Comparing Law: Winter 2010 – Volume 3 – Issue 1

Catalogue no.: QM-AZ-19-007-EN-N

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Editorial


Editorial

By: Wim Muller

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Articles


Comparing Laws in the Enforcement of EU and National Competition Laws

By: Kati Cseres

This paper discusses the topic of ‘Comparing Laws’ in the specific context of the decentralised enforcement of EU competition law and the parallel application of national competition laws. More specifically, it deals with the harmonisation process between the Member States’ and the EU competition laws. This is a unique process as at first sight it accommodates regulatory competition between the Member States and the Commission, resulting in the emergence of voluntary harmonisation.

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Confronting the symbolic position of the judge in western European legal traditions: A comparative essay

By: David Marrani

For Legrand, “the two legal traditions represented in Western Europe – known to Anglophones as ‘civil law’ and ‘common law’ – find themselves interacting with one another within a general legal framework, that of the Treaty of Rome”. Because these two legal traditions remain “discursive formations of sufficient homogeneity”, making them “autonomous discursivities”, they permit the definition of “two modes of understanding reality (reflecting the two foundational mythologies)”. On this basis, and knowing that comparative law is, as expressed by Richard, only an anamorphosis of legal theory, while for Legrand it is “a commitment to interdisciplinarity”, I have decided to look closely at the symbolic position of the judge in both legal traditions. I aim to do this through the lens of what Wittgenstein believes to be another “powerful mythology” – psychoanalytic theory. I will mainly, but not exclusively, rely upon Freud and Lacan here. The latter has perhaps more to do with this article than Freud, in a way, with regard to ‘autonomous discursivities’ and the place he gives to language.

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Le contrôle de constitutionnalité français dans le contexte européen et international: Une question de priorités

By: Ottavio Quirico

Le concept de norme est fondamental. Avec les notions d’espace, de population et de pouvoir, il contribue à la définition de l’état en tant qu’ordre juridique, du moins si l’on présume une certaine identité entre la norme et le droit (ou le devoir). Ainsi, d’un point de vue hiérarchique (vertical), tout ordre juridique peut être conçu comme un système de règles organisées sur différents niveaux.

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Virtues, Perfectionism and Natural Law

By: Michele Mangini

Many contend that liberalism is weak from the point of view of value orientation, because it neglects that central part of human experience which is expressed by substantive ideas of the good, such as human flourishing, the good life, human goodness, and the like. This paper argues that there is a long tradition, in the Western culture, of a substantive view of human goodness revolving around the notion of ‘virtues’

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Economic Freedom as Political Virtue: An Insight from the Perspective of Value Pluralism

By: Oles Andriychuk

Historically market failure is seen as a condition where reliance on the spontaneous order does not deliver optimal results for the economy. Thus, it is a situation where a distribution of goods and services in the economy is conducted inefficiently. In other words, the successfulness of the market process is seen from a perspective which is external to the market process itself. The argument of this paper is that the market process should be evaluated as independent economic freedom.

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Instrumentalisation of Freedom of Expression in Postmodern Legal Discourses

By: Uladzislau Belavusau

This paper is an attempt to summarise and rationalise three dominant academic discourses related to the critical appraisal of freedom of expression, stemming from postmodern jurisprudence, from a transatlantic perspective. This type of conceptualisation of free speech was initially almost exclusively pertinent to the American legal debate.

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Book Reviews


The Ashes of Law – Book Review: Franz von Benda-Beckmann, Keebet von Benda-Beckmann and Julia Eckert, Rules of Law and Laws of Ruling: On the Governance of Law (Burlington, Ashgate, 2009)

By: Guilherme Vasconcelos Vilaça

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