Portrait of Professor Geoffrey Samuel

Professor Geoffrey Samuel

Professor of Law

About

  Professor of Law  

Publications

Article

  • Samuel, G. (2017). Have There Been Scientific Revolutions in Law? Journal of Comparative Law:186-213.
  • Samuel, G. (2017). Should jurists take interests more seriously? Law and Method [Online] 2017. Available at: http://dx.doi.org/10.5553/REM/.000023.
  • Samuel, G. (2014). Is Legal Reasoning Like Medical Reasoning? Legal Studies [Online] 35:323-347. Available at: http://dx.doi.org/10.1111/lest.12063.
    In this paper, stimulated by the publication some years ago in France of a small book on medical reasoning, legal and medical reasoning are compared. The question that is asked is whether the differences between the two types of reasoning will permit one to have a better understanding of some of the methodological and epistemological issues associated with legal reasoning. It will be argued that although medical and legal reasoners do share things in common, legal reasoning, perhaps unlike medical reasoning, is actually concerned less with the explanation or even comprehension of texts or the facts of a dispute (explicatio causæ) and more with what will be termed the ‘manipulation’ of facts (accommodatio factorum). Lawyers purify and (or) construct ‘virtual’ factual situations out of perceived ‘actual’ factual situations in order to make them conform or not conform in an isomorphic way with factual situations implied by a legal text or precedent. Medical reasoning is equally complex but facts are read in a different way.
  • Samuel, G. (2012). Is Legal Knowledge Cumulative? Legal Studies 32:448-479.
  • Samuel, G. (2009). Can Legal Reasoning be Demystified? Legal Studies 29:181-210.
    The purpose of this paper is to examine a new work on legal reasoning by two American jurists whose aim is to ‘demystify’ it. The paper will not dispute the authors' central thesis that the existence of special forms of reasoning in law is false, but it will argue that a social science epistemologist would find their analysis at best inadequate. It will be argued that legal reasoning is not just reasoning from and about rules; it is also reasoning about facts and about the construction of factual situations. Consequently, it is vital for anyone wishing to have a serious understanding of how lawyers reason to have a familiarity with how social scientists, and indeed natural scientists, reason about fact. Such reasoning certainly involves induction, deduction and analogy but these methods are by no means adequate as an epistemological framework; schemes of intelligibility and paradigm orientations are equally important. If there is one paradigm orientation that is special to certain disciplines like theology and law, it is the authority paradigm, an orientation that must be distinguished from an inquiry paradigm. The problem with works by legal philosophers on legal reasoning is, it will be implied, that they are often conducted from within the authority paradigm and that this, in the end, prevents any demystification.
  • Samuel, G. (2009). Interdisciplinarity and the Authority Paradigm: Should Law Be Taken Seriously by Scientists and Social Scientists? Journal of Law and Society 36:432-459.
  • Samuel, G. (2008). Is Law Really a Social Science? A View from Comparative Law. Cambridge Law Journal [Online] 67:288-321. Available at: http://dx.doi.org/10.1017/S0008197308000378.
    The question to be pursued in this article has the merit of simplicity even if the response to it proves somewhat complex. The question is this: is law truly a social science? This may seem an odd question to many in the common law world since it is not uncommon, at least in England, for law schools to find themselves located in faculties of social science. Moreover there are a number of individuals, perhaps a considerable number in common law departments and faculties throughout the world, whose research and scholarship undoubtedly qualifies as social science research. So, before one can even begin to reflect upon the question to be pursued in this paper, a preliminary question must first be asked. Why should one wish even to pose the question?
  • Samuel, G. (2007). Taking Methods Seriously: (Part Two). Journal of Comparative Law 2:210-237.
  • Samuel, G. (2007). Taking methods Seriously (Part One). Journal of Comparative Law [Online] 2:94-119. Available at: http://www.thejcl.com/.
    This article questions whether those outside law should take law seriously as an intellectual discipline capable of contributing to the development of epistemological thinking in the natural and social sciences. The discipline is approached from a diachronic and synchronic position with emphasis on the civil law tradition. It will be shown that the governing paradigm in legal studies has always been the ‘authority paradigm’, which results in law being closer to theology than to the social sciences. Its principal actors (judges) make assertions free from the normal constraints of scientific method; accordingly, the idea of a ‘legal science’ (imported into the common law tradition after 1846) must be treated with great caution. It is not a science dedicated to enquiring about the nature of the physical world, society or social relations. Its epistemological development remains trapped in the seventeenth and eighteenth centuries: thus, as a discipline, law has little to offer other social sciences.
  • Samuel, G. and Vigneron, S. (2007). Vers un modele europeen de responsabilite du fait des autorites publiques. Revue Internationale de Droit Comparé:833-855.
  • Samuel, G. (2006). Droit comparé et théorie du droit. Revue Interdisciplinaire d'Études Juridiques 57:1-35.

Book

  • Samuel, G. (2016). A Short Introduction to Judging and to Legal Reasoning. [Online]. Cheltenham: Edward Elgar. Available at: http://dx.doi.org/10.4337/9781785365928.
    This Short Introduction looks at judging and reasoning from three perspectives: what legal reasoning has been; what legal reasoning is from the view of judges and jurists themselves (the internal view); and what legal reasoning is from the view of a social scientist epistemologist or humanities specialist (the external view). Combining cases and materials with original text, this unique, concise format is designed for students who are starting out on their law programmes, as well as for students and researchers who would like to examine judging and legal reasoning in more depth.
  • Samuel, G. (2014). An Introduction to Comparative Law Theory and Method. Hart Publishing.
  • Samuel, G. (2013). A Short Introduction to the Common Law. Edward Elgar.
  • Samuel, G. (2010). Law of Obligations. Edward Elgar.
    This comprehensive book presents the English law of contract and tort in the context of a European law of obligations. "Law of Obligations" gives an overview of contract and tort as well as an introduction to the law of obligations in the civil (or continental) law tradition. The book is considered an extensive introduction to the western law of obligations, but with an emphasis on English law. Arising out of the analysis of the two legal traditions, Geoffrey Samuel raises questions about the appropriateness of importing the obligations category into the common law. He also highlights what has been termed the 'harmonisation debate'; ought the law of obligations to be harmonised at a European - or even international, level? The debate raises some fundamental issues not just about legal traditions and about the law of obligations itself, but also about comparative law theory and methodology. Designed with English law students and jurists in mind, this book will be an invaluable tool for researching contract, tort and the law of obligations. The book is an original contribution not only to European private law but equally to comparative legal studies.
  • Samuel, G. (2008). Tort: Cases and Materials, 2nd Edition. London: Sweet and Maxwell.
    Offers a concise and focused way to ensure students gain an understanding of the most important areas of tort. This text explains the importance of extracts, showing how materials might be used in a problem-solving context. It also draws upon the growing European influences that the judges themselves are finding of importance in difficult cases.
  • Samuel, G. and Legrand, P. (2008). Introduction au Common Law. Editions La Decouverte.
  • Samuel, G. (2007). Contract Law: Cases and Materials. London, UK: Sweet & Maxwell.

Book section

  • Samuel, G. (2017). Contract and the Comparatist: Should we think about Contracts in terms of 'Contracticles'? in: Monateri, P. G. ed. Comparative Contract Law. Edward Elgar Publishing, pp. 67-94. Available at: http://www.e-elgar.com/shop/comparative-contract-law.
  • Samuel, G. (2016). Imitation of Life: Resonances Between Law and Fact and Fact and Law. in: Taekema, H. S., van Klink, B. and de Been, W. eds. Facts and Norms in Law: Interdisciplinary Reflections on Legal Method. Cheltenham: Edward Elgar, pp. 53-81.
  • Samuel, G. (2015). Legal Reasoning and Argumentation. in: Wright, J. ed. International Encyclopedia of the Social & Behavioural Sciences. Elsevier.
  • Samuel, G. (2015). Comparative Law and the Courts: What Counts as Comparative Law? in: Andenas, M. and Fairgrieve, D. eds. Courts and Comparative Law. Oxford: Oxford University Press, pp. 54-65. Available at: https://global.oup.com/academic/product/courts-and-comparative-law-9780198735335?cc=gb&lang=en&.
  • Samuel, G. (2015). Comparative Law as Resistance. in: Muir Watt, H. and Fernández Arroyo, D. P. eds. Private International Law and Global Governance. Oxford: Oxford University Press, pp. 23-33. Available at: https://global.oup.com/academic/product/private-international-law-and-global-governance-9780198727620?cc=gb&lang=en&.
  • Samuel, G. (2014). Is Law a Fiction? in: Del Mar, M. and Twining, W. eds. Legal Fiction in Theory and Practice. Springer.
  • Samuel, G. (2014). What is Legal Epistemology? in: Adams, M. and Heirbaut, D. eds. The Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke. Hart Publishing, pp. 23-36.
  • Samuel, G. (2013). Comparative Law and its Methodology. in: Research Methods in Law. Routledge, pp. 100-118.
  • Samuel, G. (2013). Qu'est-ce que le raisonnement juridique? in: Chérot, J. -Y. et al. eds. Le droit entre autonomie et ouverture : Mélanges en l’honneur de Jean-Louis Bergel. Bruylant, pp. 449-470.
  • Samuel, G. (2012). All that Heaven Allows: Are Transnational Codes a ‘Scientific Truth’ or Are They Just a Form of Elegant ‘Pastiche’? in: Monateri, P. G. ed. Methods of Comparative Law. Edward Elgar, pp. 165-191.
  • Samuel, G. (2012). Common Law. in: Smits, J. M. ed. Elgar Encyclopedia of Comparative Law (2nd ed). Edward Elgar, pp. 169-190.
  • Samuel, G. (2011). La collégialité et les juridictions anglaises. in: Hourquebie, F. ed. Principe de collégialité et cultures judiciaires. Bruylant, pp. 179-197.
  • Samuel, G. (2011). Does One Need an Understanding of Methodology in Law Before One Can Understand Methodology in Comparative Law? in: Van Hoecke, M. ed. Methodologies of Legal Research. Hart Publishing, pp. 177-208.
  • Samuel, G. (2011). What is in an Index? A View from a European Orientated Lawyer. in: Barnard, C. and Odudu, O. eds. The Cambridge Yearbook of European Legal Studies. Cambridge: Hart Publishing, pp. 333-363.
  • Samuel, G. (2011). Classification of contracts: A view from a common lawyer. in: Santos, F. J. A., Baldus, C. and Dedek, H. eds. Vertragstypen in Europa: Historische Entwicklung und europäische Perspektiven. Sellier, pp. 117-152.
  • Samuel, G. (2009). Form, Structure and Content in Comparative Law: Assessing the Links. in: Cashin-Ritaine, E. ed. Legal Engineering and Comparative Law. Schulthess, pp. 27-50.
  • Samuel, G. (2009). Vers un droit privé européen: un regard anglais – quelques difficultés épistémologiques. in: Moore, B. et al. eds. Convergence, concurrence et harmonisation des systèmes juridiques : Les journées Maximilien-Caron 2008. Montreal: Thémis, pp. 137-152.
  • Samuel, G. (2009). Depasser le fonctionnalisme. in: Legrand, P. ed. Comparer les droits, resolument. Presses Universitaires de France, pp. 405-430.
  • Samuel, G. (2009). Western Law of Obligations. in: Bussani, M. and Werro, F. eds. European Private Law: a Handbook. Stampfli Publishers Ltd et al, pp. 129-159.
  • Samuel, G. (2008). Quelques observations sur la convergence actuelle des méthodes de raisonnement et des styles législatifs. in: Robin-Olivier, S. and Fasquelle, D. eds. Les échanges entre les droits, l’expérience communautaire. Brussels: Bruylant.

Forthcoming

  • Glanert, S. and Samuel, G. (2019). Rethinking Comparative Law. Cheltenham: Edward Elgar.
    Given globalization, transnationalism and postcolonialism, not to mention the Europeanization of laws, every law student and every lawyer is bound to encounter foreign law in the course of her or his professional life. Increasingly, legislators show themselves open to the influence of foreign legal ideas in the legislative process. Also, many appellate courts are prepared to refer to foreign law in their opinions. At least as importantly perhaps, private parties often enter into legal arrangements, such as contracts or wills, featuring a foreign dimension. In sum, nowadays, foreign law is everywhere and cannot be circumvented.

    Over the past decades, the field commonly known as ‘comparative law’, which broadly speaking addresses engagement with foreign law and the comparison of laws, has significantly expanded. The multiplication of journals, the proliferation of scholarship and the creation of courses or summer schools specifically devoted to comparative law attest to the increasing popularity of comparative law. Within the Western legal tradition, the dominant position in comparative law has long been assumed by Konrad Zweigert and Hein Kötz, two widely influential German legal scholars. For over four decades, Zweigert and Kötz’s textbook, Introduction to Comparative Law, transl. by Tony Weir, 3rd ed. (Oxford: Oxford University Press, 1998), has governed much of the research undertaken in the field of comparative law and has defined, politically and otherwise, what kind of comparative legal research is to be regarded as ‘good comparison’. Their self-styled ‘functionalist’ method, grounded on a black-letter approach to law, has proved particularly authoritative. In recent years, however, a minority of authors have mobilised cultural studies as well as economic, literary and philosophical theories with a view to highlighting the shortcomings of orthodox comparative legal theory. Undoubtedly, the application of such perspectives to the field of comparative law offers fresh and crucial insights into the theory and practice of comparative law.

    Problematically, though, even the most recent critical literature in the field still fails to address a certain number of key issues arising in comparative law. For example, the task of the comparatist is to explain, by making use of her or his language, a foreign law usually formulated in a different language. Specifically, the comparatist is frequently asked to translate various kinds of legal texts, such as treaties, statutes, judicial decisions, contracts and scholarship from one language into another. Very often, the active or passive knowledge of a foreign legal language and culture is regarded as a sufficient condition for the translation of foreign legal materials. Indeed, the vast majority of comparatists either ignore or underestimate the obstacles standing in the way of every attempt at translation even as, within translation studies, specialists have long acknowledged that, properly speaking, translation is impossible or, at any rate, that translation effectively means transformation. In a context where the question of understanding proves of the utmost importance to lawyers working on the international scene the matter of the feasibility of translation needs to be probed, whether theoretically (can it be done?) or practically (how to do it?).

    This co-authored book wishes to rethink comparative law by providing both students and lawyers with the intellectual equipment allowing them to approach foreign law in a meaningful way. The book addresses a range of topics illustrating the contemporary relevance of comparative law. Further, it heightens sensitization to the singularity of foreign legal cultures and it invites familiarization with key aspects of the common-law and civil-law traditions which have defined a significant range of legal cultures worldwide over the past centuries. Operating from an interdisciplinary standpoint, the book also offers an introduction to deconstruction, hermeneutics, linguistics and to translation studies with reference to legal interactions on the international scene. Throughout, the book uses concrete examples issuing from a number of different national laws, including Canadian, English, French, German and US law. At all times, the book prompts in-depth epistemological reflection upon the possibilities and limits of cross-border legal interaction. In this way, it clearly distinguishes itself from the available literature in the field.
  • Samuel, G. (2018). What is (or perhaps should be) the Relationship between Legal History and Legal Theory? Comparative Legal History.
  • Samuel, G. (2016). Rethinking Legal Reasoning. Cheltenham: Edward Elgar.