Showing papers by "Ralf Michaels published in 2018"

The UNIDROIT Principles as Reference for the Interpretation of US Law

Abstract: Countries vary greatly in the extent to which they make use of the UPICC for this purpose. Some countries refer to the UPICC a lot, others very rarely. The United States is in the latter category. The UPICC play a very subordinate role in its law. The number of court opinions referring to them is minuscule, even though both the UCC and the Contracts Restatement were amongst the most-cited references in the drafting of the UPICC. The report demonstrates that there is significant overlap between the UPICC and US contract law and that the UPICC could often serve as welcome models for reform.

How Asian Should Asian Law Be? – An Outsider’s View

Abstract: Is there an Asian identity of Asian law, comparable to European identity and therefore similarly useful as a justification for unification projects? If so, what does it look like? And if so, does this make Asia more like Europe, or less so? Or is this question itself already a mere European projection? This chapter tries to address such questions. In particular, I look at a concrete project of Asian law unification—the Principles of Asian Comparative Law—and connect discussions about its Asian identity with four concepts of Asia. The first such concept is a European idea of Asia and Asian law, which defines a presumably homogeneous Asia on the basis of its level of difference from Europe. The next three concepts are concepts that emerged from Asian debates. Two off them explicitly invoke leadership of one country. A sinocentric concept of Asian law attempts to reinvigorate concepts from the time of Chinese dominance of East Asia prior to colonization. A Japanese concept of Pan-Asian law by contrast is built on Japanese modernization, which in turn was influenced by Europe. Finally, the idea of Asian values attempts to avoid leadership by any one country in favor of a truly Asian identity. None of these three chapters can fully avoid the central problems of the European projection: they are all defined by their relation to the West, and all of them invoke a relative degree of homogeneity as basis for identity. I close, therefore, with an alternative concept of Asia “as method” that attempts to overcome these two shortcomings and may offer a more promising path towards an idea of Asian law.

Böckenförde Theorem and Burqa Ban

Abstract: When France and Belgium banned face veils in 2010 and 2011, they were the first European countries to do so in a comprehensive matter. Now Austria has its own ban, Denmark is on track to have one too, and several other countries are toying with the idea. Such bans are often considered incompatible with the rights of veil wearers (especially Muslim women). Less prominent is the question whether such bans are incompatible with the modern state. Such a critique can be grounded on the work of the leading German constitutional law scholar Ernst-Wolfgang Bockenforde and his famous dictum, according to which “[t]he liberal, secularized state draws its life from preconditions it cannot itself guarantee.” For Bockenforde, this means that headscarves, a different type of veil, cannot be banned—not because this would violate a woman's rights, but because it would undermine the very character of the state itself. The article transposes this argument from the German discourse over headscarves to the European discourse over face veils. It demonstrates the potential of Bockenforde's dictum for the face veil debate, but also its limitations.