The Value of Communication Practices for Comparative Law: Exploring the Relationship Between Scotland and England

IF 1.4 2区 社会学 Q1 LAW Current Legal Problems Pub Date : 2019-10-30 DOI:10.1093/clp/cuz010
Alexandra Braun
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Abstract

This article explores the relationship between the Scottish and the English legal traditions through the lens of communication practices. ‘Communication practices’ are conceived of as the multiple ways in which legal traditions interact with one another by a combination of the circulation of legal ideas and the activities of legal actors. The article argues that greater attention should be paid in comparative legal literature to communication practices as they evolve over time and space, being especially mindful of the language used and the labels employed. By exploring different shapes of temporality and space, this article demonstrates the importance of looking beyond both discrete events and moments of transplantation, and the immediate geographical space. It also shows that the focus on language and what is explicitly said, but also on what is not said, generates insights both into the various techniques and practices involved in communication, as well as the factors that play a role. By examining concrete examples of communication involving both judges and legislatures, drawn from across different areas of law and different time periods, this article argues that contrary to the prevailing narrative, communication practices between Scotland and England are much richer and more dynamic than we tend to assume. Ultimately, the article questions the narrative and construction of the Scottish legal tradition, and of mixed legal systems more generally, as systems that primarily adopt ideas from abroad, rather than generating ideas capable of stimulating and shaping developments elsewhere.
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通信实践对比较法的价值——苏格兰与英格兰关系探析
本文从传播实践的角度探讨了苏格兰和英国法律传统之间的关系传播实践被认为是法律传统通过法律思想的传播和法律行为者的活动相互作用的多种方式。文章认为,在比较法律文献中,应更多地关注传播实践,因为它们随着时间和空间的推移而演变,尤其要注意所使用的语言和所使用的标签。通过探索时间和空间的不同形状,本文证明了超越离散事件和移植时刻以及直接地理空间的重要性。它还表明,对语言和明确表达的内容以及未表达的内容的关注,会对沟通中涉及的各种技术和实践以及发挥作用的因素产生深刻的见解。通过研究来自不同法律领域和不同时期的法官和立法机构的沟通具体例子,本文认为,与主流说法相反,苏格兰和英格兰之间的沟通实践比我们通常认为的要丰富得多,也更具活力。最终,这篇文章质疑了苏格兰法律传统的叙述和构建,以及更普遍的混合法律体系,因为这些体系主要采用国外的思想,而不是产生能够刺激和塑造其他地方发展的思想。
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来源期刊
CiteScore
1.20
自引率
0.00%
发文量
7
期刊介绍: The lectures are public, delivered on a weekly basis and chaired by members of the judiciary. CLP features scholarly articles that offer a critical analysis of important current legal issues. It covers all areas of legal scholarship and features a wide range of methodological approaches to law.
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