Dr Antonios Platsas

The discipline of law has to rediscover its original universal educational configuration. The subject of law with its roots lost in the passage of time, from the study of justice, fairness and equity in Greek philosophy to Gaius’s Institutes in the second Century AD and the Institutes of the Justinian codification in the sixth Century AD, is one that was once deemed rather universal in its educational configuration and philosophical outlook. The revival of the study of law otherwise occurred in Bologna in the eleventh Century AD and the subject grew significantly post the 1648 Westphalian paradigm, which marked a new era for the discipline of law altogether: the rise of the modern nation state and, by extension, the legal codifications movement. The paper, taking into account all these developments, posits that the subject of law was once international in and of itself; so were many of its educational aspects. It further posits that law as a discipline has to rediscover its traditional spirit of universality in furtherance of a more cosmopolitan educational paradigm. The paper concludes with an overview of its main findings.

The paper advocates the idea that Kafka has had a magnificent imprint not only on modern law and the arts but also on society and the way the modern world expects the democratic legitimisation of institutions. It does so by first focusing on a major work produced by Kafka, The Castle. Kafka has effectively offered us in The Castle his perception of a more democratic world that should not be trampled underfoot by technocrats, pundits and administrators. In his image of the world in The Castle, Kafka is relentless: not only does he offer us an allegory of a faceless and remote bureaucracy that acts in irrational, inexplicable and mysterious ways, but he also calls the citizens, the recipients of this bureaucracy’s diktats and commands, villagers, clearly pinpointing to a highly dysfunctional and unequal relationship between unchecked technocrats and bureaucrats and a lost and weak demos at the mercy of the former. Thus, on the occasion of the 100th anniversary of The Trial, the paper offers a re-assessment of another seminal work produced by Kafka, The Castle, attempting to draw certain parallels with The Trial, both of these works effectively describing perfect legal and political dystopias, wherein individuals become oppressed and suffer from the incomprehensible acts of legal systems and administrations. In a similar way to The Trial, the Kafkaesque world found in The Castle is often one of surreal and obscure meanings, settings and realities. It is in The Castle, and by extension in The Trial, however, that one appreciates the great democratic spirit that Kafka was. In his allegory of the people in the castle (the bureaucrats) and the people living out of the castle, the villagers (the citizens), one realises Kafka’s dualist thinking: the wish for civil services and administrations to be democratically legitimised and exist for serving the citizen, and the warning as to how administrations can turn into faceless, remote and broken institutions and bureaucracies that promote procedure and system by disregarding and neglecting substance, man and society. In the Kafkaesque perception of the world, the paper posits, it is institutions and legal systems that serve society and the citizen. Thus, the paper explores the very humanist and anthropocentric essence of Kafka’s thesis, a thesis that clearly favours, albeit by implication, democratic, transparent, open and legitimised institutions and societies. Ultimately, much of what a good administration in the modern democratic world can be is one that ought to be configured in a way that operates a contrario to Kafka’s Castle, while modern legal systems ought to be configured in ways that oppose the ways of the legal system which one observes in The Trial. The paper proceeds with assessing the character of these two seminal works and the great democratic essence of Kafka’s personality. It concludes with its main findings, emphasising the need for the re-appreciation of Kafka’s work in the face of a world that expects openness, transparency and the democratic legitimisation of institutions as conditions precedent for the societies of the future.

The concept of convergence of legal systems stands for a leading idea in the modern discipline of law. Whereas one could neo-romantically still perceive law as a Landesjurisprudenz, a sort of provincial and domestic study, it would be fair to maintain that, after the end of the Second World War, the concept of legal convergence of systems has become of paramount importance in the national, the regional and the international sphere. The discipline of law has, thus, effectively departed from its narrower and more nation-oriented roots post the 1648 Westphalian paradigm, albeit not always and not necessarily. Concurrently, the phenomenon of convergence of legal systems has had wide-ranging implications in the political, legal and economic life of the world’s modern republics. Even systems which would resist convergence projects initially, would eventually subscribe to such projects (contagion theory of legal systems). The magnificence of such a leading idea as the concept of legal convergence arises from no other reason than the fact that convergence is a multifaceted, multimodal and flexible phenomenon. Convergence of legal systems can, therefore, occur either through centralised or decentralised modes (top-down and bottom-up legal convergence). Close to this, one would be reminded that a thing is beautiful, in that it partakes in beauty itself. And a system tends to benefit from a convergence circle, in that convergence is something that tends to come with benefits for systems that partake in such a circle. Indeed, in its ideal form, the concept of legal convergence can be either an organic self-perfecting, self-evolving reality or a constantly updated centrally designed project. The Platonic ideal of the one effectively amounts to nothing else but a yearning for simplicity, as Merryman put it, our world frequently presenting us with a rather chaotic, disorderly and perplexing state of affairs in so many aspects of human existence. Law, traditionally, despite its formalist and modernist credentials, has added to this rather chaotic world with its nationalist and inward-looking deviations. Almost any of Kafka’s works would readily point to this direction. The chapter recognises that there were times when law would be a synonym to the nation (and vice versa); yet, the new world legal and economic architecture that arose out of the ashes of a bloodstained and torn humanity more than seventy years ago was actually engineered on the premises of international legal and political cooperation. Finally, against the background of the economic and financial crisis, that is with us for more than a decade now, this contribution explores the essence of the idea of legal convergence by recognising amongst other things the relation of legal convergence to economic convergence in the industrial world. It further attempts to assess the feasibility of genuine legal convergence projects by referring to leading examples of legal harmonisation in Europe and the world and by exploring the theory of legal transplants, the theory that acts as the cornerstone of the modern legal convergence thesis. The chapter concludes on the need for the greater democratic legitimacy of convergence projects, especially when it comes to ones that would not be the result of organic decentralised growth but of central design.

This chapter critically assesses the environment of economic hyperglobalisation, as a more robust and vigorous form of globalisation, against recent attempts to raise and establish protectionist barriers, measures and regimes in Asia, Europe, and the Americas. In so doing, it considers certain WTO disputes and related matter and examines relevant areas of contestation in contemporary international economic law and trade. The paper proceeds on the basis that the hyperglobalisation phenomenon directly and ab initio opposes forms of protectionism. Methodologically, this is a contribution that evaluates and assesses, amongst others, comparative perspectives and approaches from around the world in furtherance of its analytical goals and conclusions. Furthermore, the contribution assesses whether the new world order of hyperglobalisation is practically one that amounts to a close-to-a-wholly-integrated world trade regime, despite certain exceptions to the contrary. Equally, the chapter recognises that the new protectionist regimes, which are constantly created and which can take a variety of forms, may be ones that cause the integration of international economic law to be adversely affected. Acknowledgement is also made to the fact that the geopolitical factor can negatively impact the rigour of the new world order of interconnected economics. The contribution thereafter assesses, on an indicative basis, protectionist measures, policies, and regimes by examining their legality in the face of the new world order of economic hyperglobalisation. It acknowledges the ever-increasing sophistication of the protectionist regimes around the world, especially the ones from recent decades, by otherwise categorising them into overt and covert ones. Moreover, the paper reinforces the view that the world’s strongest economies continue to engage in protectionist regulatory regimes and practices on a considerable scale, often by significantly affecting the well-being of international trade and the benefits that arise from it, even though the aspiration for free world trade is now one that the overwhelming majority of States embrace and recognise. Finally, in addition to assessing recent developments in the area of its investigation, the chapter proposes a number of ways in relation to the strengthening and the reinvigoration of central WTO principles. It does so by focusing on a number of WTO principles, namely the principle of trade without discrimination, the principle of predictability and the principle of fair competition. The paper concludes with its key findings.

The Israeli legal system is unique in that it straddles the two otherwise opposing worlds of tradition and innovation. This creates an enigma for the comparatist, making the exploration of this system an onerous and challenging task. The author wishes to maintain that the system in question is highly innovative and ascribes this quality to the proactive character of the Israeli Supreme Court, whose activism has had a major impact on the character of the domestic system as a whole. While the author explores the reasons why this has been the case, one of his main concerns in this paper will be to examine the innovative character of the Israeli Supreme Court per se, in comparison with equivalent courts in other parts of the world. In addition the author will seek to establish inter alia the character of the Israeli legal system by focusing on the three different elements that co-exist in the Israeli socio-legal structure (the Jewish element vis-à-vis the Arab element; the Liberal element vis-à-vis the Orthodox element within the Jewish community; and the Civilian element vis-à-vis the Common law element). The author wishes to posit that the amalgamation of different legal and cultural traditions in Israel created a sui generis state of affairs for the legal system as a whole. This results in an overall systemic-methodological amalgamation which does not occur elsewhere in the world. The article concludes that the enigmatic and innovative characteristics of the Israeli legal system derive from the novel way in which the legal mix has occurred in this system (as opposed to the ingredients of the elements in the mix). In this respect, Israel may have contributed much to the reinvigoration of the modern comparative law agenda, and it may continue to do so in the future, as the system is not one of legal stasis (a mixed system) but one of legal kinesis (a mixing system).

This paper examines the relationship between ideology in law and social ontology. The analysis proceeds on the basis that law’s ideological existence may be signified by the sociologically ontological. The paper negotiates three (3) questions: first, whether there should be a link between ideology and legal doctrine; second, whether the social ought to characterise such ideology and, third, what should be the actual input of ontology in the ideology of law. Finally, the paper is concerned with the idea as to whether local differentiation of social ontologies justifies legislatures and electorates, when it comes to the latter infiltrating domestic law with their own ideology.

This book offers a novel perspective on the leading concept of harmonisation, advocating the mutual benefits and practical utility of harmonised law. Theoretical models and factors for harmonisation are explored in detail. Antonios E. Platsas acknowledges a range of additional factors and presents harmonisation as a widely applicable and useful theory.

The article explores the Platonic roots and the Aristotelian essence of such a leading academic subject as comparative law. Comparative law is not a creation of the 20th century, even though modern comparative law, as we know it, has indeed matured and developed in the 20th century. The journey of comparative law commences with Plato and Aristotle, even though it was Aristotle that seems to have placed comparative law on its academic rails through his extensive, systematic, and rigorous comparative exploration of constitutions. Nevertheless, Plato must have inspired his best student, Aristotle, in the examination of comparative legal matter. Equally, the mastermind and the driving spirit behind the subject of comparative law, as it came to flourish in modernity, seems to have been Aristotle. Generations of comparative lawyers from Lambert and Salleiles to Zweigert, Kötz, and David effectively cultivated a subject which is quintessentially Aristotelian, despite the subject’s apparent Platonic roots. This exposition proves, substantiates, and analyses the Aristotelian spirit of our subject, a subject which has inspired the discipline of law, Academia, and the world, the article taking a balanced approach between the subject’s Platonic roots and the subject’s Aristotelian essence.

This contribution offers a critical analytical overview of the main theories of knowledge in addition to exploring practices as to how knowledge can be achieved. Such theories as the cognitive, the constructivist, the behaviourist, the humanist and the connectivist theory are explored in this chapter. Additionally, the paper juxtaposes learning practices in the theoretical disciplines with those in the positivist disciplines. In this respect, law as a discipline is compared, for instance, with other theoretical disciplines but also with positivist disciplines. Furthermore, considering the interdisciplinary nature of this contribution, the author proceeds with exploring key findings and ideas in the area from such disciplines as philosophy, psychology, law, and pedagogy. When it comes to the practical ways by which knowledge can be attained, the deployment of reason (Plato), the senses (Aristotle), ideas of the intellect (Descartes), conditioning (Pavlov), experience (Russell, Polanyi & Kolb), association (modern discipline of psychology), kinaesthesia and play (ludo and experimental pedagogy) are all given consideration. The chapter concludes with the idea that knowledge, indeed knowledge in law, can be attained through multiple and diverse practices, whereas the different theories of epistemology may be explanatory of certain modes and patterns of knowledge as opposed to them acting as grand theories that explain the totality of angles and facets of knowledge. The paper advocates the thesis that knowledge per se is not a relative matter but the ways by which different individuals attain knowledge may often be relative to learner, the pedagogue’s key task being the deployment of multiple and diverse approaches which will cater and cover for the needs of as many learners as possible. In this respect, the chapter promotes the idea that the quest for universals in epistemology is one that would be achieved through the due recognition of the particular and the relative in didactic operations.

This chapter explores the distinction between constitutional values and principles by deploying axiological, legal, moral, ethical, and semantic arguments. It compares constitutional law perspectives and examples from Europe and from around the world. The chapter examines the essence of values and principles in modern constitutional law discourses and their significance in constitutional legal practice. While lawyers may use the two terms interchangeably, it is argued that they are different concepts and should not necessarily be used synonymously. The chapter proposes that constitutional values, in all their abstraction, may be further recognised and crystallised through constitutional principles and constitutional rights in a given constitutional order. Conversely, principles tend to operate beneath values but are actually supportive of values. The chapter argues that from the analytical and the practical point of view, a more hierarchical and, indeed, a more rational ordering of concepts, ought to be adopted in the modern subject of constitutional law, as this would benefit both the subject and practitioners. The chapter thus contends that constitutional values, where they are recognised in a constitutional law order, ought to represent and act as the highest axioms therein, followed by principles and, interestingly, by rights, which tend to be less abstract.

This contribution is about the preparation of Greece’s Civil Code, which was completed in 1940 and came into effect in 1946. This code governs the majority of civil law matters in Greece to date. One of the Greek Civil Code’s major achievements, which this contribution explores in detail, has been the fact that it unified the four Interwar civil law regimes of Greece into one. For legal and historical reasons, it took modern Greeks more than 100 years to unify their country in civil law matters, after the liberation of the country from Ottoman rule. Beyond this, the Greek Civil Code is one of the lesser-known examples of comparative legal research in the world. Yet, exemplary comparative legal research has been put into this project, which, by the time it came into life, was long overdue. From a comparative point of view, this is a civil code that amalgamates ideas from Eastern Roman law and German civil law with the addition of a number of ideas from other European laws. The powerful influence of Eastern Roman law and German law on the Greek Civil Code is explored herein. As such, special regard shall be had to two major legal sources to the Greek Civil Code: the German Pandectists and the Harmenopoulos’ Hexabiblos, an epitome of Eastern Roman Law that medieval but also most of the modern Greek lawyers would traditionally use for addressing their civil law matters up until 1946.

This chapter addresses the dynamic developments of UK legal education sector regarding internationalisation of legal education (IOLE). A critical eye is cast on the evolving nature of UK legal education, it being examined in certain detail. In particular, this chapter examines the classification of UK legal academic subjects in the modern context and it further analyses the existence and extent of internationalisation of legal academy and legal practice in the UK. Additionally, the authors negotiate the themes of globalisation and internationalisation in the UK, taking into account the wider legal and socio-economic changes that the country has seen in recent decades. Furthermore, the practicalities of internationalisation of legal education in the UK are considered, whilst broader issues of legal education are also briefly examined. Finally, this chapter discusses the necessity for a more internationalised type of education when it comes to the production of ‘global lawyers’. It concludes that the internationalisation of legal education is worth pursuing not only for so-called ‘global’ type of lawyers, but also for the totality of law graduates and practitioners. It has, therefore, been suggested that, whilst the ethos of internationalisation of legal education in UK legal academia and practice is one that is developing, this an ethos that needs to be further strengthened in the future.

This paper will explore the implications in relation to the possibility of making law students comprehend foreign legal terminology. The starting point of our analysis, our hypothesis, will be that the law student is not necessarily equipped with foreign language skills. For this reason the author will attempt to demonstrate that comparative lawyers must familiarise their unfamiliarised (students of law) with familiar domestic [1] terminology where this is possible . If no such familiar concepts can be found, the comparative lawyer should attempt to proceed with ‘translating’ foreign legal concepts by the use of ‘close (functional) terminological equivalents’ in one’s domestic legal language (school of functionalism). If, on the other hand, no parallel legal devices for the foreign legal term are found in one’s domestic jurisdiction, the comparative lawyer should proceed by deploying a contextual approach in his analysis/teaching (school of contextualism). Above all, one is reminded that words are mere conventions. So too legal terms are mere conventions. As a result, it would be neglectful to not state that our students must be assisted in identifying the semainon ( σημαίνον ) and the semainomenon ( σημαινόμενον ), that is assisted in identifying the signified and the signifier, when they engage themselves with foreign legal terminology in their comparative law studies. Additionally, as Van Hoecke has argued, apparently disconnected notions, concepts or areas of law may well be relevant to each other (Van Hoecke 2004, 175). Yet, it would be perfectly ‘legitimate’ on certain occasions for one to compare prima facie connected terms such as ‘ Interprétation – Interpretation or Construction – Auslegung ’ respectively in French, English and German, since these terms are a perfectly valid comparative trio (all words basically refer to the same intellectual activity) (Platsas 2008, 6; quoting Van Hoecke, op. cit. , n. 3). All in all, the paper will conclude that the comparative lawyer should be constantly reminded of the difficulties that his/her students might have when dealing with foreign legal terminology, because of one has it that even experienced comparative lawyers can face problems of comprehension when dealing with foreign legal terminology. [1] Cf. Zweigert and Kötz 1998, 35; according to them the comparatist can only reach ideal results, if he ‘eradicates the preconceptions of his native legal system.’

The law school has not always been one that would be predominantly engaged with national legal matter. The subject of law, as a field of learning, has for a number of centuries been the toy of national educational systems, because law has been the toy of nation States. Law, the discipline, which nowadays draws materials not only from jurisprudence but also from economics, history and political science, has with the rise of the Westphalian paradigm been mostly what the German legal scholars would call a Landesjurisprudenz in epistemic terms, a subject mostly destined to serve the needs of a given locality. The article runs counter to what came to effectively become law’s traditional approach to education. It posits that the discipline of law as well as legal education in itself would certainly benefit from more cosmopolitan and extrovert models of pedagogy.

The convergence of different legal systems is one of the leading theses in the discipline of law. This paper proposes that international economic law is one of the great sources of inspiration for the coming together of various legal systems around the world. The paper will explore the European Union experience in this respect and it will analyse a number of legal principles which promote the idea of legal convergence in the sphere of international economic law. Furthermore, referral will be made to the organisations promoting the convergence of legal systems such as the International Monetary Fund (IMF), the World Bank Group (WB) and the World Trade Organization (WTO). © 2009 Inderscience Enterprises Ltd.

The contribution promotes the idea of principles in academic legal education. Principles are taken to be abstract notions that can offer a certain direction of things in academic legal education. The paper posits that such principles should be taken into account both in the designing and the implementation of programmes of legal study and law degrees in the academic environment. Law is, of course, to this day, a largely divided discipline, especially considering that law has traditionally been in the hands of nation-states. By extension, legal education around the world may be perceived as largely divided too, because the discipline of law has been divided in the first place. However, the proposed principles are ones that ought to come with certain universal characteristics to them. Equally, they should also make allowance for certain local variation where possible, albeit not always and not necessarily. Recognition is also given to the fact that such a degree of local variation could be more significant where such could be justifiably supported by a domestic academic legal community and/or a domestic professional class of legal practitioners. Furthermore, the contribution offers specific examples of principles which can function as overall guiding principles for university law degrees around the world. The paper concludes with an overview of its main findings.

The Israeli legal system is unique in that it straddles the two otherwise opposing worlds of tradition and innovation. This creates an enigma for the comparatist, making the exploration of this system an onerous and challenging task. The author wishes to maintain that the system in question is highly innovative and ascribes this quality to the proactive character of the Israeli Supreme Court, whose activism has had a major impact on the character of the domestic system as a whole. While the author explores the reasons why this has been the case, one of his main concerns in this paper will be to examine the innovative character of the Israeli Supreme Court per se , in comparison with equivalent courts in other parts of the world. In addition the author will seek to establish inter alia the character of the Israeli legal system by focusing on the three different elements that co-exist in the Israeli socio-legal structure (the Jewish element vis-à-vis the Arab element; the Liberal element vis-àvis the Orthodox element within the Jewish community; and the Civilian element visà-vis the Common law element). The author wishes to posit that the amalgamation of different legal and cultural traditions in Israel created a sui generis state of affairs for the legal system as a whole. This results in an overall systemic-methodological amalgamation which does not occur elsewhere in the world. The article concludes that the enigmatic and innovative characteristics of the Israeli legal system derive from the novel way in which the legal mix has occurred in this system (as opposed to the ingredients of the elements in the mix). In this respect, Israel may have contributed much to the reinvigoration of the modern comparative law agenda, and it may continue to do so in the future, as the system is not one of legal stasis (a mixed system) but one of legal kinesis (a mixing system). Keywords: Israeli legal system, Israeli Supreme Court, legal systemics, hybrid legal system, judicial activism, liberalism, public law, private law

The discipline of law has to rediscover its original universal educational configuration. The subject of law with its roots lost in the passage of time, from the study of justice, fairness and equity in Greek philosophy to Gaius’s Institutes in the second Century AD and the Institutes of the Justinian codification in the sixth Century AD, is one that was once deemed rather universal in its educational configuration and philosophical outlook. The revival of the study of law otherwise occurred in Bologna in the eleventh Century AD and the subject grew significantly post the 1648 Westphalian paradigm, which marked a new era for the discipline of law altogether: the rise of the modern nation state and, by extension, the legal codifications movement. The paper, taking into account all these developments, posits that the subject of law was once international in and of itself; so were many of its educational aspects. It further posits that law as a discipline has to rediscover its traditional spirit of universality in furtherance of a more cosmopolitan educational paradigm. The paper concludes with an overview of its main findings.