Comparative law

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, and Asian 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.

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)

(Charles-Louis de Secondat, Baron de la Brède et de Montesquieu) Montesquieu - The 'Father' of 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 his masterpiece De l'esprit des lois ([1]):

"[The political and civil laws of each nation] 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 [i.e. the French and English systems for the punishment of false witnesses] 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.'

Relationship with Other Legal Fields of Study

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 may contribute to legal theory by creating categories and concepts of general application. Comparative law may also provide insights into the problem of legal transplants, i.e. the transplanting of law and legal institutions from one system to another.

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?

Additional 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.

Proposed Classifications of Legal Systems

Arminjon, Nolde, and Wolff ^[1] 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:

1. 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
2. The German group
3. The Scandinavian group (comprising the laws of  Sweden,  Norway,  Denmark,  Finland, and  Iceland)
4. The English group (incl. England, the United States, Canada, Australia and New Zealand inter alia)
5. The Russian group
6. The Islamic group
7. The Hindu group

David ^[2] proposed the classificiation of legal systems, according to the different ideology inspiring each one, into five groups or families:

1. Western Laws, a group subdivided into the:
   • Romanogermanic subgroup (comprising those legal systems where legal science got formulated according to Roman Law), and the
   • Anglosaxon subgroup
2. Soviet Law
3. Muslim Law
4. Hindu Law
5. Chinese Law

Especially with respect to the aggregating by David of the Romanogermanic and Anglosaxon Laws into a single family, David argued that the antithesis between the Anglosaxon Laws and Romanogerman 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 Romanogermanic legal systems included those countries where legal science got formulated according to Roman Law, whereas common law countries are those where law got created from the judges.

The characteristics that he believed uniquely differentiate the Western legal family from the other four were:

• liberal democracy
• capitalist economy
• Christian religion

Zweigert and Kötz ^[3] 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 characteristic way of thought
• The different institutions
• The recognized sources of law
• The dominant ideology

Using the aforementioned criteria, they classify the legal systems of the world, in the following six families:

1. The Roman family
2. The German family
3. The Angloamerican family
4. The Scandinavian family
5. The family of the laws of the Far East ( China and  Japan)
6. The Religious family ( Muslim and Hindi law)

See also

• Legal systems of the world (Includes Links to Legal Systems of Specific Countries)

Relevant links

• The Australian Institute of Comparative Legal Systems

References

1. ^ (Traité de droit comparé - in French; Paris 1950-1952)
2. ^ (Traité élémentaire de droit civile comparé: Introduction à l'étude des droits étrangers et à la méthode comparative - in French; Paris 1950)
3. ^ (An Introduction to Comparative Law, translation from the Germany original: T. Weir, 3rd edition; Oxford, 1998)

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