Table of Contents

Methods of Comparative Law

Methods of Comparative Law

Research Handbooks in Comparative Law series

Edited by Pier Giuseppe Monateri

Methods of Comparative Law brings to bear new thinking on topics including: the mutual relationship between space and law; the plot that structures legal narratives, identities and judicial interpretations; a strategic approach to legal decision making; and the inner potentialities of the ‘comparative law and economics’ approach to the field. Together, the contributors reassess the scientific understanding of comparative methodologies in the field of law in order to provide both critical insights into the traditional literature and an original overview of the most recent and purposive trends.

Chapter 13: Iudex Translator: The Reign of Finitude

Jeanne Gaakeer

Subjects: law - academic, comparative law


JOBNAME: Monateri PAGE: 1 SESS: 5 OUTPUT: Mon May 28 12:22:31 2012 13. Iudex translator: the reign of finitude Jeanne Gaakeer Beginning is not what one finds first: the point of departure must be reached, it must be won.1 1. PROLEGOMENA: IT ALL DEPENDS In Henry Fielding’s novel Joseph Andrews we find this conversation between two characters on the penalty for theft: ‘“Jesu!” said the squire, “would you commit two persons to Bridewell for a twig?” “Yes,” said the lawyer, “and with great lenity too; for if we had called it a young tree, they would have been both hanged”.’2 Steal a twig and you end up in jail, steal a tree and capital punishment is the result. But what makes a tree a tree and when is a tree merely a twig? Is there a fixed list on the diameters of trees classified according to species in order to facilitate the decision? Put differently, what elements with respect to the piece of wood the defendants stole made it fall under the concept of a twig?3 I am a judge. What idea and what image does this sentence conjure up before your mind’s eye? My guess is that it depends to a large extent on the legal system that you yourself are accustomed to. If you a jurist educated in the Anglo-American common law tradition your first impression will be different from that of, say, a French, a Dutch or a German jurist. Perhaps you...

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