The Importance of Board Independence (IVOR nr. 90) 2012/6.3:6.3 Aim and methodology

The Importance of Board Independence (IVOR nr. 90) 2012/6.3

6.3 Aim and methodology

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

The aim of this part is to gain an understanding of the way in which the United Kingdom, the Netherlands and Sweden deal with issues regarding independence. By making a comparison between these three countries, which have different characteristics, as is apparent from the previous section, the strong and weak points of the three countries are determined. Focusing solely on the Dutch situation would not take other views on independence into account and therefore it has been decided to look abroad. The aim is congruent with the aim of a legal comparison according to Zweigert and Kötz:

‘The primary aim of comparative law, as of all sciences, is knowledge. If one accepts that legal science includes not only the techniques of interpreting the texts, principles, rules, and standards of a national system, but also the discovery of models for preventing or resolving social conflicts, then it is clear that the method of comparative law can provide a much richer range of model solutions than a legal science devoted to a single nation, simply because the different systems of the world can offer a greater variety of solutions than could be thought up in a lifetime by even the most imaginative jurist who was corralled in his own system. Comparative law is an ‘école de vérité’ which extends and enriches the ‘supply of solutions’ and offers the scholar of critical capacity the opportunity of finding the ‘better solution’ for his time and place.’ (Zweigert and Kötz 1998: 15)

In order to achieve this aim a methodology should be chosen. Zweigert and Kötz state that there is no optimal methodology and that a stringent methodology has adverse affects, because it limits the manoeuvring area of the researcher (1998: 33-35). Therefore, they advocate the methodological principle of functionality. This entails asking questions that are stated without reference to one’s own legal system. A foreign system might have similar aspects regarding a certain problem, but the approach to that question is possibly totally different from one’s own system. ‘The principle of functionality applies here. Even experienced comparatists sometimes look for the rule they want only in the particular place in the foreign system where their experience of their own system leads them to expect it: they are unconsciously looking at a problem with the eyes of their own system.’ (Zweigert and Kötz 1998: 35) The next section discusses the legal questions that are answered for the United Kingdom, the Netherlands and Sweden. They are accompanied by reasons explaining why they are important for independence.

Deze functie is alleen te gebruiken als je bent ingelogd.