"Courts applying the law : perspectives from Europe and Asia", a new book I edited just appeared at Peter Lang

 

I had the privilege of editing this bilingual volume, published in English and French, which brings together contributions from ten participants, including me.

The volume illuminates judicial practice through three compelling perspectives, each forming a distinct Title. The first examines interpretative methods in civil and criminal law, opening with Germany's Interessenjurisprudenz and its application in German courts, then turning to the French judicial approach to statutory interpretation, before concluding with an analysis of how Kazakhstan's Supreme Court handles normative interpretation.

The second perspective explores constitutional control mechanisms, tracing the French Constitutional Council's use of transitional interpretative reservations, the UK's constitutional evolution following the Human Rights Act, and the emergence of constitutional review within Kazakhstan's legal framework.

The third perspective investigates how domestic courts engage with international conventions, focusing on the Convention on the Contract for the International Carriage of Goods by Road (CMR) and examining judicial treatment of double taxation treaties in Kazakhstan and Russia.

Beyond my editorial role and writing the volume's introduction, I contributed two chapters devoted to my longstanding scholarly focus: German Interessenjurisprudenz. 

My first chapter articulates the mechanism and nuances of this sophisticated methodological doctrine, while the second offers concrete case law demonstrating Interessenjurisprudenz in action.

In this second chapter, I analyze a 1917 Reichsgericht decision concerning a contract favoring a third party with a mortis causa clause, alongside Heck's critique—Heck being the architect of Interessenjurisprudenz. I then examine the Reichsgericht's landmark 1923 decision and Heck's response, before turning to two related 1932 patent cases analyzed by Berlin attorney Norbert Sohn. These cases reveal how German patent offices had tacitly embraced Interessenjurisprudenz in their reasoning during the 30s, even without explicitly acknowledging the methodology.

The book is visible and can be bought at:https://www.amazon.fr/-/en/Remus-Titiriga/dp/3034355556

Legal vs. linguistical puralism : a misunderstood duality?

We live in a world with many legal systems and languages that interact continuously,  either in space or time.
Regarding the latter, many chronological interactions can be described as ‘legal transplant’ in between national laws. 
In this way, sometimes, entire legal structures are borrowed from a foreign country. 

That was the case for the Swiss Code of Obligations, which Turkey has adopted in the 30s. In the beginning, at least, the Turkish judges may have interpreted a concept by examining its meaning in Swiss law, which implied the use of comparison between Turkish and Swiss legal systems.

Another interesting case, this time of ‘synthetic’ transplant relates to the Civil Code of Ethiopia, which has been designed by great comparative scholar, René David,  who took into account rules or institutions from France, Italy, Greece, Switzerland, Israel, etc. The Ethiopian judge, willing to clarify, an obscure term in the new code may have used multiple comparison between his own system and the origin of each specific disposition.

But such ‘legal transplant’ may also occur between legal systems of a different kind. 
For example International Law may borrow concepts and rules from national law. 
The international legal scholars have played a role in this transposition since they were fed of their national legal culture. 

More recently, in many disputes of highly technical issues, the International Courts or the Arbitrators have resorted to long-established institutions from private national laws.

In the case of conventional International Law it was the language of treaties which seemed to provide the solution. Given the absence of a specific language of International Law, different from States' languages, the international rules were necessarily written ​​in one national language. Through these vehicular languages, the legal concepts and institutions of national laws passed to International Law.

In the last 70 years, the emergence of multilingual treaties has added complexity to the whole process. 

If only one language version of the Treaty's text is authentic (the other versions being just its official translations), the interpreter may use only that official version. Therefore the interpretation of multilingual legal texts was similar to the interpretation of a monolingual text.

More interesting was the second case, where all linguistic versions of a Treaty was equally authentic. In this case, the interpreter might have to use the multilingual systems of interpretation codified in article 33 of The 1969 Vienna Convention on the Law of Treaties.

The European Union had both situations.

If this brief presentation catches the attention of the reader, he may find a still evolving draft of Multijuralism and interpretative comparison by Judge of International Organizations: European Union case at http://ssrn.com/abstract=2342090.

The “Jurisprudence of Interests” from Germany - a forgotten ancestor to the balance of proportionality in legal reasoning

I have published an article about Interessenjurisprudenz in Germany (available at http://ssrn.com/abstract=2011479).
The paper focuses on a methodological approach based on the balance of proportionality (rationality of conflicting consideration), which is our time's dominant legal reasoning.
The significant thinkers responsible for creating it were Oliver Wendell Holmes, in the United States, René Demogue, in France, and Philipp von Heck, in Germany.
There were specific influences between Continental Europe and the United States, which seem to have been forgotten today. While the technique of conflicting considerations has an abundant European genealogy, it has received its most elaborate form in the United States between 1940 and 1970.
In the early fifties, the Constitutional Court of Germany adopted this technique too. More recently, the European authorities such as the European Court of Justice or the European Court of Human Rights took proportionality as a usual instrument.

The first part of the paper evaluates Interessenjurisprudenz within the great methodological debate (Methodenstreit) on the role of judge, which emerged at the beginning of the twentieth century in Germany. 

The ancient conceptual methodology (Begriffsjurisprudenz) came under siege from methodological orientations like the “Free Law School” and the “School of Objective Interpretation.” The most effective challenger and winner of the debate was the Interessenjurisprudenz, developed by Von Heck at Tübingen. 

The second part of the paper articulates the main contributions and the specific vision of Interessenjurisprudentz regarding the judge's method.

The last part briefly assesses this school's actual significance for German legal space and other legal cultures (Anglo-Saxon and French).