Category Archives: Articles

Can We Compare Fictional Laws?

Johanna Fournier*

Abstract: The ever-growing law and literature movement covers a range of artistic works and research in this field can discuss about any area of law. Nevertheless, only few attempts have yet been made to look at law and literature from a comparative law perspective. With regard to so-called fictional law, this may seem understandable, as only in rare cases will the reader or viewer be presented with a word-by-word print of the written law or case law of a fictional world. Yet, some (earthly) lawyers did make the effort and published scientific articles or even whole books on the laws in Star Trek’s universe, the Hobbits’ Middle-earth, or Harry Potter’s wizarding world.

Hence, the question arises of what exactly is fictional law and how do we identify it? Can we compare it like any other domestic or foreign law? Do we even want to do that? As the name implies, the essence of comparative law is to compare the law of different jurisdictions with one another. This can be done on several levels, for various purposes and through different methods. Is fictional law enough of a law to bear such a comparison? Can it even add value to the process?

(2025) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

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The Sad Future of Unjustified Enrichment in Brazil: Criticising the Brazilian Civil Code Reform

João Costa-Neto*

Abstract: Brazil’s current Civil Code is going through a legislative overhaul. As concerns unjustified enrichment, a comparative review of notably German and the common law reveals three of the reform’s shortcomings: (a) it failed to develop or propose a Brazilian taxonomy on unjustified enrichment law (and to comprehend and elaborate on its rationale); (b) it neglected to determine the measure of restitution in cases of unjustified enrichment by infringement of another’s right (reasonable fee or disgorgement of profits?); and (c) it proposed a redundant and implausible dies a quo (commencement date) for interest rates in cases of unjustified enrichment. While the Brazilian Civil Code should undergo comprehensive reform on unjustified enrichment law, the current proposals are heading in the wrong direction. Just as Brazilian legislators should seize the opportunity to correct old mistakes, they should avoid rushing into making several new ones.

(2024) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article

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Extending Social Protection for Migrants under the European Union’s Temporary Protection Directive: Lessons from the War in Ukraine

by Julia Motte-Baumvol*, Tarin Cristino Frota Mont’Alverne**, and Gabriel Braga Guimarães***

(2022) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

The war in Ukraine has brought about an unprecedented change in the way the European Union addresses migration-related issues. Following the invasion of Ukraine by Russian forces in late February 2022, the Council of the European Union adopted an Implementing Decision establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Council Directive 2001/55/EC, for the first time activating its temporary protection mechanism. While the Directive’s provisions reflect the founding principles of the European Union, the specific vulnerabilities of international migrants require suitable social provisions to afford them a standard of living as required to ensure their health and well-being for the duration of the protection provided by the Directive. The purpose of this article is to discuss the nature of the challenges arising from this first application of the ‘Temporary Protection Directive’, as well as the impact of these challenges on the Directive’s efficacy and on the scope of the protection for the displaced persons covered by it. It argues, first, that the joint interpretation of the Directive and the Council Decision significantly limits the personal scope of the protection, leaving certain categories of migrants behind. The paper then goes on to examine the Directive’s substance and suggests that a broad interpretation of its social protection provisions reveals new difficulties regarding the financing and sustainability of this protection and its sustainability.

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A Case for a Customary Right to Privacy of an Individual: A Comparative Study on Indian and other State Practice

by Arvind Pillai, Raghav Kohli

(2017) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article

Privacy as a concept has been hotly debated with regard to its role in an individual’s personal sphere since antiquity. The inception of international instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, along with institutions such as the United Nations, the Inter-American Commission on Human Rights and the Council of Europe, have made the codification of privacy a global concern. However, despite the inception of these institutions, several states have refused to codify and respect privacy as a fundamental right guaranteed to an individual. Thus, the need arises to highlight the development of a right to privacy as a customary right with the help of widespread state practice around the world. The most recent country to address the question of what status privacy holds in the legislative framework of that state is India. Here a unique identifying number is provided to each citizen based on biometric and demographic information. Known as the ‘Aadhaar’ scheme, this is giving rise to grave concerns about bodily integrity, informational self-determination, and decisional freedom. Indeed, a nine-judge Constitution Bench has just unanimously affirmed that the right to privacy is a fundamental right under the Constitution of India (Justice K S Puttaswamy (Retd.), and Anr v Union of India and Ors (2017) 10 SCC 1)
This article traces the evolution of the right to privacy in India, starting with an exploration of its conception in the Constituent Assembly Debates of the longest Constitution in the world. It attempts to ascertain the intent behind the exclusion of the right to privacy as a fundamental right from the Constitution, and analyses the contemporary position developed by the inconsistent jurisprudence of the Courts in India. Finally, by scrutinizing the practices of states from around the world, it argues that the right to privacy, and in particular data privacy, can be considered a binding principle of customary international law.
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Indigenizing Constitutionalism: A Critical Reading of “Asian Constitutionalism”

by Pranoto Iskandar *

(2017) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

The intense rise of the “Rest” has not only significantly wrought the real-world dimensions of the political and economic global landscape, which marked the power shift from the traditional West, but serenely introduced a different kind of intellectualism that challenges the Enlightenment based orthodoxies that have typically supported the liberal tradition. As a distinct scholarly strain, this vantage point of the “other” primarily rests on the binary self-proclaimed indigeneity, i.e. the native values of a society, that eventually challenges the legitimacy of the once well-established notions such as the rule of law, separation of power, secularism and constitutionalism that are the indisputable buttresses of democracy. In that light, this article situates the emerging ni debate on a distinct model of constitutionalism in Indonesia and the surrounding countries as the most current rebellious streak against the liberal constitutionalism. In so doing, more specifically, this article critically examines the application of the indigeneity-based arguments in the context of the discourse on constitutionalism. Rather than speaking for the population that they are purportedly representing, this article finds that the indigeneity-based arguments are no less alien than the liberal model that they despise as both culturally and sociologically estranged.
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Canada’s Statutory Privacy Torts in Commonwealth Perspective

by Chris D. L. Hunt* and Nikta Shirazian**

(2016) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article

In the last decade common law privacy torts have emerged in Ontario, England and New Zealand, and three recent law reform commissions in Australia have issued reports recommending similar actions in that country. Four Canadian common law provinces have had statutory privacy torts for decades (British Columbia, Manitoba, Saskatchewan and Newfoundland). These statutes offer little guidance as to when a privacy interest will arise and the case law does little to illuminate. Despite dozens of decisions, few are at the appellate level, and none have engaged in a detailed assessment of the factors relevant to assessing privacy claims in the tort context. In this paper, the authors undertake a thorough analysis of the Canadian case law, uncovering the principles latent in the existing jurisprudence, and critically examine them in light of the dynamic developments occurring in other parts of the Commonwealth. After exploring the structure and scope of these statutory torts in Part One, the authors propose that courts employ a reasonable expectation of privacy test, turning on the existence of 10 contextual factors that are elucidated in Part Two. The authors recommend that these factors be analyzed from two perspectives—the extent to which they serve to identify a privacy interest, and the extent to which they suggest an intrusion was sufficiently objectionable to warrant recognition of a prima facie claim. While the recommendations in this paper are often directed at a Canadian audience, they are informed by the comparative experience abroad and hence could be of real interest to jurists throughout the Commonwealth concerned with the principled operation of privacy torts.
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