Comparative law research

19th-century beginnings

Despite the occasional use of the comparative technique, nevertheless, comparative law itself was not recognized as a separate branch or as a fundamental technique of legal science until the 19th century.
In particular, it played no part in legal education.
It was quite unthinkable that the pursuit of justice should be taught by reference to a host of customary rules that were incomplete, sometimes archaic, and generally regarded as barbaric.
A foundation of ethical and political principles rather than sociological considerations, an appeal to reason rather than a study of human behaviour or judicial precedent—these were deemed the true criteria of progress.

Ancient roots of law

In the 6th century bce according to legend, the Greek lawgiver Solon, faced with the task of compiling the laws of Athens, gathered together the laws of various city-states.
Similarly, in the 5th century bce, a Roman commission was reported to have consulted the statutes of the Greek communities in Sicily before giving Rome the famous Laws of the Twelve Tables.
Aristotle, in the 4th century, is said to have collated the constitutions of no fewer than 158 city-states in his effort to devise a model constitution.
Thus, from ancient times it would seem that those wishing to set up a just system have sought inspiration and example from abroad.
The true expansion of comparative law, however, was hindered by a number of obstacles—such as the parochialism of social groups, contempt for foreigners, or “barbarians,” and belief in the sacredness or everlasting inviolability of inherited legal rules.

Historical development of comparative law

The expression comparative law is a modern one, first used in the 19th century when it became clear that the comparison of legal institutions deserved a systematic approach, in order to increase understanding of foreign cultures and to further legal progress.
From early times, however, certain scholars and researchers have made use of the comparati.

International efforts

The 19th century drew to a close with an important event—the meeting of the First International Congress of Comparative Law in Paris in 1900.
Experts from every part of Europe delivered papers and discussed the nature, aims, and general interest of comparative law.
Particular emphasis was laid on its role in the preparation of a “common law for the civilized world,” the contents of which would be laid down by international legislation.
The stress, however, was on comparative legislation and codification because (with the exception of one English jurist) the congress had attracted only jurists from continental European countries, all of which had coded law, in contrast to English customary, or common, law.
Consequently, the idea of an enacted world law was the natural outcome of its proceedings.

Macrocomparison

The situation differs greatly in consideration of macrocomparison.
Here no comparison is possible without previously identifying and thoroughly mastering the fundamentals of the law systems as they differ from place to place.
The jurist must, as it were, forget his training and begin to reason according to new criteria.
If he is French, English, or American, he must recognize that in some folk societies of East Asia, the upright citizen never crosses the threshold of a courtroom and acknowledges no subjective rights; instead, the citizen’s behaviour is governed by rites handed down from his ancestors, ensuring him the approval of the community.
Likewise, if the Western jurist is to understand Islamic law or Hindu law, he must realize that the law is contained in rules of conduct laid down by a religion for its followers, and for its followers only.
These rules, creating obligations and not rights, rank above all worldly matters and, in particular, are not to be confused with the regulations that a national government may, at a given time, enact and ratify.
Further, in comparing his system of law with that of a communist country, the Westerner must remember that on no account does the citizen of a Marxist-Leninist state regard the rule of law as an ideal for society.
Far from it, for his dream is to see law—which to him is synonymous with injustice and coercion—wither away in an affluent society founded on human solidarity and fellowship.
A considerable shifting of legal gears is necessary before a French or German jurist can grasp the vital importance that the English or American lawyer traditionally attaches to the concept of due process and the rules of evidence; in continental eyes, procedural rules take second place to substantive law.

Methodological considerations in contemporary comparative law

The world contains a vast number of national legal systems.
The United Nations brings together representatives of more than 190 states, but these states are far outnumbered by legal networks, since not all states—notably federal ones—have accomplished unification within their own frontiers.
It is thus an enormous task to try to compare the laws of .

Microcomparison

Microcomparison demands no particular preparation.
The specialist in one national system is usually qualified to study those of various other countries of the same general family.
His chief need is access to bibliographical material.
In the United States, each state has its own statutes and, to some purposes, its own common law.
Thus, the American .

Overview

comparative law, examination of comparative legal systems and of the relationships of the law to the social sciences.

Role of judges

Such contempt was not characteristic of the attitude of the judges and lawyers whose duty it was to administer justice, mainly by applying the customary law.
Their material contained areas of uncertainty and required adaptation to social needs.
In the work of ascertaining the content of a custom, and in the task of filling the gaps of customs, judg.

What is comparative law?

What is the purpose of comparative study?

What makes a good comparative lawyer?

Why is comparative legal research important?