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Oktober Der Fall des sog. Kleinstaatlicher Parlamentarismus zwischen Tradition und Wandel. Viktor Winkler: Der Kampf gegen die Rechtswissenschaft. Michael Stolleis Hrsg. Astrid Lorenz: Parties and Rules. Allerlei Rechtsgeschichten - von Hammurabi bis zum Code civil. Gerhard Strejcek: Erlerntes Recht.

Legally-Historical View. Gerald Mund Hrsg. Aus den deutschen diplomatischen Akten von bis Anna Margarete Seelentag: Ius pontificium cum iure civili coniunctum. Das Recht der Arrogation in klassischer Zeit. Scott Gilfillan: Institutional Imperialism. Von Justinian zum BGB. Clark, Levinson, ed. Mattias Wehr, 1—15, Trier: Paulinus Verlag, Morrison, ed. Lacheman, Winona Lake, Ind. Hagedorn, Anselm C. Johnson, and Richard N. Gleerup, Coats and Burke O. Long, eds. Carson, Peter T. Seifrid, eds.

Jackson, S. Passamaneck, D. Piattelli, and A. Rabello, eds. James C. Greig, New York: Crossroad, Wolff, ed. Geburtstag, —, Munich: Kaiser Verlag, Moshe Fischer, Mainz: Phillipp von Zabern, Hirzel, Hoffner Jr. Catchpole, —, Leiden: Brill, Wolff, eds. Jahrhundert v. Mohr [Paul Siebeck], Festschrift zum Bream and others, eds. Ellen and David Reason, eds. Ifesieh, Emmanuel I. J Jackson, Bernard S. Jackson, Bernard S. Pencak and J. Ralph Lindgren, eds. Archer, ed. Drescher and S.

Engerman, eds. Kevelson, ed. Betz and others, eds. Parente and D. Piattelli, eds. Lewis, eds. Clements, ed. Huxley, ed. Achtemeier, ed. Carmichael, ed. Brooke and J. Kaestli, eds. Jackson and Stephen M. Passamaneck, eds. Sawyer, ed. Rogerson, The Pentateuch. Brooke, ed. Passamaneck and M. Finley, eds. Loewenstamm on His 70th Birthday, 41—56, Jerusalem, Rubinstein, Schwetschke, Atkinson and others, eds.

Dodd, Mohr, Milford, Paolo e la sua interpretzione in S. Paul, Minn. Kantorowitz, C. Hecht and others, eds. Marks and Robert M. Good, eds.

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Long, —, Providence, R. Whose Ecstacy? Redditt, eds. Crenshaw, 97—, Winona Lake, Ind. Studien zum Deuteronomium. New York: Paulist, Hermann Peichl, 11—27, Vienna: Herder Verlag, Karl, 9—26, Jerusalem, Leviticus 17—26 fait il partie du Code Sacerdotal ou bien constitue-t-il un code a part? McDowell Richards, ed. Actes du colloque de Strasbourg 27—29 Novembre , 49—64, Paris: de Boccard, Hocherman and others, eds.

Koschaker, —, Glock, —, Atlanta: Scholars, Bowden, London: SCM, Lehrman, Nathaniel S. Schiffman, Emanuel Tou, and James C. Vanderkan, eds. Goldston, Duculot, Bibliotheca Ephemeridum Theologicarum Lovaniensium Mendenhall, 95—, Winona Lake, Ind. Schiffman, Emanuel Tov, James C.

Vanderkam and Galen Marquis, eds. Levinson and Eckart Otto, eds. Zohar, eds. Williams, Martin S. Jaffee, and Collett Cox, eds. Brill, forthcoming. Rosenblatt and Joseph C. Sitterson, eds. Weiner and Leonard V. Kaplan, eds. Meylan, —, Ackroyd and Barnabas Lindars, eds. Geburtstag, —, Berlin: Walter de Gruyter, Klengel, ed. Eerdmans, Eerdmans Publishing Company, Exegetische und rechtsvergleichende Studien zu Deuteronomium Loewenstamm, Samuel E. Lang, eds. Schreiner, ed. Haag, Dautzenberg and N.

Fishbane and E. Tov, eds. Zu Lev. Maloney, trans. Wolter, ed. Kern, and others, eds. Metz, W. Brekelmans and Johan Lust, eds. Coppens, ed. Banks and others, Rome: Biblical Institute Press, Hilhorst, J. Fabry and H. Ringgren, eds. Botterweck and H. Struppe, ed. Zmijewski, ed. John E. Steely, London: SCM, Reinhardt, Dever and J. Edward Wright, eds. Silberman, 67—80, Atlanta: Scholars, Meek, 31—44, Toronto: University of Toronto Press, James Townley, 14—, London: Longman, Prosecky, ed.

Claassen, ed. Fensham,—, Sheffield, Eng. Mandell, Sara R. Cazelles and A. Feuillet, eds. Benjamin, eds. Reimer, Petersen, ed. Kyle, Jr. Ian H. Jewish Life. Baron, —, New York, Curlander, Roberts, eds. Carter and Carol L. Meyers, eds. Rothman, , Ginsberg volume. Mack and Earle Hilgert, eds. Luria Volume, —, Jerusalem: Kiryat, Friedman, ed. Madsen, ed. Shazar Jubilee Volume, 93—, Geburtstag, —, Neukirchen-Vluyn: Neukirchener Verlag, Meyers and M.

Caspi, Jeppesen and F. Cryer, eds. Ti studier i Det gamle Testamente, —, Anis, Parcours de Nouveau Testament. Theodore, Jr. Brill, — Evans, eds. Poulssen and Graham I. Davies, eds. Baumgarten, — , Leiden: Brill, Theologie and Religionsges, Nosenko, Ye. Evangelical Quarterly 70, no. Ernst, and Lutz Aupperle, eds. Banks, trans. Hoffman, ed. A Semantic Study, Lund, Helmut Gollwitzer zum Geburtstag, — , Munich: Kaiser, Deichert, Gerechtigkeit I. Rezensionsartikel zu A. Zobel and Jutta Hausmann, eds. Romanistische Abteilung , —; reprinted in Kontinuum und Proprium.

Otto and S. Daniels, U. Romanistische Abteilung , 1—31; reprinted in Kontinuum und Proprium. Rezensionsartikel zu F. Niewiadomski and W. Palaver, eds. Zur Redaktion von Exodus f. Hahn and others, eds. Knight, ed. Schriftenreihe des FB 3, 9 , —; reprinted in Kontinuum und Proprium. McEvenue, eds. Rezensionsartikel zu L. Kottsieper and others, eds. Rogerson, ed. Viberg, Symbols of Law. Halpern and D. Locher, Die Ehre einer Frau in Israel. Exegetische und rechtsvergleichende Studien zu Deuteronomium 22,13—21, Welt des Orients 20, no. Carmichael, The Origins of Biblical Law.

Carmichael, Law, Legend, and Incest in the Bible. Stone and D. Brin, Studies in Biblical Law. Eine Bibliographie. Fager, Land Tenure and the Biblical Jubilee. Gertz, Die Gerichtsorganisation Israels im deuteronomischen Gesetz, Theologische Literaturzeitung , — Sprinkle, The Book of the Covenant. A Literary Approach, Theologische Literaturzeitung , — Watts, Reading Law. There is of course some harmonizing eect of con- ventions for the areas where they apply, like nuclear accidents and oil pol- lution and European directives for instance for the area of product liability and, more recently, environmental liability.

But fundamental dierences still seem to exist between, for instance, the very restrictive English approach towards strict liability and the far more generous French case law where strict liability applies on the basis of article 1 of the Civil Code for damage caused by defective objects. A second generality is that in all of this literature it is mentioned that victims increasingly seem to use tort law as a mechanism to seek compen- sation for damage resulting from accidents.

It is argued that there is an expanding liability, especially of industrial operators Faure and Hartlief, but nowadays in some systems also of public authorities. Some argue that this tendency of victims to use tort law to seek compensation should be stopped, referring to the fact that the limits of liability are reached and it is time to keep the floodgates shut Spier, , Of course the incen- tive for victims to use tort law to obtain compensation largely depends on the availability of other instruments to provide this accident compensation.

Accident compensation 7. Thus it has often been argued that tort law, for example, in the US is far more developed precisely because American victims lack a basic social secu- rity system to provide for their basic needs after an accident. European victims would primarily be able to rely on tort law and should thus use the luxury of tort law only to provide the limited part of damage not com- pensated under social security. Traditionally tort law therefore played, at least in European systems, a rather modest role in providing accident com- pensation.

However, with a reducing role of government in the social secu- rity system as a result of financial deficiencies governments in many European systems tended to reduce social security payments the need for victims to use tort law also to receive compensation of basic needs may increase in the European context as well. A third trend is undeniably that the increasing research with respect to the dierences in the European tort systems has also given rise to an increasing interest in the harmonization issue, although the question whether or not tort law should be harmonized at a European level is still an issue of debate see section 6 below.

Of course many authors stress that tort law can only play its role in pro- viding accident compensation to victims if there is a guarantee against the insolvency of the insurer. Many legal systems have again often as a result of conventions or directives, as with motor vehicle insurance introduced a duty for insurers to seek financial coverage, usually taking the form of liability insurance. Also economists have stressed that, in case of an insolv- ency risk, such a duty should be introduced, since otherwise tort law may fail to have its deterrent eect Shavell, If liability and insurance do not provide relief to the victim, victims may also seek coverage on a first party insurance basis.

As mentioned in the introduction, many legal systems allow victims to seek coverage for that part of personal injury damage not covered under social security through personal accident insurances. These generally cover the risk, depending upon the policy conditions, irrespective of the cause of the accident and usually provide lump sum payments. In some cases, for instance in the well- known French insurance garantie contre les accidents de la vie, coverage is provided on a first party basis as if tort law were applicable.

That means that a victim can receive compensation from his first party insurer also for non-pecuniary losses, which is rare in first party insurance contracts unless a lump sum is paid, which can of course include a component of non- pecuniary damage as well. The scope of coverage will usually depend upon the policy conditions. Victims may also seek cover for property damage they suer as a result of an accident. Traditional examples heavily regulated in most legal systems are housing insurances or fire insurance.

Consequently these types of insurance, especially covering real estate, are widespread in practice. A problem that has risen recently on the occa- sion of large natural disasters is that in many countries property damage caused by natural disasters was excluded from coverage Schwartze and Wagner, This has led some legislators, for instance in France, to intro- duce compulsory cover of damage caused by natural disasters on volun- tary housing insurances Moreteau and others, One possibility is that, even after all the above-mentioned instru- ments have been used, victims still remain uncompensated.

A fund would then be used simply because the traditional instruments would not provide adequate accident compensation. This may for instance be the case when no liable injurer can be found or when the injurer proves to be insolvent. In many legal systems one can therefore see compensation funds for instance to cover damage by uninsured motor vehicles or damage suered by victims where the liable injurer can not be identified. That is for instance also the case with environmental damage coming from unknown polluters. Insolvency may particularly be a problem with damage caused by inten- tional violent crime.

Many legal systems therefore have fund solutions to compensate victims of those crimes. Many more examples of those funds could be given. It applies for instance also to cases where victims suer property damage as a result of natural disasters. Here see above social security usually does not intervene and in many countries first party insur- ances exclude damage caused by natural disasters. For instance Austria and Belgium have therefore created catastrophes funds although the role of these funds is limited: not all damage is covered.

In all of these cases the fund solutions have a subsidiary character. They come in other words into force only because traditional mechanisms do not provide an adequate remedy. However, a condition for calling on the fund is usually that the victim has used the available traditional mechanisms. Some argue that it makes no sense to use the tort system to provide accident compensa- tion since it would be too costly, too slow, ineective and thus not able to provide adequate compensation at low costs.

Generally it is argued, for instance in the area of trac liability, that liability and insurance rarely have a deterrent function. In sum the argument goes that both deterrence and compensation can better be provided through other mechanisms than tort and insurance. This point of view has especially been defended strongly by the well-known French tort lawyer Andr Tunc Tunc, , He has been quite successful with his plea in favour of a so-called no-fault accident compensation system since such a no-fault model has for instance been introduced in France and has afterwards been discussed in many other countries as well Van Dam, This idea, that accident compensation could take place in a totally dierent way from via tort and insurance is not only limited to the area of trac liability Van Schoubroeck, ; in some legal systems a general- ized no-fault accident compensation scheme for victims has been intro- duced, the best known at least the most discussed in the literature probably being the Scandinavian one Bitterich, This is a topic that has many proponents: many praise the system for the low administrative costs com- pared to the tort system ; others argue that it would dilute the incentives for prevention Solender, ; Mahoney, Similar tendencies towards no-fault compensation schemes exist in other legal systems Rhodes, , the best known probably being the Swedish personal injury compensation law.

But also this Swedish no-fault compensation scheme has been subject of serious criticism. On the one hand the amounts of compensation would be lower than what would be awarded under tort law, on the other hand there are doubts about the preventive eects of the system Dufwa, This ques- tion has led to a lot of controversy. Some lawyers argue that there would be no reason why a victim in, for example, Portugal should receive less in non- pecuniary losses in the case of the loss of, say, an arm, than in Germany.

Harmonization would therefore be needed Magnus and Fedtke, Others, especially law and economics scholars, are far more critical of the harmonization of tort law in Europe. They argue that there are good reasons for the dierent treatment of victims in dierent countries, one of them being that the dierences are linked to dierent preferences of citizens Hartlief, Law and economics scholars especially argue that harmo- nization would not be necessary to level the playing field in other words for the internal market and that, also in the domain of tort law, the insub- sidiarity principle should be taken seriously.

We have already mentioned the domain of trac liability where in legal doctrine, but also in some countries, there is a trend away from liability and insurance towards no-fault compensation schemes. Also for other specific areas a debate takes place on the role of tort and insurance versus alternative compensation mechanisms.

For instance in the environmental area the problem often arises that no liable injurer can be found and that hence tort and insurance may only play a little role of course social security almost plays no role at all in this domain. The legislator introduced far-reaching joint and several liability rules that even apply in a retroactive manner. Here the wish of the legisla- tor to receive compensation to finance the clean-up of so-called black spots apparently had priority over the respecting of fundamental prin- ciples of tort law.

The superfund construction and similar examples in Europe is therefore heavily criticized from an economic perspective Revesz and Stewart, In many European countries there is undeni- ably also a tendency towards an increasing use of tort law but also public law mechanisms to obtain recovery of especially soil clean-up costs. However, some scholars argue forcefully against using tort law as a com- pensation mechanism in this domain Bergkamp, The European Union followed recently, with its environmental liability directive of April , a mixed approach in that public authorities can claim compensation from liable polluters for clean-up costs, although the basis is apparently not necessarily a liability claim.

However, in line with suggestions in the litera- ture, the new mechanism is not retroactive and many important aspects like the issue of causation and the justificative eect of a license are left to the member states Faure, As we have already indicated, also the question of how victims of catas- trophes can receive adequate compensation has received attention from many legislators, resulting in specific arrangements. For the specific area of nuclear accidents some harmonization took place since international con- ventions deal with this issue Vanden Borre, All scholars agree that the scope magnitude and uncertainty of the terrorism risk are such that it is very dicult to apply classic insur- ance principles to this risk.

That explains why most legal systems have looked for alternative government provided solutions to guarantee acci- dent compensation to victims in this domain Liedtke and Courbage, ; Koch, ; Posner, Again, the well-known issues play a role here as well: victims increasingly use tort law to seek recovery for their damage and courts at least in some countries seem increasingly willing to provide compensation via tort law, in some cases backed up by liability insurance. However, there still are con- siderable dierences in this respect between the countries see Faure and Koziol, However, in some cases the liability in the medical malpractice area has been expanding so much, more particularly in the US, that some have argued that this expanding liability has led to an insurance crisis Priest, In some countries insurers have therefore withdrawn from that market Danzon, In cases where victims suer large damages, com- pensation is therefore often lacking.

Also in this domain a call for the intro- duction of alternative liability regimes can be heard Danzon, Again, the countries with some experience in this domain are to be found in Scandinavia Norway and Sweden , but also New Zealand. Recent com- parative research shows that similar empirical material is apparently dierently interpreted by health lawyers and tort lawyers Dute, Faure and Koziol, a.

Tort lawyers are generally sceptical with regard to no-fault compensation systems, fearing that this will dilute any incentives of the healthcare providers to prevent medical malpractice. Health lawyers on the other hand praise the no-fault compensation systems since these would provide quick compensation for accident victims at relatively low costs. They tend to attach less belief to the deterrent eect of tort law on medical malpractice. A related area on which specific legislation and quite a bit of legal doc- trine exists is the liability for biomedical research with human subjects.

However, also here problems arise on the one hand because the compulsory insurance which is imposed can not always be fulfilled because in some legal systems insurers seem reluctant to cover this risk. Also problems arise with the proof that the damage of the victim is caused by the biomedical research and does not result from the health condition of the victim Dute, Faure and Koziol, b.

It is indeed often the causation issue that will crucially influence the scope of the compensation regime. There is with respect to the specific areas see the references in sections 7 and 8 above some interesting empirical material usually showing, not surprisingly, that the liability system may provide the luxury of fully compensating the victim, but that it is far too costly in administrative costs , takes a long time before the victim is compensated and is limited in scope in the sense that only a relatively small percentage of damage caused by accidents is compensated through the tort system.

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Some specific studies have equally addressed this point. In the Netherlands as early as the s, Bloembergen later a member of the Netherlands Supreme Court claimed that the tort system only led to huge administrative costs and to claims by first party insurers against trac liability insurers Bloembergen, Also a study by Weterings on the administrative costs of compensating per- sonal injury showed that the costs involved in establishing medical causa- tion see section 8 are relatively high compared to the proportion of the damages finally awarded to the victim Weterings, Similarly research also showed that tort law would, compared to other social security and first party insurance sources, only contribute up to 10 per cent of the total com- pensation of trac accident losses Faure, Far more interesting than the question of what the impact of the various systems on accident compensation is, is of course the question of what the influence of the various compensation instruments is on the deterrence of accidents.

Also in that respect many studies exist, an excellent summary of which has been provided by Dewees, Du and Trebilcock They examine various categories of accidents, which we have also discussed above trac, medical malpractice and environment. This may once more prove the point that, although most academic writing is occu- pied with the way in which various legal systems deal with tort law, its importance in practice, both as far as compensation is concerned as well as regarding prevention, may be far more limited than one would expect from the literature.

Other systems apparently play a far more important role both in preventing regulation and in compensating social security, insurance accidents. The traditional debate between on the one hand those who favour regulation with public compensation systems and on the other the often private lawyers who favour tort law and insur- ance is still of importance today.

This debate apparently influences the leg- islator in many countries as well, since in various domains legislators seem to move away from the mere use of tort and insurance towards alternative compensation mechanisms, for instance in the areas of medical malprac- tice, environmental pollution and trac accidents. Nevertheless, this ten- dency away from tort towards alternative mechanisms is certainly not generalized and moreover definitely not free from criticism.

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Many, indeed, hold that this trend away from individual responsibility towards collective compensation mechanisms may reduce essential incentives towards the pre- vention of accidents, which still is the primary way of victim protection. Whether the public or private instruments are most suited to provide accident compensation is, as we have shown, often an empirical matter having to do with the way in which the various systems are able to provide speedy compensation at low cost and depending upon the influence on the incentives for prevention of the dierent systems.

However, the empirical material available seems to be limited and even its interpretation is highly debated. Although we have noticed many harmonization attempts, some in con- ventions and European directives, but mostly in legal doctrine, we should also note that, especially as far as specific compensation mechanisms are concerned compulsory insurance or compensation funds , there is still a lot of variety between the dierent legal systems and even between the dierent categories of accidents.

There seems in this respect to be no general way in which dierent accidents such as trac accidents, medical malpractice or environmental pollution are handled. Moreover, accident compensation is an area which today is in full evolution. This is therefore undoubtedly a domain that deserves to be followed carefully in the near future. Bibliography Ahrens, M. Arcuri, A. Bergkamp, L.

Títulos relacionados

Betlem, G. Bitterich, K. Bloembergen, A. Bona, M. Danzon, P. De Haas, S. Hartlief , Verkeersaansprakelijkheid. Deketelaere, K. Dewees, D. Du and M. Dubuisson, B. Loi du 30 mars , Brussels: Bruylant. Dufwa, B. Magnus and J. Spier eds , European Tort Law. Dute, J. Faure and H. Epstein, R. Faure, M. Accident compensation Hartkamp et al. Gimpel-Hinteregger, M. Gordon, S. Hartlief, T. Towards European Civil Liability , in M. Faure, H. Schneider and J. Hondius, E. Horbach, N. Interuniversitair Centrum voor Rechtsvergelijking ed.

Jacobs, R. Jadoul, P. Dubuisson eds , Lindemnisation des usagers faibles de la route, Brussel: Larcier. Koch, B. A Comparative Survey, Vienna: Springer. Ktz, H. Wagner , Deliktsrecht, 10th edn, Neuwied etc. Koziol, H. Liedtke, P. Courbage eds , Insurance and September One Year After. Magnus, U. Fedtke , German Report on non-pecuniary loss, in W. Horton Rogers ed. Mahoney, R. Markesinis, B. Auby, D. Coesters-Waltjen and S.

Deakin , Tortious Liability of Statutory Bodies. Moreteau, O. Faure and T. Neethling, J. Potgieter and P. Visser , Law Delict, 4th edn, Durban: Butterworths. Pieters, D. Posner, R. Priest, G. Revesz, R. Stewart eds , Analysing Superfund. Rhodes, P. RoseAckerman, S. Schamps, G. Schirmeister, F. American Perspectives on the law of Damages for Personal Injury? Schwartze, R.

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  • Shavell, S. Skogh, G. Faure and R. Van den Bergh eds , Essays in Law and Economics. Solender, E. Spier, J. Stapleton, J. Tunc, A. Van Boom, W.

    Koziol and Chr. Van Dam, M. Vanden Borre, T. Van Dunne, J. Van Gerven et al. Scope of Protection, Oxford: Hart. Van Schoubroeck, C. Von Bar, Chr. Wagner, G. Band 5: Schuldrecht. Weterings, W. Widmer, P. Wilde, M. Zimmermann, R. Zweigert, K. Ktz , An Introduction to Comparative Law, trans. Tony Weir, 3rd edn, Oxford: Clarendon Press, especially, p. The main reason for this has been the widely shared assumption that in the area of public law there would be neither a practical nor a theoretical need to search for solutions that com- parative analysis might have been able to bring about.

    In fact, since the 19th century the domestic administrative systems have long been perceived as reflecting a unique organizational choice by the nation state tailored to the national political, societal, economic and cultural particularities of its polity rather than being the result of transnationally shared fundamental values or concerns.

    Thus traditional concepts of administrative law used to emphasize the uniqueness of the states administrative system that would not easily allow comparisons with, let alone transplants from, other systems. Contrary to this, private law, at least in its commercial aspects, has traditionally been more open to comparative analysis and transnational convergence.

    This essentially flows from the universality of the private economic interests at stake and the need to facilitate ever growing private cross-border transactions. Moreover, private law does not bear the same intimate link with the identity of the nation state, its fundamental values and the functioning of its public institutions as has been the case for domes- tic administrative law Bermann, , pp.

    Another reason for the longstanding lack of comparative work on administrative law stems from the fact that notably the common law systems, with the exception of the United States, have long resisted under the Diceyan influence Dicey, the recognition of administrative law as constituting a body of law in its own right Chiti, , pp. Furthermore, the relatively late development of fully fledged national administrative systems governed by judge-made law or statutes with clearly delineated subcategories of administrative powers, such as for instance in environmental matters, has rendered administrative law less amenable to useful comparative analysis than private law, a domain which was early.

    This is not to say that comparative administrative law has played no role in the early development of modern democratic polities. Indeed, albeit pursuing dierent purposes, a number of important analyses in compara- tive administrative law were delivered as early as the end of the 19th century Gneist, ; Dicey, ; Mayer, ; Goodnow, More- over, comparisons with leading continental administrative systems, such as those of France and Germany, have helped shape and consolidate under the rule of law the administrative structures of a number of emerging nation states, putting the latter under continuous influence of the former until today Chiti, , pp.

    However, it was only in the post-World War II period that the first serious attempts at establishing comparative administrative law as a discipline of its own were undertaken Rivero, ; Schwartz, ; Scheuner, ; Braibant, ; Heady, Today, for a variety of reasons, comparative administrative law has become an essential part of both legal practitioners and academics work with a great potential for further evolution. Growing internationalization and integration of economic relations among states and individuals glob- alization , enhanced international diusion of information, knowledge and technological innovation, cross-border environmental issues etc.

    It is obvious that traditional domestic administrative law is inherently inappropriate to meet problems transcending national boundaries. A factor contributing to this evolution has been the continuous blurring in the second half of the 20th century of the traditional dichotomy between the so-called civil and common law systems that was concomitant with the overall recognition of administrative law as a discipline of its own.

    Moreover, European integration has created marked convergence tenden- cies in administrative law during the same period. This convergence phe- nomenon can be described as a circular process of mutual adaptation and cross-fertilization of administrative laws with a view to constraining the exercise of public power by the new supranational polity, which is charac- terized by the pooling of various administrative competencies, the emer- gence of new functions and responsibilities for public administrators at both national and supranational level as well as novel and complex ways of hor- izontal and vertical interaction between them multi-level governance Scharpf, ; Chiti, , pp.

    The latest rise, more recently at international level Stewart, ; Kingsbury et al. While such comprehensive analyses may well serve as a reference or a starting point for more detailed research into a given problem, the core of comparative work consists of singling out the responses that foreign systems or branches of administrative law oer to the same or to a similar problem in order to enable the comparative analyst to make well-argued sug- gestions for a better solution.

    The application of this principle entails in a first step the accu- rate definition of a given problem in its most generic terms freed from the specific doctrinal underpinnings of the legal order in which it occurs. This should enable the comparative analyst to find in a second step a function- ally equal solution in a foreign legal order irrespective of the source of law delivering that solution Schwarze, , pp. Schwarze explains this process of comparison as comprising a negative and a positive eect: as regards the negative eect, the principle of functionality demands that the solutions taken from the foreign legal system are to be divested as far as possible from all specific conceptual content in order to facilitate their separation from specifically national doctrine and their proper evaluation regarding their generic function and substance.

    In a third step, subsequent to this comparative analysis, a critical evaluation of the results gained needs to be undertaken so as to determine the most appro- priate, preferable, ecient or best solution adapted to the requirements of the legal order to which it should be applied ibid. This last step is particularly important in order also to guarantee the legitimacy and the acceptance of a new solution that com- parative work brings about. However, the comparative methodology underlying the principle of functionality necessarily bears its limits in administrative law with a view to the inherent uncertainties as to the actual substance and meaning of admin- istrative rules and guarantees in the context of any administrative system.

    Accordingly, administrative rules of a technical or incidental nature, such as those on the classification of goods, are much more amenable to solu- tions singled out by comparative work than essential rules with a particu- larly firm grounding in the politys administrative and political system, such as rules on the protection of public security and order, social security or immigration. Firstly, comparative analysis may help better understand the underpinnings and intrinsic values of a given legal concept, which may long be rooted in domestic administrative law or even originally be borrowed from a foreign system, to enable it to deliver better results through modified interpretation or adaptation.

    Secondly, comparative research may contribute to developing domestic administrative law beyond its traditional paradigm by adapting it to foreign concepts or even accepting transplants from other administrative systems that contribute to more ecient problem solving or better results. Comparative analysis may also prepare the ground for establishing new higher-ranking administrative principles that specifically constrain the exercise of public power by the new supranational polity see below, section 3. This may be reached in dierent ways, namely through the creation of laws by the competent domestic leg- islature, the coordination, harmonization or unification of laws by transna- tional or supranational institutions, the interpretation or shaping of administrative law concepts by the judiciary, or a combination of these instruments Schwarze, , pp.

    It has also been argued that com- parative analysis is particularly important in providing guidance in the dis- cussion on the usefulness of regulatory cooperation and harmonization among states on the one hand and maintaining competition of legal cul- tures and concepts on the other.

    Indeed, both models regulatory cooper- ation and regulatory competition require careful comparative analysis in order to be able to decide upon the most ecient solution for improving both public and private utility Bermann, , pp. The frontrunners in the evolu- tion of shaping such general principles at the European level clearly are the European Court of Human Rights in Strasbourg Boyle, ; Bradley, and the Court of Justice of the European Communities in Luxem- bourg Rengeling, , ; Schwarze, ; Usher, ; Tridimas, In the context of Community law, the European Court of Justices elaboration of general principles of administrative law, alongside the cre- ation of autonomous Community fundamental rights, has been one of the most important contributions a judiciary has ever made to the functioning of a supranational organization entrusted with its own regulatory and exec- utive powers Chiti, b.

    While the Strasbourg European court was asked to shape a range of guarantees of administrative justice based on Article 6 of the European Convention on Human Rights Schwarze, b; Jacot-Guillarmod, ; Bradley, , the European Court of Justice was faced with the need to create such principles in the complete absence of codified rules the exception being the duty to state reasons under Article of the EC Treaty by drawing in particular on the legal traditions of the Communitys member states.

    To that eect, thorough comparative analysis of the member states administrative laws was an indispensable prerequisite.