Abstract
In this brief essay, I discuss about the significance of the confluence in law, by also arguing that there are three important modes of confluential process. These are rendition, modulation, and construction. Rendition is the normative translation of key concepts or ideas at the basis of legal practice in a society; modulation is the change of an understanding of some theory-set in existing law by another foreign theory-set; and construction is the establishment of new laws in new spaces of law in a society. I show particular cases to confirm the effects of these modes in the confluence of law, along with suggesting the implications of this investigation for further interdisciplinary studies of law.
The points in the draft of this paper were presented at the roundtable for remembering H. Patrick Glenn in the 20th General Congress of Comparative Law held on July 26, 2018, in Fukuoka, Japan. I am very grateful for the invitation to the roundtable by Profs. Vivian Curran and Helge Dedek. Also I wish to thank Mr. Naruhito Cho who was once a postdoctoral researcher in the School of Law at Hokkaido University and, since then, has been a principal cooperator for my works concerning the confluence in law by his editorial suggestions and clarifications.
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Notes
- 1.
- 2.
Glenn (2007b), pp. 91–108.
- 3.
Glenn (2014), Ch. 10.
- 4.
Hasegawa (2015), pp. 501–517, esp. p. 506ff.
- 5.
Hasegawa (2009a), p. 88ff.
- 6.
Hasegawa (2016), p. 4ff.
- 7.
New law needs coherence with existing laws. This is a logical consequence of the fundamental requirement of legal stability, which is also a collorary of the ideal of the rule of law.
- 8.
See Kinoshita (2010), p. 123ff.
- 9.
Cf. Dworkin (1986), Ch. 2.
- 10.
This circle is also to be understood generally as the interpretive spiral of receptivity, sagacity, and practicality. This spiral develops successively toward a new dimension of itself over time, with a better interpretation and integration of values. See Hasegawa (2009b), p. 91ff.
References
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Glenn HP (2007b) Comparing. In: Orucu E, Nelken D (eds) Comparative law: a handbook. Hart, pp 91–108
Glenn HP (2014) Legal traditions of the world, 5th edn. Oxford University Press, Chs. 9 & 10
Hasegawa K (2009a) Between rights and ‘Kenri’. In: Cashin-Retaine E (ed) Legal engineering and comparative law, vol 2. Schulthess, pp 87–103
Hasegawa K (2009b) Incorporating foreign legal ideas through translation. In: Halpin A, Roeben V (eds) Theorizing the global legal order. Hart, pp 85–106
Hasegawa K (2015) Normative translation in the heterogeneity of law. Transntl Legal Theory 6(3–4):501–517
Hasegawa K (2016) The dynamics of ‘Confluence’ in a legal system―comments on H. Patrick Glenn’s insights on legal traditions. Transntl Legal Theory 7(1):1–8
Kinoshita T (2010) Legal system and legal culture in Japanese law. Comp Law Rev XLIV-3:25–168
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Hasegawa, K. (2019). On the Modes of Confluence in Law. In: Boele-Woelki, K., Fernández Arroyo, D. (eds) Current Issues of Comparative Law – Questions actuelles de droit comparé. Ius Comparatum - Global Studies in Comparative Law, vol 35. Springer, Cham. https://doi.org/10.1007/978-3-030-20659-8_3
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