MEETING POINTS BETWEEN THE TRADITIONS OF ENGLISH–AMERICAN COMMON LAW AND CONTINENTAL-FRENCH CIVIL LAW. Developments and the experience of postmodernity in Canada

Csaba Varga
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Csaba Varga: DSc, University Professor, Director of the Institute for Legal Philosophy, Pazmany Pater Catholic University of Hungary.

Curentul Juridic, The Juridical Current, Le Courant Juridique, 2011, vol. 44, 24-47

Abstract: The scale of globalisation witnessed in Canada - as exemplified by the treatment of (1) the transformation of the role of precedents; (2) the multicultural and multifactoral search for common solution instead of law-based administration of justice; (3) dissolving definition by and conclusion from the law under the aegis of legal socio-positivism; accompanied with (4) prerogatives acquired by courts to a) unfold statutory provisions through principles while judicial actualisation, (b) constitutionalise issues, and c) impose the Supreme Court upon national community as its supreme moral authority - is spreading over the European Union as well. The point is to release law from positivated self-restriction by embedding it in informal cultural community through gradually eliminating the rest of substantivity from it, in order to treat it in an exclusively procedural sense in the final account. This involves change in the very concept and technicality of law, with consequences utterly unforeseeable. Globalisation does not necessarily result in, but is expected to secure, that “sustainable development” will be accompanied by “sustainable diversity”. Accordingly, great legal cultures and traditions what the human kind has evolved until now have to preserve their share in interaction and as source for future inspiration as well.

Keywords: precedents; laws; positivism; socio-positivism; principles; constitutionalisation (search for similar items in EconPapers)
JEL-codes: K10 (search for similar items in EconPapers)
Date: 2011
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