5/23/2017

What ‘comparative law’ means

• The words suggest an intellectual activity with
law as its object and comparison as its
process.
• ‘comparative law’ is the comparison of the
different legal systems of the world.
• Comparative law as we know it started in paris
in 1900, the year of the World Exhibition by
French scholars Edouard Lambert and
Raymond Saleilles

• Man was trying to break out of this local

confines and peaceably to master the world
and all that was in it. Lawyers were effected by
this spirit; merely to interpret and elaborate
their own system no longer satisfied them.
• A world law must be created – not today,
perhaps not even tomorrow – but created it
must be, and comparative law must create it
(Lambert).

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• Comparative law must resolve the accidental

and divisive deference in laws of peoples at
similar stage of cultural and economic
development, and reduce the number of
divergences in law, attributable not to the
political, moral, or social qualities of different
nations but to historical accident or to
temporary or contingent circumstance.

• And permits us to catch sight, through the differences

in detail, of the grand similarities and so to deepen our
belief in the existence of a unitary sense of justice.
• It would be greatly good if pride of place in academic
studies were accorded to comparative private law, the
heartland of all comparative law. If clear and consistent
general principles of law were established, this would
promote international trade and advance the general
standard of living, and if lawyers were induced to look
beyond their borders, international exchange would
increase.

• Comparative lawyers compare the legal

system of different nations. This can be done
on a large scale or on a smaller scale.
• To compare the spirit and style of different
legal systems, the methods of thought and
procedures they use, is sometimes called
macrocomparison.

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• Instead of concentrate methods of handling legal

material, procedures for resolving and deciding
disputes, or the role of those engaged in the law.
• For example, one can compare different
techniques of legislation, styles of codification,
and methods of statutory interpretation, and
discuss the authority of precedents, the
contribution made by academics to the
development of law, and the diverse styles of
judicial opinion.

• Microcomparison, by contrast, has to do with

specific legal institutions or problems, that is,
with the rules used to solve actual problems
or particular conflicts of interest.
• When is a manufacturer liable for the harm
caused to a consumer by defective goods?
What rules determine the allocation of loss in
the case of traffic a accidents?

• What factors are relevant for determining the

custody of children in divorce cases? If an
illegitimate child is disinherited by his father
or mother, what rights does he have? The list
of possible examples is endless.

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• The dividing line between macrocomparison

and microcomparison is admittedly flexible.
Indeed, one must often do both at the same
time, for often one has to study the
procedures by which the rules are in fact
applied in order to understand why a foreign
system solves a particular problem in the way
it does.

• In order to understand what comparative law

really is, it is as well to distinguish it from
related areas of legal science, that is, to show
what comparative law is not.

• Since comparative law necessarily has to deal

with foreign law, it must be distinguished from
those other branches of legal science which have
to do mainly or occasionally with other legal
systems.
• The neighboring areas of legal science which also
deal with foreign law, and from which
comparative law must be distinguished, are
private international law, public international
law, legal history, legal ethnology, and finally
sociology of law.

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Comparative Law and Private International Law

• These two areas are, on the face of it, entirely

distinct, but they interact. Private international
Law, or conflict of Laws, is a part of the positive
national law, while comparative law seems to
present itself as a science pure.
• Private international law tells us which has
foreign connections; it contains rules of
competence which determine which specific
national law is to be applied and which lead to
its application.

• Comparative law, on the other hand, deals

with several legal orders at the same time,
and does so without having any practical aim
in view

Comparative Law and Public International Law

• Public international law, or the law of nations,

is essentially a supranational and global
system of law. Comparative law is essential to
the understanding of ‘the general principles
of law recognized by civilized nations’ which
are laid down as being one of the sources of
public international law.

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• The recognition of such general principles is

rendered more difficult by the basic differences
of attitude between the developed industrial
nations and those in process of development.
• Comparative law is to discover which solution of
a problem is the best, and perhaps one could
include as a ‘general principle of law’ the solution
of a particular problem which emerges from a
proper evaluation of the material under
comparison as being the best.

• The methods of comparative law can also be

extremely useful in interpreting treaties, and
in helping to understand some of the concepts
and institutions of customary international
law.

Comparative Law and Legal History

• All legal history involves a comparative

element: the legal historian cannot help
bringing to the study of his chosen system, say
Roman law, the various preconceptions of the
modern system he is familiar with; thus he is
bound to make comparisons, consciously if be
is alert, unconsciously if he is not.

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Comparative Law and Sociology

• After the discussion in resent years of the relation
between sociology of law and comparative law, it
now seem to be generally a greed that the two
disciplines not only have a great deal to learn
from each other but also use much the same
methods.

• Sociology of law aims to discover the causal

relationships between law and society. It seek to
discover pattern from which one can infer whether
and under what circumstances law affects human
behavior and conversely how law is affected by social
change, whether of a political, economic,
psychological, or demographic nature. This is an area
where it is very difficult to construct theories, but if
one can support one’s theory with comparative data
from other nations and culture, it will be much more
persuasive.

• If comparative sociology of law can make use

of the experience and discoveries of
comparative law, comparative lawyer
undoubtedly have a great deal to learn from
legal sociologists. This is important, for what
one can call the definition of the problem.

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• Comparative lawyers have long know that only

rules which perform the same function and
address the same real problem or conflict of
interest can profitably be compared.
• They also know that they must cut themselves
loose from their own doctrinal and juridical
preconceptions and liberate themselves from
their own cultural context in order to discover
‘neutral’ concepts with which to describe such
problem or conflict of interest.