legal comparison. ...
... In the first case, we can use this mode of legal comparison "e.g. typically in the context of the internalization of international norms and regulations by national legal orders, whereby national law is required to incorporate international concepts into the national legal system" (Momirov and Naudé Fourie, 2009). In the second case, we can use vertical, bottom-up, legal comparison, analyzing "the transposition of legal concepts, or the ideas behind them, from national to international level" (Momirov and Naudé Fourie, 2009). ...
... typically in the context of the internalization of international norms and regulations by national legal orders, whereby national law is required to incorporate international concepts into the national legal system" (Momirov and Naudé Fourie, 2009). In the second case, we can use vertical, bottom-up, legal comparison, analyzing "the transposition of legal concepts, or the ideas behind them, from national to international level" (Momirov and Naudé Fourie, 2009). For example, in constitutional law, the comparison is horizontal when one might take into account national legal systems (or their legal formants) or even national systems in relationship with supranational legal systems. ...
This article grew to look deeper into the relationship between different methodological tools in comparative law enquiries. There are several factors that currently affect these enquiries, such as the emergence of new spheres of normativity and transnational actors determining a new configuration of the relationship between centre and periphery. Different forms and visions of legal pluralism could characterise a cultural tradition and different ways, in which existing nations, which have a pluralistic legal system, interact. Furthermore, one might add the consideration that the presence of different forms of pluralism—a pluralism of pluralisms—implies a constant and urgent need to reconsider the adequacy of the methodologies in comparative law. Hence, we can use different approaches because there are different purposes that the comparison pursues. Though the horizontal comparison is certainly a widespread tendency for comparative analyses, from a methodological point of view, we need to consider the importance of forms of vertical comparison, both a top-down and bottom-up approach.
... Nonetheless, despite the utility of such works, there is scepticism within the public international law field that comparative law drawn from the domestic arena is relevant to what is often considered to be the unique international law system. 102 Even aside from any notions of uniqueness, international law research tends to shy away from comparative law methodologies. 103 An uncharitable explanation could be that it is due in part to international law's parochial and superior nature. ...
The effective development and operation of the law faces many obstacles. Among the more intractable yet hidden barriers to
the law are legal cultural disconnects and discontinuities. These occur when opposing legal cultural characteristics from
different legal cultures are forced to interact as part of the implementation of the law across two different legal cultures.
This conflictual interaction can impede or block the success of that law. While present in domestic legal systems, these conflicts
are more likely, and may be deeper, between the many different legal cultures involved in the international legal order. Identification
of such legal cultural disconnects and discontinuities is the first step towards developing strategies to ameliorate potential
conflicts between opposing legal cultural characteristics. This identification requires the examination of the relevant legal
systems with legal culture in mind—a legal cultural analysis. However, this methodology is rarely employed. To the extent
that we do see legal cultural analyses, they are applied almost exclusively in the domestic arena. When it is applied across
legal systems, it becomes a part of comparative law methodology. This merger of comparative law and legal cultural approaches
is unusual, indeed almost unheard of in the international legal arena. This article explores this methodology and argues that
it is possible and valuable
... Nonetheless, despite the utility of such works, there is scepticism within the public international law field that comparative law drawn from the domestic arena is relevant to what is often considered to be the unique international law system. 102 Even aside from any notions of uniqueness, international law research tends to shy away from comparative law methodologies. 103 An uncharitable explanation could be that it is due in part to international law's parochial and superior nature. ...
As a new international economic policy, microtrade will face a whole host of issues, including potential legal cultural obstacles. Those legal cultural issues will arise as a result of the different and sometimes conflicting legal cultures of the varied participants within the different fora and communities involved in microtrade from the LDCs to the NGOs to the artisans within the exporting entities. This paper identifies many of the legal cultural issues involved in microtrade, with such identification ideally then permitting the amelioration of the negative impact on microtrade of those legal cultural issues. Many legal cultural issues will be explored, including the legal cultures associated with rural communities, women, international trade law, the microtrade organization, and the legal culture associated with small entities.
The striving of the Republic of Kazakhstan for international integration and entry into influential international structures is impossible without the introduction of advanced experience in the field of labour law. Therewith, the labour law of each country is a unique and very broad branch of law; therefore, for the purposes of this study, such parameters as wages, provisions on weekends and holidays, as well as the issue of concluding and terminating an employment contract as the most fundamental labour law issues. To achieve the objectives of the study, the comparative method is used as the main one, both in horizontal and vertical as-pects. At the same time, the classical inductive method is used to formulate many provisions as an addition. For comparison, the authors of the study take the expe-rience of the United States, Russia, and China as the main trading partners of Ka-zakhstan, relations with which are of decisive importance for the country. From the stated provisions, it was concluded that the labour law of the Republic of Ka-zakhstan is quite progressive, although they need to be adjusted. Among the ana-lysed provisions, first of all, it is necessary to correct the size of the minimum wage, as the most important economic and legal indicator, and also to consider the pos-sibility of extending the minimum paid leave from 24 to 28 days. Therewith, the provisions on a written employment contract and the protection of employees from unjustified dismissal are quite progressive.
In recent years both the United States and China have introduced data protection and cybersecurity frameworks to address the social, economic, and political challenges posed by the platform economy. While much of the discourse has focused on the implementation of these frameworks through top‐down, centrally administered institutions, little discussion has turned to the role of platform regulation from the bottom up—that is, the ability of individuals to affect corporate behavior through the courts as litigants. This paper attempts to address that gap by offering a comparative analysis of the role of data protection litigation in both the United States and China as one institutional mechanism through which governments may pursue their larger regulatory goals. Privacy and data protection laws in both countries grant individuals enforceable rights against other private and public actors. While litigants in the United States and China face barriers to affect corporate behavior, they do so for notable dissimilar reasons due to the unique and historical differences of the legal systems in both countries. Despite these differences, courts in both the United States and China will play an increasingly important role in platform regulation
This study offers a critical account of the reasoning employed by the European Court of Human Rights, particularly its references to European consensus. Based on an in-depth analysis of the Court’s case-law against the backdrop of human rights theory, it will be of interest to both practitioners and theorists.
While European consensus is often understood as providing an objective benchmark within the Court’s reasoning, this study argues to the contrary that it forms part of the very structures of argument that render human rights law indeterminate. It suggests that foregrounding consensus and the Court’s legitimacy serves to entrench the status quo and puts forward novel ways of approaching human rights to enable social transformation.
