ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

47 COMPARING LAW(S) AND
INSTITUTIONS
Panel formed with individual proposals.
Participants Yoav Dotan
Lorne Neudorf
Elona Saliaj
Alberto Febbrajo
Name of Chair Lorne Neudorf
Room UL6 3119
Yoav Dotan: Introducing: The McDonald’s
Index for Comparative Administrative Law and
Regulation
The field of comparative law in general, and administrative
comparative law in particular, is notorious for
suffering from severe conceptual, practical, epistemological,
and methodological difficulties. Comparativists
usually lack information about the intricacies of foreign
legal systems and are epistemologically constrained
by their system of origin. Even more troubling is the
gap between the ‘law in the books’ and the ‘law in action’
that seems to be particularly wide in the field of
comparative administrative law. In the current paper
I present a new conceptual and practical tool for the
study of comparative administrative law. This suggested
methodology is based on using a common real-life
reference point such as McDonald’s branches, and
testing the ways in which various legal regimes apply
to them in each and every different legal system. By
using a bottom-up empirical methodology of that kind,
I argue, we shall be able to overcome most difficulties
in current CAL research and move on towards more
systematic and analytical methods of comparison.
Lorne Neudorf: Taking Comparative Law
Seriously: Rethinking the Supreme Court of
Canada’s Modern Approach to Statutory
Interpretation
In 1998, the Supreme Court of Canada (SCC) adopted
the ‘modern approach’ to statutory interpretation.
By separating the Court’s interpretive analysis into
three stages focused on text, context, and purpose,
the modern approach sought to provide greater legal
certainty and clear guidance for judges in interpreting
legislation. By examining the SCC’s jurisprudence
over the past decade, it is clear that one important
aspect of interpretation has been neglected as part
of the modern approach: the use of foreign law. The
approach of the SCC to foreign law in applying the
modern approach appears to have been mostly unprincipled
to date. In some cases, the SCC looks elsewhere
for guidance or to learn important lessons that
can be applied to the interpretive problem at hand. In
other cases, the consideration of foreign law appears
to be absent despite highly relevant developments in
similarly situated countries. This paper argues that a
re-evaluation of the ‘modern approach’ is necessary
to fulfil the goals of the modern approach by making
explicit the circumstances in which courts will draw
upon and examine foreign law.
Elona Saliaj: Comparative analysis of the institution
of registration of immovable property in
Albania compared with Germany
This presentation presents comparative overview
of the institution of registration of immovable property
comprising each country, as an important institute legal
publication of the right of ownership and other real
rights related to them. Comparative analysis of the
institution of registration English with German, seeks to
identify the characteristics contained in this institution
in terms of legislation, the registration of real estate
and real rights related to them, the management of the
institution of real estate, practical and legal problems
comprising each system, etc. Thereby, the comparative
analysis focuses more on presenting characteristics
similar and distinctive to each of them to highlights and
to reflect the advantages and disadvantages of having
each system in order to improve the Albanian system
of registration of real estate through the incorporation
of legal reforms.
Alberto Febbrajo: Quo Vadis Public Law?
The fundamental concept of the constitution is
changing rapidly. On the basis of the general formula
one state one constitution the constitution used to be
seen as the sole and indisputable mother of the legal
order as the “norm of the norms” on which the individual
legal decisions could ultimately be grounded
as the benchmark for sustainable and coherent solutions
to the problems of a differentiated society and
as a safe harbour where the certainty of law could be
protected successfully. Due to its privileged relations
with civil society on the one side and with political
power on the other the constitution was consequently
used in many convergent ways: by judges as the main
tool for granting identity to their legal decisions by
political actors as the main criterion for defining the
limits of legal interventions and by the public as the
main institutionalised norm for defending the abstract
recognition of new rights or the elimination of previous
constraints.
Concurring panels 83