Mentoring Comparative Lawyers: Methods, Times, and Places

The chapter focuses on a field that has been studied thoroughly by Bussani, that is, secured transactions law. The contribution analyzes in particular the many actors and initiatives that in the last decades have pursued the goal of worldwide harmonization of secured transaction laws, scrutinizing the achievements and the limits of these experiments. In light of such results, the chapter also outlines the methodological contribution that comparative law (à la Bussani) can offer to legal change in the sector of secured transactions law.

This chapter aims to contribute to the understanding of the operational dimensions of Western property-law. In particular, we will try to analyze the multilayered nature of Western property law from the perspective outlined by legal pluralism, as informed by Bussani’s doctrine on legal stratification. Bussani’s layered approach will enable us to realize how many categorizations and assumptions that shape the current state model of property are only façades if compared with everyday legal reality. In order to illustrate the wide variety of rules and remedies that define Western property regimes, the analysis will consider some concrete examples related to urban and rural property, as well as to intellectual and cultural property. The concluding remarks will highlight how property should be seen as a multilayered and multi-centric body of law(s), where different layers of regulations and adjudication devices coexist and interact with each other.

The chapter delves upon some recurring themes underlying Bussani’s scholarship—from his pluralistic view of legal sources, to his emphasis on people’s identity and affiliations as determinants of legal and disputing behavior—as far as the law of obligations in the West is concerned. In this light, the chapter scrutinizes the many ways in which people’s affiliations shape the legal contexts in which they live in, including the legal layers governing their obligations and the life cycle of their contractual and tortious claims. The aim is to provide a glimpse of the many paths of understanding that Bussani’s teachings open up for the study of Western contract and tort law.

This chapter aims at addressing the role of informal contract law in the current Chinese society; its main focus is to provide an analysis of the role of “guanxi” (so called “relations”) in the phase of negotiations of a “B2B contract” involving a foreign company on one side and a Chinese company on the other. After an overview of the main characteristics of guanxi (Sect. 1), this contribution continues with an examination of the Chinese contracting mechanism using the “lens” of law and society scholarship (Sect. 2); it then provides some recent trends noticed by business players acting within the Chinese market. Section 3 is focused on what happens when “things go wrong” and guanxi is no longer useful as a tool to resolve or “amicably consult” (using a Sino-English expression) a potential claim or a potential dispute arising between the contracting parties. The conclusions drawn could be used as a “trans-cultural” instrument to analyze the current Chinese market and its possible future trends.

Much ink has already been spilled on the Chinese tort law system, focusing in particular on its development, formulation, and transplants from other legal systems (particularly from German and French civil law). Very few, however, addressed the relation between the statutory reform and Chinese unofficial law. Resting upon the assumption that law is institutional and cannot be alienated from its cultural contexts, this chapter aims to describe the multi-layered framework of the Chinese tort law system in light of Bussani’s legal stratification doctrine.

When science comes in contact with the law, a variety of complex issues arise. Owing to the increasing number of legal questions which can (or even have to) be resolved by resorting to scientific knowledge, in recent years the challenges posed by the use of scientific evidence within civil proceedings have become a hot-point in legal debates across both common law and civil law jurisdictions alike. Judges, academics, and legislators have dealt with the issue of scientific evidence in multifarious ways on both sides of the Atlantic Ocean. For this reason, the aim of the chapter is to analyze how the US and continental European legal cultures have shaped their approach to scientific evidence, as well as how scientific evidence has influenced the dynamics of civil proceedings in the US and continental Europe. The comparative overview of these developments will allow us to test whether the approaches to scientific evidence in the two legal traditions are really as far apart as one might think at a first glance, or whether on the contrary they have much in common, both in terms of perspectives and outcomes.

This chapter, building on previous research, investigates the transnational essence of regulatory law in the life sciences field as a result of the global circulation of regulatory models. It further argues that comparative law offers powerful lenses through which such form of transnational law can be fruitfully studied by academics and practitioners alike.

The chapter delves into the self-enforced set of norms devised by the fashion community to regulate industry practices and deal with protection of their intellectual property rights. In this light, the contribution investigates how official intellectual property law and informal norms interact with each other, and highlights how a pluralistic approach to this subject matter can be beneficial in assessing innovative solutions.

The traditional literature on comparative law has never provided a comprehensive methodology for a comparative study of financial law. Although some research in this field has been made to quantify and qualify differences and similarities of national regulatory frameworks around the world, few studies have been devoted to exploring what lies behind the formal text of financial rules, i.e. the interplay of the “legal formants” that influence the construction of national and international financial laws and systems. The difficulty of building-up a scholarly methodology in this field is due to a variety of reasons, including the entangled nature of financial rules along with the mainstream opinion of economic sciences playing a major shaping role. But outlining a comprehensive methodology for comparative financial law studies appears today as compulsory. The multifaceted structure of financial markets across a multi-jurisdictional dimension requires deeper insights into how formal and informal rules set the landscape of the financial legal order. The comprehension of this dynamic interplay is in fact instrumental in examining how economic and legal doctrines, social sciences, political ideologies, and cultural frameworks originate and influence the evolution of international finance around the world. Drawing extensively from the scholarship of Mauro Bussani, this chapter seeks to fill this gap by proposing a theory of the origin of financial law. Starting from the analysis of risk and uncertainty as the main rationales of the financial legal framework, we discuss the legal layers underpinning its construction. Formal and informal institutions are equally shapers of financial orders while most of the financial rules originate and live ‘in the shadows’. Against this backdrop, we seek to shed some light upon the actual role played by technocrats and policymaking agencies in implementing these dynamic formants in modern societies. In doing so, we argue that financial law is just a by-product of “the very cultural framework in which it is embedded” while the evolution of global financial markets is deeply influenced by the geopolitical supremacy of the dominant cultures.

Over the last few decades, several international actors have actively engaged in developing indicators for measuring states’ and other actors’ commitment to international human rights (HRs) norms. Indicators constitute the evidence of the state of events, activities or outcomes relating to HRs standards. According to mainstream views, HRs indicators strengthen monitoreds’ accountability by translating complex phenomena into easily intelligible data. Common classifications understand such technologies of gauging through standard taxonomies, such as ‘structural’, ‘process’, ‘outcome’, ‘qualitative’ and ‘quantitative’ indicators. Against this framework, this chapter suggests an alternative, tripartite account of the assumptions and consequences underlying the use of HRs metrics. Mauro Bussani’s teachings and perspectives on the interactions between national and supranational legal orders guide the investigation through a comparative and cross-cutting analysis of the intricacies of HRs measurement. First, as instruments of (1) knowledge, the reliability of indicators depends on their responsiveness to the scrutinised context. Secondly, as tools of (2) control, there is little doubt that indicators can be an effective system of auditing. Yet the overemphasis on the supposedly ‘neutral’ and ‘objective’ language of quantification entails many risks, including the empowerment of the epistemic communities designing them. But indicators may also be tools of (3) power: many indicators become influential in the public debate, affect how people think and behave, as well as shape the agendas of domestic and global institutions. The conclusion enshrines a forward-looking approach as to how to overcome existing obstacles by improving stake-holders’ participation within and transparency of the preparation of indicators.

In March 2017, almost seventeen years after the adoption of Directive 2000/78/EC establishing the general framework for equal treatment in employment and occupation, the Court of Justice of the European Union delivered its two first and long-awaited judgments concerning the manifestation of beliefs in the workplace in the cases Achbita (Case C-157/15) and Bougnaoui (Case C-188/15). Both cases concern Muslim women employees in private companies who had been dismissed for wearing a headscarf at work. The purpose of this chapter is to explore from a comparative perspective how protection against discrimination on the grounds of religion and freedom of religion is granted in the workplace, and how protection is expanded or restricted in light of concepts such as ‘neutrality’ or ‘undue hardship’. The focus of the chapter is the private workplace, but references (where relevant) are made to rules governing the public sector. After a short introduction on the international legal framework, the chapter examines how freedom of religion and protection against discrimination are regulated in Europe under the European Convention on Human Rights and in EU law. The second part sheds light on the USA and Canada’s safeguards against religious discrimination in labour relations, analysing the scope of protection and its limits. The contribution concludes with a comparison of the systems examined in order to establish whether and to what extent similar tensions can be identified and whether a convergence of solutions is suitable and possible in the future.

Democracy has become a concept readily identifiable with the United Nations (UN) in relatively recent times. As in the case of other international organizations, it was only at the end of the Cold War that democracy-promotion became part of the UN-driven global activities and distinctive agenda. The UN institutional and legal framework remained, instead, fundamentally unaffected by the post 1989 events, creating a problematic discrepancy between the unchanged organization’s founding values, membership requirements, and general structures, and its progressively more intense pro-democratic global projection. This chapter argues that the UN adopted an essentially instrumental view of democracy in order to remedy this discrepancy. This undisclosed choice aimed to present democracy mostly as a tool for pursuing the organization’s fundamental values and institutional goals of promoting peace, human rights and development. These contemporary dimensions of the UN action raise nonetheless a number of questions: to what extent should the instrumental approach be considered legitimate and effective? Are its underlying assumptions, particularly the existence of causal relationships linking democracy to the UN Charter’s goals so uncontroversial, both in the academic literature and in the global actors’ general experience? The chapter firstly analyzes the approach of the UN towards democracy before and after 1989. It then focuses on the view of democracy both as an autonomous and “universal value” to be promoted in itself (democracy as an ‘end’) and on the view of democracy as an instrument for pursuing UN institutional goals (democracy as a ‘means’). The three basic axioms supporting this perspective—democracy for peace, democracy for human rights, and democracy for development—will be analyzed from both a theoretical and empirical point of view. In the conclusion attention will be payed to the “importance of being earnest” for the UN, drawing on comparative law experiences and lessons learned.

This chapter aims at identifying the epistemological role held by comparative law in relation to climate change. In fact, legal scholarship has traditionally channeled its efforts on the climate legal regimes at the international and, more recently, local level. Surprisingly, little attention has been given to a more comprehensive comparative appraisal which shall consider, among others, the political, cultural and historical elements that come into play with regard to the development of national and supra-national climate laws and policies. Drawing lessons from Mauro Bussani’s reflections on global rule-making processes and comparative tort law, the chapter will hopefully explain why and how comparative law should deploy its unmatchable power as a cognitive instrument, both in theory and in practice, to provide a deeper understanding of the legal phenomena embedded in the climate change arena.