Abstract
The term comparative law does not denote a specific branch of positive law, or a body of rules governing a particular field of social activity. When we speak, for instance, of the comparative law of marriage, we do not refer to a set of rules regulating relations between husband and wife; we merely refer to the fact that the marriage laws of two or more countries have been subjected to a process of comparison with a view to ascertaining their differences and similarities. The term ‘comparative law’ denotes, therefore, a form of study and research whose object is the comparison of legal systems with a view to obtaining knowledge that may be used for a variety of theoretical and practical purposes. In the words of Zweigert and Kötz, comparative law is “an intellectual activity with law as its object and comparison as its process.” Comparative law embraces: the comparing of legal systems with the purpose of detecting their differences and similarities; working with the differences and similarities that have been detected (for instance explaining their origins, evaluating the solutions utilized in different legal systems, grouping legal systems into families of law or searching for the common core of the systems under comparison); and the treatment of the methodological problems that arise in connection with these tasks, including methodological problems connected to the study of foreign law. As the above definitions suggest, the scope of comparative law is extremely broad and its subject-matter can never be treated in an exhaustive manner, for one can hardly imagine all the possible purposes and dimensions of legal comparison.
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Notes
- 1.
Zweigert and Kötz (1987), p. 2.
- 2.
- 3.
Although the terms ‘comparative law’, droit comparé, diritto comparato, derecho comparado, Rechtsvergleichung are generally understood to refer to the branch of knowledge concerned with the comparison of legal systems, the name ‘comparative law’ has semantic nuances. There are considerable divergencies to be observed not only among the various languages, but even within a single language. Some scholars who regard comparative law as empty of content of its own, draw attention to the fact that in some languages the relevant subject is referred to as ‘comparison of laws’ (Rechtsvergleichung) or ‘law compared” (droit comparé) and argue that the term ‘comparative law’ should be abandoned. On the other hand, those who regard comparative law as an independent discipline with its own special subject consider the name ‘comparative law’ appropriate. According to K. Kerameus: “Because law is not only a reference but is the very field of our study, the traditional term of comparative law is fully justified and suitably reflects the field of our scholarly endeavours.” “Comparative Law and Comparative Lawyers: Opening Remarks”, (2001) 75 Tulane Law Review 859, at 867. And see Örücü (2004), p. 14.
- 4.
Professor Hart draws a distinction between primary rules of obligation, which are concerned with what people must do, requiring a certain conduct and making it obligatory (for example, the rules of criminal law); and secondary rules, which enable people to change rules (e.g. by legislation) and bring rules into operation (e.g. by contract). Moreover, there is the secondary rule of recognition, which enables us to recognize an activity as law. Consider Hart (1961), pp. 77–96. According to Merryman (1998), p. 773.
- 5.
Related to the term ‘legal system’ is the term ‘legal order’ (Rechtsordnung, ordre juridique). When the latter term is used, emphasis is attached to the role played by the human agency in the formation and development of law.
- 6.
Bernhöft (1878), pp. 36–37. And see Rothacker (1957), p. 17. According to Giorgio del Vecchio, “many legal principles and institutions constitute a common property of mankind. One can identify uniform tendencies in the evolution of the legal systems of different peoples, so that it may be said that, in general, all systems go through similar phases of development.” “L’ unité de l’ esprit humain comme base de la comparaison juridique”, (1950) 2 (4) Revue internationale de droit comparé, 686 at 688.
- 7.
See Dannemann (2019), pp. 390, 392.
- 8.
- 9.
See in general Gutteridge (1946), p. 4. See also his Le droit comparé, Introduction à la méthode comparative dans la recherche juridique et l’étude du droit (Paris 1953), 20.
- 10.
H. C. Gutteridge, ibid at 10. And see Langrod (1957), pp. 363–369.
- 11.
According to J. H. Merryman, a distinction may be made between ‘professional’ and ‘academic’ comparative law scholarship. By professional comparative law scholarship, he means “the sort of work that is principally of interest and value to lawyers, judges and legislators professionally engaged in dealing with concrete legal questions. Academic [comparative law] can be divided into humanistic and scientific. Humanistic scholarship is in the tradition of philosophical, historical and literary description, narrative, interpretation, analysis and criticism. … scientific [refers to] scholarship that seeks to educe generalizations that can be used as the basis for explanations of and predictions about social-legal behavior. These are categories of convenience and are not mutually exclusive.” (1998) 21 Hastings International and Comparative Law Review 771, 772.
- 12.
Among the leading scholars who advocated the intrinsic value of comparative law as a science and as an academic discipline is Ernst Rabel. According to him, “comparative law can release the kernel of legal phenomena from the shell of their formulae and superstructures and maintain the coherence of a common legal structure.” Cited in Coing (1956), pp. 569, 670. On the view that comparative law constitutes both a science and a method consider Winterton (1975), p. 69.
- 13.
As the German jurist Anselm von Feuerbach has observed, “The richest source of all discoveries in every empirical science is comparison and combination. Only by manifold contrasts the contrary becomes completely clear; only by the observation of similarities and differences and the reasons for both may the peculiarity and inner nature be recognized in an exhaustive manner. Just as the comparison of various tongues produces the philosophy of language, or linguistic science proper, so does a comparison of laws and legal customs of the most varied nations, both those most nearly related to us and those farthest removed, create universal legal science, i.e., legal science without qualification, which alone can infuse real and vigorous life into the specific legal science of any particular country.” Blick auf die deutsche Rechtswissenschaft, Vorrede zu Unterholzner, Juristische Abhandlungen (München 1810), in Anselms von Feuerbach kleine Schriften vermischten Inhalts (Osnabrück 1833), 163. Cited in Hug (1932), p. 1054. Consider also Barreau (1995), p. 51.
- 14.
- 15.
Contemporary comparatists acknowledge the important relationship between law, history and culture, and proceed from the assumption that every legal system is the product of several intertwining and interacting historical and socio-cultural factors. Thus, Alan Watson defines comparative law as “the study of the relationship between legal systems or between rules of more than one system … in the context of a historical relationship. [The study of] the nature of law and the nature of legal development.” Legal Transplants: An Approach to Comparative Law (Edinburgh 1974; 2nd ed. Athens, Ga, 1993), 6–7.
- 16.
From the end of the nineteenth century English analytical jurisprudence focused increasingly on fundamental concepts of English law rather than of laws in general. A similar tendency towards particularism prevailed in the United States, where legal theory and literature concentrated mainly on American legal issues and institutions. The same tendency, although not always as pronounced, may be discerned in countries of Continental Europe where, after the rise of codification, legal science became associated with the construction of conceptual models and theories of legal reasoning and interpretation rooted in particular national systems of law.
- 17.
David (1988), p. 42 ff. And see the discussion in the chapter on the civil law tradition below.
- 18.
As J. H. Merryman has remarked, “There was a common body of law and of writing about law, a common legal language and a common method of teaching and scholarship”. The Civil Law Tradition, 2nd ed., (Stanford 1985), 9.
- 19.
The influential German Historical School of the nineteenth century challenged the natural law notion that the content of the law was to be found in the universal dictates of reason. It claimed that the law was a product of a people’s spirit (Volksgeist), just as much as was its language, and thus particular to every nation. According to Friedrich Carl von Savigny, a leading representative of the school, “positive law lives in the common consciousness of the people, and we therefore have to call it people’s law (Volksrecht). …[I]t is the spirit of the people (Volksgeist), living and working in all the individuals together, which creates the positive law.” System des heutigen römischen Rechts, Vol. I, (Berlin 1840), 14. And see, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (Heidelberg 1840), 8.
- 20.
This reflects the Aristotelian view of the legal order as a result partly of natural regularities and laws, and partly of the human will.
- 21.
Legal doctrine or legal dogmatics (Rechtsdogmatik) consists in the description of legal materials, such as statutes, precedents etc. Although an exposition of this kind may embody sociological, philosophical, moral, historical and other considerations, its focus is on the interpretation and systematization of valid law.
- 22.
This view of comparative law derives support from the notion, shared among comparatists, that comparison is meaningful only when the objects being compared share certain general features, for instance with respect to function, that can serve as a common denominator (tertium comparationis). See relevant discussion in the chapter on the comparative law method below.
- 23.
And see the discussion on the distinction between macro-comparison and micro-comparison in the chapter of the comparative law method below.
- 24.
J. H. Merryman draws a distinction between text-centered and system-centered comparative law scholarship. The former identifies law with authoritative texts and focuses on legal rules or norms—hence Merryman refers to this kind of scholarship as ‘rule-comparison’. In this respect, a legal institution is understood as a structured body or rules (e.g. the institution of property, the institution of contract etc.) and the term ‘legal system’ is used to denote the body of rules in force in a particular jurisdiction. From the viewpoint of system-centered comparative law scholarship, on the other hand, ‘legal system’ is understood to mean “the complex of social actors, institutions and processes referred to by members and observers of a society as ‘legal’ or ‘juridical’ or as directly related to or forming part of ‘law’ or ‘the legal system’ or the ‘juridical order’. These interrelated people, institutions and processes constitute a social subsystem that is the society’s legal system.” “Comparative Law Scholarship”, (1998) 21 Hastings International and Comparative Law Review 771, 775.
- 25.
- 26.
This common body of law is listed among the sources of public international law under the Statute of the International Court of Justice. See Chap. 2 below.
- 27.
Comparative Law (Deventer 1994), 21, 57. According to K. Zweigert and H. Kötz, in order for a study to be regarded as a comparative law inquiry there must be “specific comparative reflections on the problem to which the study is devoted.” This is best done by the comparatist stating the essential of foreign law, country by country, as a basis for critical comparison, concluding the exercise with suggestions about the proper policy for the law to adopt, which may require him to reinterpret his own system. An Introduction to Comparative Law (Amsterdam and New York 1977), 5. Consider also Reitz (1998), pp. 617, 618. For a closer look at the comparative method see Chap. 5 below.
- 28.
- 29.
Other disciplines closely connected with comparative law include legal anthropology, the economic analysis of law, comparative politics, comparative cultural studies and comparative linguistics. On the relationship between comparative law and public international law and comparative law and private international law see Chap. 2 below.
- 30.
Friedrich (1963), pp. 233–234.
- 31.
Maitland (1911), pp. 488–489.
- 32.
As commentators have observed, comparative legal history is ‘vertical comparative law’, while the comparison of modern systems is ‘horizontal comparative law’. Consider on this Ewald (1995), pp. 1889, 1944.
- 33.
For a closer look at the relationship between comparative law and legal history consider Gordley (2019), p. 754.
- 34.
Legal philosophy is referred to as jurisprudence in England and other common law countries. French and other civilian lawyers use the term jurisprudence as the equivalent of that which English lawyers call case-law.
- 35.
Continental European jurists draw a distinction between general theory of law and legal philosophy (in a narrow sense). The former focuses on the basic concepts, methods, classification schemes and instruments of the law; the latter examines the values that underpin legal systems, institutions and rules. As J.-L. Bergel remarks, “the general theory of law starts out from the observation of legal systems, from research into their permanent elements, from their intellectual articulations, so as to extract concepts, techniques, main intellectual constructions and so on; the philosophy of law, on the other hand, is more concerned with philosophy than law for it tends to strip law of its technical covering under the pretext of better reaching its essence so as to discover its meta-legal signification, the values that it has to pursue, its meaning in relation to an all-embracing vision of humanity and the world.” Théorie générale du droit, 2nd ed., (Paris 1989), 4. Furthermore, the term legal science (scientia juris) is used to denote positive law organized in such a way that it rationalizes, scientifically, law as an empirical object. See on this Orianne (1990), p. 73 ff.
- 36.
Much of contemporary British legal theory has its roots in the tradition of philosophical empiricism—the philosophical position that no theory or opinion can be accepted as valid unless verified by the test of experience. In this context normativity, both in law and morals, is understood and explained in terms of social practices observable in the world. The nineteenth century jurist John Austin, for example, defined law in terms of a command supported by a sanction and as presupposing the habitual obedience of the bulk of a community to the commands of a sovereign himself not habitually obedient to anyone else. See: The Province of Jurisprudence Determined (London 1832; repr. 1954). Similarly, H. L. A. Hart’s conception of legal obligation, although somewhat more complex, derived from the observation of people’s actual practices analysed in terms of ‘the internal point of view’ crucial to their comprehension of and participation to these practices. Consider: The Concept of Law (Oxford 1961; 2nd ed. 1997).
- 37.
Consider, e.g., Lawson (1977), p. 59.
- 38.
One might perhaps say that there is a dialectical relationship between concepts and problems.
- 39.
According to O. Weinberger, “Institutional facts…are in a peculiar way complex facts: they are meaningful normative constructs and at the same time they exist as elements of social reality. They can only be recognised when understood as normative mental constructs and at the same time conceived of as constituent parts of social reality. As a meaningful normative construct, the law is the object of hermeneutic analysis. The real existence of the legal system is conditioned by a multitude of different circumstances: the law exists in the consciousness of people, meshes in with interconnections of behaviour-patterns and expectations, has standing relationships towards social institutions and observable events.” MacCormick and Weinberger (1986), p. 113. Consider also Searle (1969), p. 51; Anscombe (1958), p. 69.
- 40.
As Richard Tur remarks, “The unity of general jurisprudence and comparative law consists in the unity of form and content; they are essential moments of legal knowledge, different sides of the same coin. General jurisprudence without comparative law is empty and formal; comparative law without general jurisprudence is blind and non-discriminating. General jurisprudence with comparative law is real and actual; comparative law with general jurisprudence is selective and clear-sighted.” “The Dialectic of General Jurisprudence and Comparative Law”, (1977) Juridical Review 238, 249. See on this Ewald (1995), p. 1889.
- 41.
For an interesting perspective on the relationship between comparative law and legal philosophy see Ewald (1998), p. 701.
- 42.
- 43.
One should note here that much of the comparative method is derived from the work of Max Weber, one of the founders of modern sociology. Weber’s theory has influenced the work of many distinguished comparatists, including Max Rheinstein, who declared that whenever comparative law delves into the social function of law, it becomes legal sociology. Rheinstein (1987), p. 28. For a closer look at Weber’s views on legal sociology see his Economy and Society, ed. G. Roth and C. Wittich, (Berkeley 1978), 641–900. And see White (2001), p. 40. For a closer look at the relationship between comparative law and legal sociology see Riles (2019), p. 772.
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Mousourakis, G. (2019). Introducing Comparative Law. In: Comparative Law and Legal Traditions. Springer, Cham. https://doi.org/10.1007/978-3-030-28281-3_1
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