Handbook 1996 : Faculty of Law (Volume 3 page 219)
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Optional Law subject.
Prerequisite: Torts and the Process of Law; History and Philosophy of Law.
Contact: 2 hours per week
Timetable: First semester
Objectives:
Students completing this course should: be aware of the Australian legal system in a broader perspective; be familiar with the concept of comparative law, its functions and aims, its method and history; understand the basic elements of a major legal family other than their own; appreciate the common ground between the (European) civil and common law families.
Content:
Introduction: the meaning, purpose and method of comparative law. The concept of legal families: with special attention to the Romano-Germanic legal family, including its historical foundation, and the Scandinavian legal family. Codes and codification: the process of codification on the Continent; factors and circumstances which induced and facilitated codification; differences between the 19th century European approach and contemporary codification movements in the common law world. Real-life examples of a civil code; analyse the drafting style, structure and contents of the French and German civil codes. The law-making process: who does what and why in the civil law world, especially in the Romano-Germanic family. Role of the legislature, the judiciary and the doctrine: their functions and inter-relationships. Comparative Contract Law: Case Study 1: to contrast the Australian and the European experiences with reference to terms with moral connotations (good faith, unconscionability etc). A general introduction to the law of contract in France and Germany, followed by a detailed analysis of the German approach to tackling the excesses of contractual freedom. Comparative Tort Law: Case Study II: another example of judicial creativity in the civil law world. The brevity of the five articles in the French Civil Code dealing with the law of tort is contrasted with the dynamic role played by the courts in introducing elements of strict liability in a Code-based tort system founded in fault. In Germany, strict liability has generally been introduced by special legislation not incorporated in the BGB. Comparative Court Proceedings: Case Study III: the Continental system for the administration of justice is generally said to be inquisitorial as opposed to the adversarial nature of the Anglo-American model. The meaning of these concepts will be examined as regards both civil and criminal procedures. Comparative Labour Law: Case Study IV: the purpose of this case study is to contrast different approaches to the resolution of industrial disputes. In Europe various institutionalised forms of worker participation exist. These reflect a cooperative approach to the resolution of industrial disputes. Theories of convergence and divergence: a re-examination of the purposes of comparative study; the possibility for an increased standardisation of the various national systems of law.
Assessment:
Either Research Paper 4,000 words (60 per cent) and Final Exam 11/2 hours (40 per cent); or Final Exam 3 hours (100 per cent).
Prescribed texts:
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Handbook 1996 : Faculty of Law (Volume 3 page 219)
Status: Official 1996 Date created: Oct 9 1995 Last modified: Oct 9 1995 Authorised by: Academic Registrar Email enquiries: Course_Information@registrar.unimelb.edu.au
Maintained by: Faculty of Law.
Copyright © University of Melbourne 1995,1996.