More Constitutional Dimensions of Contract Law, 2019
This chapter discusses the constitutionalisation of Contract law in Finland and makes frequent co... more This chapter discusses the constitutionalisation of Contract law in Finland and makes frequent comparative references to the other Nordic systems. It aims to describe how Constitutional law has gradually started to influence Contract law. Moreover, the analysis seeks to predict some key future developments concerning Constitutional Contract law in Finland. This chapter illustrates how relevant constitutional actors consider these two areas of law and how these actors may sometimes collide because of key doctrines and the constitutional structure. It is concluded that references to Constitutional and Human rights law are not going to replace traditional Contract law argumentation. In most cases, nevertheless, Constitutional and Human rights law offer a useful means to clarify and modify the arguments used in traditional Contract law reasoning. The authors expect growing significance and legal relevance of the relationship between Constitutional law and Contract law.
their stated aims; yet, I will indulge myself by noting that I frequently wanted to know not only... more their stated aims; yet, I will indulge myself by noting that I frequently wanted to know not only about the mechanisms of credit, which are presented in detail, but also about why people needed it. It is true that in a fascinating and entertaining example, Antonov tells us about the officer who needed to borrow from his own servants to pay for his uniform. However, there were hundreds and thousands of small-scale entrepreneurs throughout Russia who might or might not have found a source of microcredit to purchase supplies needed for next year’s batch of rakes and hoes, for example. This link between borrowing and enterprise (in some cases on a subsistence level) could be a valuable question to develop further. Bankrupts and Usurers is an important study that helps us understand how debt and property worked in Imperial Russia, but also goes further by using this understanding to re-create the social universe of Russia’s cities and provinces. It joins such exciting works as Alexander Martin’s Enlightened Metropolis (2014) and Jane Burbank’s Russian Peasants Go to Court (2004) in promoting what is by now an established and highly productive direction in the recent historiography of Russia: the reconstruction of society and the law with an eye to “what was there” rather than what was not, and re-contextualizing Imperial Russia in the European sphere on this firm basis.
International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique, 2016
Legal texts are in the focus of both lawyers and translators. This paper discusses the binary opp... more Legal texts are in the focus of both lawyers and translators. This paper discusses the binary opposition of these two views especially in the light of contract law. There is one crucial epistemic difference between the point of view of the translator and the lawyer when it comes to the interpretation of legal texts. In the translator’s view legal text is traditionally conceived as static as to its nature; something that already exists in the form of text. Traditionally, the translator is interested in the text itself as it was written down in a document, i.e. the translator needs to go back to the frozen moment when a legal document was constructed and finalised. The lawyer, in contrast, is very much interested not only in the text of the legal document but also in the contextual surroundings of the text. In fact, for legal interpretation, sometimes the key-elements for the interpretation come from outside of the text itself. This paper concludes that legal translation is in many cases closer to transcreation than it is to traditionally understood translation.
Maastricht Journal of European and Comparative Law, 2009
There is something tricky about the gifts. This seems to be especially true with legal Anschauung... more There is something tricky about the gifts. This seems to be especially true with legal Anschauungen and the practice of gift giving. On the one hand, gifts seem to be proof of the better side of mankind, that is our altruistic ability to do good without strings attached. On the other hand, gifts seem to create social obligations difficult to grasp yet very real and many times completely void of legal considerations. Almost everyone has had some personal experience of gifts and the resulting complexities. Towards the end of 1994 this author was feeling rather desperate as the public defence of his doctoral thesis in the theory of public law was approaching. Surprisingly though, it was not anxiety over the public defence although this would consist of several hours filled with intense grilling by two outstanding law professors. Somewhat ignorantly, I assumed that I could survive that part rather well or at least satisfactorily. No, the reason for my unease was the part that was supposed to come after the official defence. I am speaking of a semiobligatory formal party or celebration which virtually every successful doctoral student in Finland must offer shortly after the public defence.1
ABSTRACT This paper considers the role of comparative law in contemporary legal education. The di... more ABSTRACT This paper considers the role of comparative law in contemporary legal education. The discussion builds on an idea according to which it is helpful to make a distinction between educating lawyers and doing comparative research. It is suggested that we should pay more attention to comparative law pedagogics in today’s world, where law graduates must be prepared for working in a global context. Whereas in academic comparative research the goal is to reach a deep cultural understanding of foreign law, in legal education the goal is to learn to “think like a lawyer”. It is argued that by means of teaching foreign law, it is possible to transfer the focus of legal learning away from detailed rules and instead concentrate on general principles. Comparative law-based material and teaching ought to be regarded as a stimulus that sets the learning process into motion. Moreover, it is claimed that more significance ought to be given to the transnational dimensions of law as part of legal education within all branches of law.
The use of the functional method when comparing legal systems remains debated, even to such an ex... more The use of the functional method when comparing legal systems remains debated, even to such an extent that some authors have discarded functionalism as a fruitful method. The two authors of this paper ask what we can still expect from functionalism. While Husa presents an argument in favor of rule-of-thumb functionalism, Smits claims that functionalism has a bright future if it is reshaped. The authors present their arguments by way of a dialogue that was written for the ‘Legal debates’-section of the Maastricht Journal of European and Comparative Law.
Even while interdisciplinary approach and comparative law are conceived as a perfect match there ... more Even while interdisciplinary approach and comparative law are conceived as a perfect match there are also certain risks. Lawyers are not normally competent sociologists, linguists, economists, anthropologists, historians etc. When a lawyer steps outside of the boundaries of law, the risk of misunderstanding concepts or methods taken from other fields may materialize. However, many of the most pressing problems we see at the moment arise from the reverse situation; that of non-lawyers venturing outside their own specialist field into comparative law. This article looks into just two scenarios where the interdisciplinary approach seems, at first glance, to be an almost perfect methodological solution but more detailed scrutiny reveals something different. The first scenario concerns macro-comparative law and the so-called ‘legal origins’ theory, and the second concerns micro-comparative law and legal linguistics.
... This, in turn, places some of Menski's theoretical ideas and conclusions on shaky ground... more ... This, in turn, places some of Menski's theoretical ideas and conclusions on shaky ground. ... the very nature of law without a proof ie inherent and self-evident empirical prerequisite of ... of the intellectual origins of German legal thought and its connection to the development of BGB ...
More Constitutional Dimensions of Contract Law, 2019
This chapter discusses the constitutionalisation of Contract law in Finland and makes frequent co... more This chapter discusses the constitutionalisation of Contract law in Finland and makes frequent comparative references to the other Nordic systems. It aims to describe how Constitutional law has gradually started to influence Contract law. Moreover, the analysis seeks to predict some key future developments concerning Constitutional Contract law in Finland. This chapter illustrates how relevant constitutional actors consider these two areas of law and how these actors may sometimes collide because of key doctrines and the constitutional structure. It is concluded that references to Constitutional and Human rights law are not going to replace traditional Contract law argumentation. In most cases, nevertheless, Constitutional and Human rights law offer a useful means to clarify and modify the arguments used in traditional Contract law reasoning. The authors expect growing significance and legal relevance of the relationship between Constitutional law and Contract law.
their stated aims; yet, I will indulge myself by noting that I frequently wanted to know not only... more their stated aims; yet, I will indulge myself by noting that I frequently wanted to know not only about the mechanisms of credit, which are presented in detail, but also about why people needed it. It is true that in a fascinating and entertaining example, Antonov tells us about the officer who needed to borrow from his own servants to pay for his uniform. However, there were hundreds and thousands of small-scale entrepreneurs throughout Russia who might or might not have found a source of microcredit to purchase supplies needed for next year’s batch of rakes and hoes, for example. This link between borrowing and enterprise (in some cases on a subsistence level) could be a valuable question to develop further. Bankrupts and Usurers is an important study that helps us understand how debt and property worked in Imperial Russia, but also goes further by using this understanding to re-create the social universe of Russia’s cities and provinces. It joins such exciting works as Alexander Martin’s Enlightened Metropolis (2014) and Jane Burbank’s Russian Peasants Go to Court (2004) in promoting what is by now an established and highly productive direction in the recent historiography of Russia: the reconstruction of society and the law with an eye to “what was there” rather than what was not, and re-contextualizing Imperial Russia in the European sphere on this firm basis.
International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique, 2016
Legal texts are in the focus of both lawyers and translators. This paper discusses the binary opp... more Legal texts are in the focus of both lawyers and translators. This paper discusses the binary opposition of these two views especially in the light of contract law. There is one crucial epistemic difference between the point of view of the translator and the lawyer when it comes to the interpretation of legal texts. In the translator’s view legal text is traditionally conceived as static as to its nature; something that already exists in the form of text. Traditionally, the translator is interested in the text itself as it was written down in a document, i.e. the translator needs to go back to the frozen moment when a legal document was constructed and finalised. The lawyer, in contrast, is very much interested not only in the text of the legal document but also in the contextual surroundings of the text. In fact, for legal interpretation, sometimes the key-elements for the interpretation come from outside of the text itself. This paper concludes that legal translation is in many cases closer to transcreation than it is to traditionally understood translation.
Maastricht Journal of European and Comparative Law, 2009
There is something tricky about the gifts. This seems to be especially true with legal Anschauung... more There is something tricky about the gifts. This seems to be especially true with legal Anschauungen and the practice of gift giving. On the one hand, gifts seem to be proof of the better side of mankind, that is our altruistic ability to do good without strings attached. On the other hand, gifts seem to create social obligations difficult to grasp yet very real and many times completely void of legal considerations. Almost everyone has had some personal experience of gifts and the resulting complexities. Towards the end of 1994 this author was feeling rather desperate as the public defence of his doctoral thesis in the theory of public law was approaching. Surprisingly though, it was not anxiety over the public defence although this would consist of several hours filled with intense grilling by two outstanding law professors. Somewhat ignorantly, I assumed that I could survive that part rather well or at least satisfactorily. No, the reason for my unease was the part that was supposed to come after the official defence. I am speaking of a semiobligatory formal party or celebration which virtually every successful doctoral student in Finland must offer shortly after the public defence.1
ABSTRACT This paper considers the role of comparative law in contemporary legal education. The di... more ABSTRACT This paper considers the role of comparative law in contemporary legal education. The discussion builds on an idea according to which it is helpful to make a distinction between educating lawyers and doing comparative research. It is suggested that we should pay more attention to comparative law pedagogics in today’s world, where law graduates must be prepared for working in a global context. Whereas in academic comparative research the goal is to reach a deep cultural understanding of foreign law, in legal education the goal is to learn to “think like a lawyer”. It is argued that by means of teaching foreign law, it is possible to transfer the focus of legal learning away from detailed rules and instead concentrate on general principles. Comparative law-based material and teaching ought to be regarded as a stimulus that sets the learning process into motion. Moreover, it is claimed that more significance ought to be given to the transnational dimensions of law as part of legal education within all branches of law.
The use of the functional method when comparing legal systems remains debated, even to such an ex... more The use of the functional method when comparing legal systems remains debated, even to such an extent that some authors have discarded functionalism as a fruitful method. The two authors of this paper ask what we can still expect from functionalism. While Husa presents an argument in favor of rule-of-thumb functionalism, Smits claims that functionalism has a bright future if it is reshaped. The authors present their arguments by way of a dialogue that was written for the ‘Legal debates’-section of the Maastricht Journal of European and Comparative Law.
Even while interdisciplinary approach and comparative law are conceived as a perfect match there ... more Even while interdisciplinary approach and comparative law are conceived as a perfect match there are also certain risks. Lawyers are not normally competent sociologists, linguists, economists, anthropologists, historians etc. When a lawyer steps outside of the boundaries of law, the risk of misunderstanding concepts or methods taken from other fields may materialize. However, many of the most pressing problems we see at the moment arise from the reverse situation; that of non-lawyers venturing outside their own specialist field into comparative law. This article looks into just two scenarios where the interdisciplinary approach seems, at first glance, to be an almost perfect methodological solution but more detailed scrutiny reveals something different. The first scenario concerns macro-comparative law and the so-called ‘legal origins’ theory, and the second concerns micro-comparative law and legal linguistics.
... This, in turn, places some of Menski's theoretical ideas and conclusions on shaky ground... more ... This, in turn, places some of Menski's theoretical ideas and conclusions on shaky ground. ... the very nature of law without a proof ie inherent and self-evident empirical prerequisite of ... of the intellectual origins of German legal thought and its connection to the development of BGB ...
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Papers by Jaakko Husa