Comparative Law

Black's Law Dictionary (10th ed. 2014) defines comparative law as "The scholarly study of the similarities
and differences between the legal systems of different jurisdictions, such as between civil-law and
common-law countries." In other words, particular rules or aspects of the law or legal system of various
jurisdictions are compared and contrasted.

Comparative Law vs Public International Law

• Public International Law: The law of nations; essentially a supranational and global system of law.
• Comparative Law: Essential to the understanding of the general principles of law recognized by
civilized nations. One of the aims of 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 particular
problem which emerges from a proper evaluation of the material under comparison as being the
best.
• Note: 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. The
rule pacta sunt servanda, the idea behind the clausula rebus sic stantibus, and the theory of abus de
droit in international law all have their roots in institutions of municipal private law, and it is only
through comparative law that they can be made to yield their full potential.

Comparative Law vs. Legal History

• Legal History: it studies systems consecutive in time; all legal history involves a comparative
element.
• Comparative Law: Studies legal systems coexisted in space.
• Note: Legal historians must often use the comparative method and that if the comparatist is to
make sense of the rules and the problems they are intended to solve he must often investigate their
history.

Comparative Law vs Sociology

Legal Tradition
• Defined by John Henry Merryman as referring not to legal rules on specific legal subjects but to the
culturally conditioned attitudes that underlie those rules and broadly, to ideas about the role of law
in the organization of the polity and in society and in inter-state relations.

East Asian Legal Tradition

• “East Asia” – best understood as a geocultural and geopolitical nation, in historic terms, as the
sphere of influence of Chinese culture, it refers primarily to China, Japan, South Korea, and Vietnam.
• Legal membership in a state is the very condition of having rights. In East Asian legal tradition,
membership in a polity was not conceptualized in terms of rights, nor did the state associated with a
relative absence of law.
• One component of classical East Asian civilization was a shared conceptual vocabulary of politics
and statehood.
• East Asian law region’s legal cultures are said to be non-legalistic and non-litigious.

Chinese Legal Traditions

• One of the hallmarks of the classical Chinese legal tradition is by characterizing Chinese law with the
simple epithet of Confucian – a shorthand for features that emphasized on family hierarchy,
 community, respect for authority, mediation, and harsh penalties. (Note: The first four elements are
Confucian, the one is not.)

Two Different Instruments of Social Control:

a) Li – moral suasion by ritual, associated with Confucians.
b) Fa – coercion by law, favoured by Legalist thinkers.

“Confucianization of Law”
• Process whereby the penal sanctions of fa were recruited to enforce the Confucian morality
embodied in the li. The moral code became mutatis mutandis the penal code.

Decentring Sinocentrism
• It is the historical ideology that China is the cultural center of the world, the classical Chinese
conception of political space was not that of a modern nation state (exclusive territorial jurisdiction;
each state’s law governs every square inch of its territory equally, and each state represents a
separate but homologous unit), classical Chinese state represented civilization as such, and its
power radiated in concentric squares from an imperial centre where its strength was at its
maximum, out towards increasingly “barbaric” peripheries where its cultural and political force
gradually declined. The Chinese emperor (dubbed as the Son of Heaven) was the only one true
sovereign who generously recognized lesser neighboring countries as long as they acknowledge his
ritual and cosmological superiority, by sending envoys to pay tribute to him (Tributary System).

Delocalizing China
• The Chinese tradition provided the language of statecraft for three civilizations: Korea, Japan, and
Vietnam which adopted the centralized Chinese state as a modern and borrowed the Chinese script
and the political vocabulary to which the script gave expression
• China’s classical legal tradition provided a common language of politics and a shared vocabulary of
statecraft which were interpreted and institutionalized in unique ways in different parts of East Asia.

Classical legal institution in Korea

Classical legal institution in Japan

Classical Legal Institutions in Vietnam

• For 2000 years, Vietnam was culturally within the sphere of East Asia classical civilization.
• For a millennium (111 BCE to 939 CE), northern Vietnam was under the control of the Chinese
empire.
• Like Japan, its officials adopted an interpretation of Confucianism in some way even more
fundamentalist than that of the Chinese bureaucracy.
• Vietnamese courts adopted key aspects of Chinese Weltanschauung along with Chinese legal and
political institutions. Its rulers took on the grandiloquent Sino-Vietnamese title of emperor.
• Although they adopted the examination system, this did not result in a generally meritocratic
system of recruitment on the Chinese model, included Confucian, Buddhist and Daoist elements.

What is the Ultimate Significance of the Arrival of the Western Legal Tradition in East Asia?
• It is that today it is the primary source of the language and vocabulary of politics and governance, in
much the same way as the classical East Asian legal tradition was earlier.
Legal Culture
• Defined by John Britt as a specific way in which values practices and concepts are integrated into the
operation of legal institutions and the interpretation of legal texts.

“Law as Culture”
• Law is more than just a set of rules and concepts, it is also a social practices within a legal
community. It is this social concept which determines the actual meaning of the rules and concepts,
their weight, their implementation, and their role in society.
• Understanding law implies a knowledge and an understanding of the social practice of its legal
community.
• Understanding this social practice presupposes a knowledge and an understanding of the general
culture of the society in which the legal community is embedded.

Four Broad Cultures or Cultural Families in the World

• Western Culture
• Asian Culture
• Islamic Culture
• African Culture

Two Principal Characteristics of Western Legal Culture:

1) Individualism
• It is a belief in the autonomy and total liberty of the individual in, and possibly against society, as
opposed to Collectivism, which is the idea of the submission of the individual to the community.
• Influenced by the Roman Empire, Greek philosophy, German idealistic philosophy (e.g. Kant
considered liberty as the only primary natural law), and internal developments in the Western legal
systems.
2 branches of social law developed under this characteristic:
a) Social Security – developed as a system of individual social insurance covering individual
risks instead of being a legally organized form of social solidarity.
b) Labor Law – the protection of individual interests of the worker dominates, and not the collective
interests of the group of workers.

2) Rationalism or Constructivism
• means the belief in the infinite possibilities available to the human spirit to know, structure and
master reality in an objective manner.
• Law as the organization of society is always a rationalization of social relationships; all organization
is, by definition essentially rational, if it really wants to organize, situates itself in 2 different levels:
(i) rules of behavior, (ii) procedures for the elaboration, the change and the abolition of rules, the
procedures to resolve conflicts, and the change and the abolition of rules, the procedures to
resolve, conflicts, and the creation of institutions to ensure that such procedures are complied with.
• Europeans believe that any conflict can exist before it comes to light; a conflict serves as an
illustration of a pre-existing condition.
• The vision of man in Western positive law is that of the rational man, the “pater familias”
Examples:
• In France and Belgium – in case of error in a contract, there is only acceptance of a rational error,
which means a mistake that a reasonable person would commit, which serves to fully invalidate the
contract;
• Under Article 1382 Code Napoleon, judges have decided that a person is at fault, when he knew, or
was presumed to know, that his act could cause some harm to a third party;
• Maxim that “law is written for those who are vigilant”

Asian Legal Culture

• Neither individualistic nor rationalist; mainly the influence of Confucianism
• Every persona has a right to respect the natural order of things
• Individualist rights are considered to be contrary to that natural order. An individual has no rights
but only duties towards the others and towards society. So, when an individual is claiming his rights,
he is damaging society because of his combative attitude.
• Perceived as being collective; this appears from the absence of the concept of individual rights and
the subordination of the individual to the community

Islamic Legal Culture

• No difference between law, morality and religion. All law is based on and the deducted from the
Qur’an, despite the doctrine in practice being generally considered as source of law, sometimes
even against the literal wording the Qur’an.
• Moral principles have more weight than rational, systematic legal constructions. Legislation is only
of secondary importance as a source of law, the Qur’an and customary law are much more
important.
• The individual justice of the Qadi, in which equity has more weight that a strict application of the
law, is essential to Islamic legal culture.
• Less individualistic than western one.
• Less rational because of the emphasis on religion, morals and individual justice.

African Legal Culture

• Neither individualistic, nor rationalistic. Law is rather a means of protection within. Law is not
conceived as a rational system of strict rules, but rather as a means of social control in order to keep
or to restore peace within a community.
• Under the concept of “bantou”, a person has to be a member of a group, his family, his tribe,
community, both as regards its content and its form. Rituals and palavers play important roles.
• Arbitration and mutual concessions are, as in Asian legal culture, more important than obtaining
one’s formal rights; disputes arising have to be solved by some form of arbitration; the winner-take-
all phenomenon gives way in Africa to a sort of give-a-little-get-a-little phenomenon.

Intra-cultural and Cross-cultural comparison

• Intra-cultural comparison: A comparison of legal systems within one and the same cultural family,
sharing a basic common conception of law; comparison of legal systems rooted in similar cultural
traditions and operating in similar socio-economic conditions.
• Cross-cultural comparison: Comparison across these four main legal cultural families becomes a
form of comparative law which draws heavily from a legal sociological or anthropological
perspective because every single legal rule, legal decision or other legal fundamentally different
conception of the law and its role in society.

Legal Families of the World

• Arminjon/Nodle/Wolff (Pierre Arminjon, Baron Boris Nolde, and Martin Wolff): Modern systems of
law should be grouped in accordance with their substance paying due heed to originality, derivation,
and common elements.
• 7 Legal Families: French, German, Scandinavian, English, Russian, Islamic, Hindu
• Esmein: Romanistic, Germanic, Anglo-Soxan, Slav, and Islamic.

Matters to be Taken Into Account in the identification of Legal Families or the Classification of a Legal
System:
1) Theory of legal families has so far proceeded as if the only law worth taking into account were private
law because comparatists have concentrated on private law.

2) Much also depends on the period of which one is speaking, the most of comparative law is not
positive law, but critical comparison; the division of the world’s legal systems into families, especially the
attribution of a system to a particular family, is susceptible to alteration as a result of legislation or other
events, and can be only temporary; one’s division is vulnerable to alteration by historical development
and change.

3) Objection has been raised to all the different connecting factors which have been used to put the legal
systems of the world into groups; one should inquire whether countries have the same legal culture; i.e.
whether its citizens have similar attitudes to law and similar expectations of it.

Crucial Factors for the Style of a Legal System or Legal Family:

1) Its historical background and development;
2) Its predominant and characteristic mode of thought in legal matters;
3) Especially distinctive institutions;
4) The kind of legal sources it acknowledges and the way it handles them; and
5) Its ideology.

Distinctive Mode of Legal Thinking

• Germanic and Romanistic families are marked by a tendency to use abstract legal norms, to have a
well-articulated system containing well-defined areas of law, and to think up and to think in juristic
constructions.
• English common Law is case-law, not enacted law.

Common Law Continental Law

Comes from the Court Comes from study
Great jurists of England were judges Professors
Lawyers predict how judges would deal with the Lawyers even and unforeseen ones and what
problem, given existing decision solution what the rule provides
Lawyers think concretely in terms of cases, the Lawyers think abstractly in terms of institutions
relationship of the parties, rights and duties
Lawyers feel their way gradually from case to case The system is conceived as complete and free from
gaps
Lawyers are skeptical of every generalization Lawyers delight in systematics
Lawyers think in pictures and so one could Lawyers operate with ideas which is often
continue dangerous enough

Legal Institutions
• Common Law Doctrines: doctrine of consideration, trust, concept of agency, many peculiarities of
the law of property such as the various degrees of property, the way a decedent’s estate passes to
an administrator or executor, and remarkable features of law of evidence.
• Romanistic Family Doctrines: concept of cause, action directo, action in rem verso (unjust
enrichment), institution of negotiorum gestor.
• Germanic Family Doctrines: general clauses which open the door to judge-made law, doctrine of
the abstract real contract, liability for culpa in contrahendo (fault in contracting: parties must act in
good faith in preliminary contract negotiations), doctrine of the collapse of the foundation of the
transaction, entrenched position of the institution of unjustified enrichment, and land register.

Hybrid Systems of Law

• An exclusive attribution to one or other is impossible, except with regard to particular areas of law
such as family law or inheritance law or commercial law.
• Countries: Greece, Louisiana, Province of Quebec, Scotland (private law is purely Scottish, public law
is taken from English law), South Africa, Israel, Philippines, Puerto Rico, People’s Republic of China.
Islamic Legal Tradition
• Islamic Legal System – consists of legal institutions, determinations and practices which arose from
a wide variety of cultural and geographic contexts that are as diverse as Arabia, Egypt Persia,
Bukhara, Turkey, Nigeria, Mauntania, Mali, Indonesia, and India.
• Presumed sacredness and immutability of the legal system, or the phenomenon of Qadi justice, are
products of turbulent political histories that constested and transformed Islamic law (Shari’a) into a
cultural and ideological symbol.
• Islamic law grew out of the normative teachings of Prophet Muhammad and his disciples.
• Early Muslim jurists borrowed and integrated legal practices from several sources, namely: Persia,
Mesopotamia, Egypt and other Roman provinces, Yemen, Arabia, and Jewish law.
• Ultimate point of Shari’a (in jurisprudential theory): to serve the well-being or achieve the welfare of
the people (tahqiq masalih al-‘ibad)

Sources of Islamic Law

• Formal Sources of Law: ideological construct; ultimate foundations (or sources of legitimacy)
invoked by jurists and judges as basis of legal legitimacy and authority; do not play a solely symbolic
role in Islamic jurisprudence; may legal debates and determinations originated or were derived
directly from the textual narrative of the Qur’an and Sunna.
• Practical Sources of Law: actual premises and processes utilized in legal practice in the process of
producing positive rules and commandments.

Functions of Comparative Law

1. offers the only way by which law can become international and consequently a science;
2. dissolves unconsidered national prejudices, and helps us to fathom the different societies and
cultures of the world and to further international understanding;
3. useful for law reform in developing countries; and
4. for the development of one’s own system the critical attitude it engenders does more than local
doctrinal disputes.

Practical Benefits of Comparative Law

1) Aiding the Courts – national and supranational courts
 The question is whether the interpreter of national rules is able or entitled to invoke a superior
foreign solution. It may be raised when the construction of a rule is doubtful, or where there is a lacuna
in the system which the judge must fill.
Comparative law interpretation: judge must look to the foreign rules which form the basis of the
provision to be applied, he must take account of how courts and writers abroad interpret it, and he must
make good any gaps in it with general principles of law which he has educed from the relevant national
legal systems.

2) Aiding the Legislature – national legislatures, supranational legislatures, harmonization, and

unification of law.
Good laws cannot be produced without the assistance of comparative law, whether in the form of
general studies or of reports specially prepared on the topic in question.
The reception of foreign legal system is not a matter of nationality, but of usefulness and need.
When proposing to adopt a foreign solution, ask: (i) whether it will work in the country where it is
proposed to adopt it. A solution tried and tested abroad may be adopted with modification because of
differences in court procedures, the powers of the various authorities, the working of the economy, or
the general social context into which it would have to fit.
Significant role in the preparation of projects for the international unification of law. The method
used is to draw up a uniform law on the basis of work by experts in comparative law and to incorporate it
in a multipartite treaty which obliges the signatories, as a matter of international law, to adopt and apply
the uniform law as their municipal law.

3) Aiding the legal practitioners and scholars

“Internationalization of Legal Life”
Comparative law offers the law student a whole new dimension; he can learn to respect the special
legal cultures of other people, understand his own law better, develop the critical standards which might
lead to its improvement, and learn how rules of law are conditioned by social facts and what different
forms they can take.
4) Supporting idealistic of Utopian political theories (not so much relevant at present)

Comparative Law as the Study of Transplants and Receptions

• Comparative study of transplants and receptions investigates contracts of legal cultures and
explores the complex patterns of change triggered by them. While the reception of Roman law in
Europe has been an academic subject t least since the 19th century, the treatment transplants and
receptions as general phenomena because a major topic in comparative only in the last three
decades of the 20th century, after the publication of pioneering studies that appeared before the
1970s.

Legal Transplant
• Also termed as “circulation of legal models,” “transplant of law,” “influence,” “inspiration,” “cross-
fertilization”
• Refers to the gradual diffusion of the law or the continuous nature of the process that sometimes
leads to legal change through the appropriation of foreign ideas.
• Those which use the language of borrowing, export diffusion, circulation or imposition; they tend to
accompany law as a working institution, as an instrument and as a technique of social engineering.

Reception
• Generally used for any and all transplants and circulations, but specifically refer to global legal
transfers. In the latter sense, the most important case of reception in the history of Europe is the
diffusion of Roman law that occurred when the subject was taught in universities during the
medieval and early modern ages; not limited to this case.

Best-Known Case of Diffusion of a Legal Model Across the Europe

• The re-birth of Roman law in the Middle Ages and its spread to most of the continental Europe and
Scotland.
• It started in Bologna, the first centre of university learning, around the year AD 1070, as an
intellectual attempt to bring to life an ideal model of law out of force and not sanctioned at first, by
any political power, Lawyers tried to elucidate the meaning of the sources, but they looked at them
primarily from the perspective of their contemporary reality. This fundamental attitude persisted
until the end of the ius commune in Europe and explains the subsequent transformations of the
interpretation and application of the Roman sources during that epoch.
• But, Roman law never completely prevailed and was not uniformly received throughout Europe
even in the lands that today form part of the civil law world. Canon law, feudal law, and the law
merchant evolved in parallel and were also part of the European landscape together with local
legislation and the customary laws of each region; but were infiltrated by Romanist learning through
the common Roman-law based education of lawyers.
• The reception of Roman law in Europe was not the result of free choice, but of historical necessity.

Diffusion of Civil Codes

• The period ius commune on the European continent came to an end when the movement to codify
the law produced a wave of legal change.
• The most influential codification in Europe was the French civil code enacted in 1804. Such
codification was first linked to the success of the Napoleonic army, ad was initially enacted in
countries annexed by France or brought under its rule.
• It entered into force in:
a) Netherlands → first in slightly altered version and then in its original form where it was
annexed in 1899
b) Belgium and Luxemburg → were French territories when it was introduced
c) Germany → enacted in the territories beyond the Rhine that were annexed
d) Switzerland → Canton of Geneva, and Bernese Jura (both parts of French Republic)
• French Code was also imitated without being imposed – Louisiana (Louisiana Digest of 1808), Lower
Canada (civil code of Lower Canada of 1866) until superseded by Quebec civil code of 1994.
• Modified versions were adopted in Netherlands (the Burgerlijk Wetbook of 1838), Italian civil code
of 1865 until superseded by the Codice civile of 1942
• French civil code and project of first Italian civil code were the basis of the Romanian codification
(1865)
• In Central and South America; advent was because most countries achieved independence when
the French civil code was practically the only model available (other than the Austrian codification
of 1811); Dominican Republic, Haiti, and Bolivia replicated the original text most closely.

Diffusion of German Civil Code

• While no other civil code has matched the French civil code in terms of foreign influence, German
civil code became as source of inspiration for the Japanese civil code. Japanese codification
provided the basis for the draft civil code of 1911 prepared in China during the last years of Qing
dynasty.
• South Korea, while under the rule of Japan, also came into contact with the German model via the
Japanese civil code.
• German codification influenced the present Greek civil code.
• Virtually every 20th century civil code that has a general part is indebted to the German model of
private law, in code form or otherwise.

Diffusion of Common Law

• Presence of the common law across the globe owes much to the growth of British trade and of
Britain as a world power.
• British colonies comprised a variety of territories; acquired by conquest or cession, and others by
night of first refusal (in the case of Australia).
• Territories colonized by GB without recognizing prior sovereignty were brought under the rule of the
common law unless the circumstances rendered this solution inappropriate.
• British policy concerning conquered or coded colonies was to leave the law that was previously
applicable in force, unless it was undesirable or repugnant from the British point of view.
• Similar pattern in the U.S.; after the creations of the Union, many of the federated States adopted
reception statutes receiving the English common law and Acts of Parliament as they existed as of a
certain date, provided that they were not contrary to federal or state constitutions or statutes.

Mixed Legal Systems

• Transplants and receptions have created, in some cases, mixed legal systems, i.e., systems that
exhibit features commonly associated with different legal traditions.

Factors of Legal Change

1. Imposition of law through violence in one form or another
- Result of military conquest.
2. Change produced by the desire to follow prestigious models
- Desire to have what other have especially if it is deemed superior.
3. Reform for the purpose of improving economic performance
- Programmes of legal reform launched by international institutions or within the framework of
international trade law agreements.

Legal Transplants / Transfers

• Referred to as “social engineering through law”

Can We Make a Success of Legal Transfers?

• Understanding why some laws remain a dead letter while others are transformed out of recognition
would require us to pay attention to the way the relationship or “fit” between law and society varies
culturally and thus overcome ethnocentric ideas about how law must fit society.

Different Processes or Cases of Legal Transfers

1. Cases where one country borrows or submits to new laws introduced from another society.
2. Processes involving the spread of standards, regulations or soft law.
-attempts at harmonization of private law within the EU; conventions on biodiversity, genetic
engineering or the internet; labour regulations by the ILO or international taxation agreements.
3. Cases where third cultures (arbitration for Paris or Zurich) reflect and further processes of
globalization of law.
Globalization of Law
• Globalization of private and public law involves legislative, judicial or other efforts to extend cross-
frontier trade and communication including e-commerce, the molding of “private” and “public” in
international trade litigation and the creation of regulation of “third spaces”

Comparative Law and Economics

• Essentially an attempt to explain the legal change through economic analysis
• One of the central tents of comparative law and economics is the idea that there is a competitive
market for the supply of law. Comparative law has reached the conclusion that, in many cases,
changes in a legal system are due to legal transplants. But the few attempts to explain the legal
transplants from one system to another have relied on the largely empty idea of prestige.
• Comparative law and economics explains the convergence of legal systems as a movement towards
efficiency. Every legal system or every component of it produces different legal doctrines or
techniques for the solution of a given problem.
• Comparative law and economics assumed that the more efficient legal theories and solutions would
spread around in a world with zero transaction costs; in such a world efficient legal solutions would
survive, while inefficient legal solutions would disappear.

Legal Origins Thesis

• The thesis that legal origin impacts economic growth and the common law is better for economic
growth than the civil law.
• Example: The Doing Business reports – cross-country comparisons including rankings on the
attractiveness of different legal systems for doing business – have the highest circulation numbers of
all World Bank Publications → have been successful at inciting legal reforms in many countries in the
world.

Under the LOT, two reasons for the Superiority of Common Law over the Civil Law:
• Political Channel → judges are said to be more independent in common law than in civil law
systems, so that the government has less influence on market developments.
• Adaptability Channel → the common law, with its foundation in the development of case law rather
than in legislative texts, is deemed more adaptive to changing societal requirements.

Legal Families
• A core element of the legal origins thesis is the distinction between the civil and common law
families.
• This distinction plays multiple roles:
1. Membership in a legal family is viewed as an explanatory factor, as a cause for past and
present economic development;
2. Legal families are evaluated on the basis of their economic performance: the common law
comes out, by and forgo, as superior; and
3. Legal families are used as models of law reform.

Sources of Law and Legal Method in Comparative Law

• Questions as to sources of law are inextricably linked with questions of legal method. Whether a
source of law is successful in producing a particular result, indeed, whether it makes any impact at
all, depends to a greater extent on the way it is applied and interpreted. The law in force is the
product of their refinement by the competent authorities applying and interpreting them.
• Knowledge of the system’s sources of law remains vital to the comparatist because, without it, he
would not be able to assess the legal or non-legal character of the solution provided.

Comparative Law as a Source of Law and a Tool of Legal Method

• Two conceivable aims of comparative law:
a) The accumulation of comparative knowledge as an end is itself without further need
of justification; and
b) As a means to another end, and a number of functions of comparative law are
conventionally enumerated for this purpose: (i) directly concerned with the creation, application,
and interpretation of law; (ii) valuable aid in drafting and interpreting both national and supra-
national legislation; (iii) tool for courts creating and refining case law
• Thus, the person making or applying a legal provision may take into account the solutions other
legal systems provide for a given problem, and comparative law may, therefore, be said to be a
“source of law” in a wider sense.

Sources of Law
• The term is sometimes employed to refer to the institutions and groups of persons which create law
→ legislature, judiciary, courts, legal scholars.
• The term is widely used to designate the body of law resulting from one of the forms of conduct
that are generally accepted as validity generating law → statute law, customary law, case law, or
professional lawThe phrase is employed to refer to the instruments or documents from which
lawyers obtain their knowledge of such law and which provide evidence for its existence →
statutory materials, case reports, records of customs, or legal treatises.
• The most important terminological issue with respect to legal sources is that of bindingness. In
some legal systems the predominant view is that one can only speak of “source of law” if the
persons framing legal solutions to given fact patters are under an obligation to take the relevant
item into account.
• The binding, authoritative, or mandatory character thus becomes an integral oart of the definition
of the term “source of law” itself. In other legal systems, it is widely acknowledged that factors
which do not have to, but may be take into account when framing a legal solution constitute legal
sources as well.
• In some systems, the range of sources is determined by legislation
1. Article 1 (1) of Spanish Civil Code of 1889 states that the sources of the Spanish legal order are
statute law, custom and the general principles of law.
2. Article 1 of Italian Civil Code of 1942 states in the “Provisions on the Law in General” accords
(1) statutes; (2) regulations; (3) corporative norms; (4) usage the status of sources of law.

Legal Method / Reasoning

• In a legal context, “method” is usually employed to refer to the “path” or the “way” from an existing
source of law to the decision on pa particular legal issue in a given situation. In the sense, it
concerns the application and the interpretation of legal reasoning that is more used in common law
systems.
• The application and interpretation of law in some instances is a creative process that generates new
law. As a consequence, the legal method of a legal system necessarily affects the creation of law in
that system.
• Thus, considerations of sources of law are inextricably linked with questions of legal method.
• In the context of comparative studies, the notion of a “legal method” presupposes that there is a
rational and methodological approach to lawmaking and legal reasoning, even if the views as to
rationality may differ from one system to another.
• In modern legal systems based on the separation of powers, the interpretative function is allocated
to the judiciary.
Article 220 (1) of the Treaty Establishing the European Community stipulates that the Community
courts “shall ensure that in the interpretation and application of this Treaty the law is observed”
• Many legal systems contain legislative provisions on the factors to be taking into account in
interpreting the law and how to rank them.
• In the common law world where there are rules on statutory interpretation as well, but they are
usually judge-made. Yet some common law systems have statutory provisions dealing with the
interpretation of statutes → Interpretation Acts
• Interpretation Acts are of two kinds:
A. Some of them exclusively contain legal definitions of frequently used words and expressions
 Irish interpretation Act 1937 or the UK Interpretation Act of 1978
B. Others also comprise general rules on interpretation
 Sections 4, 5, and 13 of the California Civil Code

Standard Arguments in Statutory Interpretation

a) Wording of the provision
b) Legal context (other sections of the same statute, preambles, other statutes, constitutional
provisions, precedent, comparative data)
c) History (legal history of the provision in question, legal history of the respective area of law)
d) “Purpose” of the statute
e) Evaluative arguments (fairness, equity, efficiency, practicability, usefulness, etc.)

Bindingness of Precedent
a. Vertical
b. Horizontal
c. Court being self-bound
d. Persuasive authority
e. De facto bindingness

Basic Concepts in the Application of Precedent

a) Overruling
b) Prospective overruling
c) Distinguishing
d) Confining the decisions to its facts
e) Ratio decidendi
f) Orbiter dictum

Uses of Statutory Interpretation in Comparative Law

• Interpretation of statutes is explored in most general treaties of comparative law since it occupies a
special place in many theories of legal families which divide the various legal systems of the world
into large grounds, with a view to organizing and classifying them in a rational way. Since all modern
systems are at least partly based on statute law that is interpreted in one way or another, it is
almost inevitable that studies attempting what can be termed a “macrocomparison” of legal
systems deal with statutory interpretation.
• In microcomparative analysis, in order to understand the statutory provisions offering legal
solutions, it is imperative to know the system’s approach to statutory interpretations.
• Unification of the law in context of both international uniform law in general and EU law in
particular necessitates a uniform legal method and particularly, a uniform set of rules and principles
of statutory interpretation.

Focus of Legal Interpretation

• The main focus of legal interpretation is on written texts, be they contracts, wills, international
treatises, local by-laws, Acts of Parliaments or constitutions. There has traditionally been a close
interplay between the theory and practice of statutory interpretation and that of the construction of
other legal documents.
• Note:
a) In the context of statutory interpretation, the differences between civil and common law systems
primarily concern the terminology and the classifications used in scholarly writings rather than the
substance of statutory interpretation.
• b) There are no significant difference between the interpretative criteria employed in the major
legal systems of the western world. There remain, however, strong differences with respect to
terminology and classifications used to describe them in scholarly writing.

Legal Education
• There is one feature of legal education that is common to all civil law systems; the monopoly
position which the University occupies (at least with respect to the first part of a future lawyer’s
training), such that a University legal education has come to be regarded as a hallmark of the civil
law.
• Study at a University law faculty for the requisite number of years prescribed by law, followed by a
successful passing of an examination documented by a license or degree, is now a standard feature
of qualification for all branches of the legal profession in virtually every civil-law country.
• Today, in addition to the State-granted law degree the status symbol of the transnational lawyer in
civil-law countries is now the LL.M. degree, the status symbol of the transnational lawyer in civil-law
countries is now the LL.M. degree, achieved abroad after voluntary additional study. Originally a
product mainly of the U.S. designed in major part for export abroad, this has become, in the last 20
years, all but a standard offering of law faculties in Europe.

Common Law vs Civil Law (in terms of legal education and profession)
Common Law Civil Law
Common lawyer is practical and pragmatic. He is Civil lawyer is theoretical and abstract. He is the
the product of practical needs of the bench at the product of law professors in the Universities.
Westminister Hall.
Common law judiciary is composed of leaders of Civilian judiciary is a bureaucracy whose members
the legal profession. are often much less qualified than the much more
prestigious and remunerative practicing bar (let
alone academicians)
The relationship between the attorney and judge is The attorney’s role is much more limited in the
much closer in the common law where judges civilian model, where discovery and preparatory
share the attorney’s professional interests. The activities are considered official business which is
attorney performs the starring role in the Anglo- the province of the judge-bureaucrat.
American adversary procedural model.