Legal terminology and comparative law: the role of the operational rules

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November 8, 2017 /

Prof. Dr. Avv. Elena Ioriatti, Professor of Comparative Law, Trento University, Faculty of Law.

Abstract

One of the aims of comparative law is that of giving a contribution to the knowledge and understanding of the different legal systems of the world.

As a science, comparative law is therefore equipped with instruments and techinques, all composing specific methodologies (structuralism and functionalism). While functionalism is based on the analysis of the function (scope) of a specific rule, stucturalism focuses on reality and particularly on the concrete legal effects produced by a rule, regardless it is enacted in a legislative act, or pronunced by a judge in a court, contained in traditional customs or in theoretical principles. Effectiveness is the real aim of comparative law analysis, as this techinique facilitates discovering that the legal effects (operational rules) of a norm are similar in the various legal systems, even it the definitions and the vocabularies are different.

This happens particularly in property law, because of the common concrete features of this ancien area of the law in the different States.

The legal vocabulary is important in the construction of harmonised branches of the law among different legal systems: however, researchers should be aware that the operational rules (effectiveness) are present and similar under the surface of different legal words and definitions.

After a brief overview of the comparative law methodology, examples of common operational rules – existing regardless the different legal terms and vocabolaries – will be offered.