Ius Commune Promovendiopleiding 2010 - 2011. Foundations of Ius Commune
Maastricht, maandag 4 - woensdag 6 april 2011
Set-UpThis part of the Ius Commune training programme has been amended in 2004 as a result of suggestions formulated by the junior researchers. Before 2004, the junior researchers had to read a lot of material and were supposed to hold a presentation, explaining what the relevance was of the material that had been studied for their individual project. Since there are already many of those individual presentations within the scope of the training programme, it was held that another presentation might not be that useful. There was an explicit wish from the junior researchers to have more traditional teaching concerning the foundations of Ius Commune and to have the possibility to discuss the relevance of the presented material with the speaker.
Combined presentations and lecturesAs a result of these suggestions, the current programme consists of two days of lectures in which the foundations of Ius Commune are analyzed from different angles. No prior reading is necessary although every lecturer can provide useful documentation material for the junior researchers. During the lectures, there is already the possibility of feedback and discussion (Socratic method). Moreover, after the lectures there is a possibility for the junior researchers to reflect on the relevance of the presented material for their topic. The third day, the junior researchers are to present their ideas on how they could probably use the presented material in their PhD research during a panel discussion together with the lecturers. Hence, this discussion does not take the form of formal presentations by the PhD researchers, but consists more of a round table discussion.
TopicsObviously, a lot of material exists concerning the foundations of Ius Commune. Nevertheless, within the limited time available of 3 days, it seems necessary to focus on a few issues. Therefore, the following issues will be discussed during this course on foundations of Ius Commune:
Prof. dr. Frans LeeuwLaw and the social sciences: on the pervasiveness of law, society and behaviour
In this lecture a social science approach for dealing with the intertwinement of law, society and behaviour is provided. Starting with presenting and discussing the sequence in empirical social science research (problem formulation, use of (explanatory) theories and data collection and analysis) examples of (theory-driven) social science research regarding the Judiciary will be looked at in more detail and the lecturers will present a few examples regarding research on the dispensation of justice and introduce an overarching approach regarding the role of law in society. Also, attention will be paid to evaluation research concerning law, regulation, enforcement and 'inspection'.
Prof. Dr. Monica ClaesIus Commune and (European) public law
In this part of the course, attention is given to issues of multilevel governance and the question in what respect these issues may give rise to the construction of a Ius Commune. The frequent interaction between the national, European and international level is a highly complex but important aspect that will be addressed in this part of the course. Rather than a classic comparative law approach, in this part some thoughts will be formulated on theoretical foundations of inter alia European harmonization/centralization from a legal perspective, but also on the role of inter alia the European Convention on Human Rights.
Prof. dr. Michael G. Faure, LL.M.The relevance of law and economics for the foundations of Ius Commune
The course addresses the economic analysis of law and first of all explains why law and economics research may at all be useful for comparative legal research and for Ius Commune research. A few examples will be given of what law and economics has to offer. More in depth, attention will be given to how law and economics thinks about issues of federalism and how economics considers e.g. a European civil code project or the search to common principles. Hence, this will provide some insights in the economic justifications for harmonization of legal rules.
In the economic analysis of law, attention has not only been paid to rules of private law, but also to public law. More particularly, public choice and political economy have given a lot of attention to the influence of interest groups on wealth maximizing politicians. Hence, some attention to these aspects of public law will be given as well.
Prof. dr. Jan SmitsThe emerging European private law and modern approaches to comparative law
In this course, attention will be paid to some of the more recent developments in the fields of European private law and methodology of comparative law. The different ways in which comparative law studies can be pursued will be discussed by reference to influential comparative lawyers of the past. Their views will be related to the present debate on harmonization with an emphasis on the question if one should look for similarities and/or differences in comparing legal systems. Where possible, public law will be addressed as well.
Prof. dr. Remco van RheeIus Commune in a historical perspective
This course will deal with the common foundations of law in Europe. Although no one doubts that the historic Ius Commune may offer the modern researcher new perspectives, it seems that many authors do not use this rich treasure house of European legal history to its full extent.
The course will first of all address the question as to the definition of the historic Ius Commune: should it be defined as an early �Common Law of Europe�, or are other definitions more preferable. Secondly, the different elements of the Ius Commune will be discussed and, finally, attention is given to the influence of the Ius Commune in England and Wales, as well as in Scotland. It is hoped that in this manner some insight can be given into what history has to �teach� as regards the feasibility of the harmonization of legal rules in Europe.
Although the Ius Commune is often considered to be merely of interest for private law, this course also hopes to show that the public lawyer may benefit from it. For this reason, the history of State sovereignty and/or the Rule of Law will also be discussed to some extent.
Prof. dr. Willem van BoomBehavioural approaches and the relevance for legal sciences
In this lecture a behavioural approach is presented to legal problems. Increasingly law and psychology literature is used to explain how (private or corporate) individuals may react to legal rules. Indeed, many legal instruments (either of legislative or case law nature) are based on the assumption that rational individuals will react in a rational way to incentives provides through legal mechanisms. Since the early 1960's psychologists like Tversky and Kahnemann have shown that, however, the decision-making of individuals, especially when it takes place under uncertainty, is influenced through a variety of so-called heuristics and biases. The influence of these shortcomings (also referred to as the result of so-called bounded rationality of individuals) has been well documented in psychological literature. The relevance of this literature is now also discovered in other sciences, primarily in economics (in the so-called behavioural economics literature) but increasingly by lawyers as well. In this lecture it will be shown that some of this literature in which empirical studies concerning the actual behaviour of people is examined is very relevant for lawyers and more particularly for legal research as well.
LecturersProf. Dr. Frans Leeuw is Director of the WODC (Research and Documentation Centre of the Dutch Ministry of Justice) and Professor in the department of Sociology at Utrecht University
Prof. Dr. Monica Claes is Professor of Comparative and Constitutional Law at Tilburg University
Prof. Dr. Michael G. Faure LL.M. is Professor of Comparative and International Environmental Law at Maastricht University and Professor of Comparative Private Law and Economics at Erasmus University Rotterdam
Prof. Dr. Jan Smits is Professor of European Private Law and Comparative Law and Academic Director of the Tilburg Institute of Comparative and Transnational Law at the University of Tilburg
Prof. Dr. Remco van Rhee is Professor of Legal History at Maastricht University
Prof. Dr. Willem van Boom is Professor of Private Law at the Erasmus University Rotterdam
GoalThe overall goal of the Foundations course is to provide PhD-researchers with some insight in the possible analytical approaches towards Ius Commune. The lecturers have as such not been asked to provide clear cut answers to where a Ius Commune could be found, but to show that within (and outside) the various legal perspectives, a wide literature exists that could be used to constitute a �Ius Commune�. That is precisely the goal of this �Foundations� course: it is meant to make the PhD-researches acquainted with various bodies of literature (within social sciences, economics, private law, history of law and public law) that have, from various angles, addressed the question if, why and how a Ius Commune ought to be constructed. It is hoped that the reference to some of this literature might provide the PhD-researchers with some ideas to constitute an analytical framework for their own topics. Hopefully they will see some connections between the ideas that were developed in that respect in the various disciplines and that will be presented during this part of the training programme. If so, at least they should know where through further reading more information can be obtained.
Therefore at the last day of the training programme an informal round table discussion will take place whereby the PhD-researchers will be asked to reflect on the usefulness of the various presentations and the ideas presented therein for their own research. Of course no formal presentations are expected at that moment from the PhD-researchers, but just some ideas and an exchange of information. Therefore during this round table discussion most of the lecturers (and a few others) will be present to reflect. The idea is that during this round table discussion ideas may be generated for further research and reading.
The central goal of the whole exercise is obviously that we hope to provide the PhD-researchers with some information on possible analytical frameworks for their own research.
LanguageThe Foundations course will take place in English.
6200 MD Maastricht
Tel.: + 31 (0)43 - 3883207