Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of internationalism, economic globalisation and democratisation.
History of Comparative Law
The birth of modern comparative law is generally attributed to Europe in the eighteenth century. However, prior to that, legal scholars (forerunners of today's comparativists and international lawyers) practiced comparative method. In Russian legal history, for instance, comparative method dates back to the sixteenth century.
Montesquieu's comparative law
According to the prevalent view, Montesquieu is regarded as the 'father' of comparative law. His comparative approach is obvious in the following excerpt from Chapter III of Book I of what many consider to be his masterpiece, De l'esprit des lois:
" should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another.They should be in relation to the nature and principle of each government; whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institutions.
They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs."
Also, in Chapter XI (entitled 'How to compare two different Systems of Laws') of Book XXIX he advises that
"to determine which of those systems is most agreeable to reason, we must take them each as a whole and compare them in their entirety."Yet another excerpt where Montesqieu's comparative approach is evident is the following one from Chapter XIII of Book XXIX:
"As the civil laws depend on the political institutions, because they are made for the same society, whenever there is a design of adopting the civil law of another nation, it would be proper to examine beforehand whether they have both the same institutions and the same political law."Continental Comparative Law
Birth of Comparative Law as a Discipline in America
Comparative law was really born of the ashes of WWII, brought to America by a legal scholar fleeing persecution in Germany, Rudolf Schlesinger. Schlesinger eventually became professor of comparative law at Cornell Law School helping to spread the discipline throughout the US.
Purpose of comparative law
Comparative law is an academic study of separate legal systems, each one analysed in its constitutive elements; how they differ in the different legal systems, and how their elements combine into a system.
Several disciplines have developed as separate branches of comparative law, including comparative constitutional law, comparative administrative law, comparative civil law (in the sense of the law of torts, delicts, contracts and obligations), comparative commercial law (in the sense of business organisations and trade), and comparative criminal law. Studies of these specific areas may be viewed as micro- or macro-comparative legal analysis, i.e. detailed comparisons of two countries, or broad-ranging studies of several countries. Comparative civil law studies, for instance, show how the law of private relations is organised, interpreted and used in different systems or countries.
It appears today the principal purposes of comparative law are:
- to attain a deeper knowledge of the legal systems in effect
- to perfect the legal systems in effect
- possibly, to contribute to a unification of legal systems, of a smaller or larger scale (cf. for instance, the UNIDROIT initiative)
Relationship with other legal subjects
Comparative law is different from the fields of general jurisprudence (legal theory), international law, including both public international law and private international law (also known as conflict of laws).
Despite the differences between comparative law and these other legal fields, comparative law helps inform all of these areas of normativity. For example, comparative law can help international legal institutions, such as those of the United Nations System, in analyzing the laws of different countries regarding their treaty obligations. Comparative law would be applicable to private international law when developing an approach to interpretation in a conflicts analysis. Comparative law may contribute to legal theory by creating categories and concepts of general application. Comparative law may also provide insights into the question of legal transplants, i.e. the transplanting of law and legal institutions from one system to another. The notion of legal transplants was coined by Alan Watson, one of the world's renowned legal scholars specializing in comparative law.
Also, the usefulness of comparative law for the sociology of law (and vice versa) is very large. The comparative study of the various legal systems may show how different legal regulations for the same problem function in practice. Conversely, sociology of law may help comparative law answer questions, such as: How do regulations in different legal systems really function in the respective societies? Are certain legal rules comparable? How do the similarities and differences between legal systems get explained?
Importance of comparative law
Comparative law is a very important discipline in communication between legal systems. It may provide the basis for the production of bilingual dictionaries that include the information necessary to make legal communication across borders successful. It also helps mutual understanding and the dispelling of prejudice and misinterpretation. In this globalising world, comparative law is important for it provides a platform for intellectual exchange in terms of law and it cultivates a culture of understanding in a diverse world. Furthermore, comparative law helps in broadening horizons for law reformers and legislators around the world. It can also be helpful in international relations in shaping foreign policies.
Classifications of legal systems
Arminjon, Nolde, and Wolff believed that, for purposes of classifying the (then) contemporary legal systems of the world, it was required that those systems per se get studied, irrespective of external factors, such as geographical ones. They proposed the classification of legal system into seven groups, or so-called 'families', in particular:
- The French group, under which they also included the countries that codified their law either in 19th or in the first half of the 20th century, using the Napoleonic code civil of year 1804 as a model; this includes countries and jurisdictions such as Italy, Portugal, Spain, Louisiana, states of South America (such as Brazil), Quebec, Santa Lucia, Romania, the Ionian Islands, Egypt, and Lebanon
- The German group
- The Scandinavian group (comprising the laws of Sweden, Norway, Denmark, Finland, and Iceland)
- The English group (incl. England, the United States, Canada, Australia and New Zealand inter alia )
- The Russian group
- The Islamic group (used in the Muslim world)
- The Hindu group
David proposed the classificiation of legal systems, according to the different ideology inspiring each one, into five groups or families:
- Western Laws, a group subdivided into the:
- Romano-Germanic subgroup (comprising those legal systems where legal science was formulated according to Roman Law - see also Civil law (legal system))
- Anglo-Saxon subgroup
- Soviet Law
- Muslim Law
- Hindu Law
- Chinese Law
Especially with respect to the aggregating by David of the Romano-Germanic and Anglo-Saxon Laws into a single family, David argued that the antithesis between the Anglo-Saxon Laws and Romano-German Laws, is of a technical rather than of an ideological nature. Of a different kind is, for instance, the antithesis between (say) the Italian and the American Law, and of a different kind that between the Soviet, Muslim, Hindu, or Chinese Law. According to David, the Romano-Germanic legal systems included those countries where legal science was formulated according to Roman Law, whereas common law countries are those where law was created from the judges.
The characteristics that he believed uniquely differentiate the Western legal family from the other four are:
- liberal democracy
- capitalist economy
- Christian religion
Zweigert and Kötz propose a different, multidimensional methodology for categorizing laws, i.e. for ordering families of laws. They maintain that, in order to determine such families, five criteria should be taken into account, in particular: the historical background, the characte
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