The Methodological Basis of the Legislation on the Flexible System

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  • 動的体系論による立法の方法論的基礎
  • ドウテキ　タイケイロン　ニヨル　リッポウ　ノ　ホウホウロンテキ　キソ

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Austrian legal scholar Walter Wilburg has developed what is known as a "flexible system". According to this system, a rule of law shall contain explicit reference to all the factors (principles) relevant in finding a solution in the particular case to which this rule is to be applied. This system was adopted for the first time in history in the New Austrian Draft on Liability Law. But this approach has given rise to criticism, because it may create a rather high level of uncertainty. In this paper, I examine the methodological grounding of the legislation on this flexible system by analyzing the discussion of the relationship between comparative law and legal dogmatics.

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