1- What is Comparative law?

Comparative law is the study of differences and similarities between the laws of different

countries. More specifically, it involves study of the different legal "systems" (or "families") in

existence in the world, including the common law, the civil law, socialist law, Canon law, Jewish

Law, Islamic law, Hindu law, and Chinese 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 globalization and

democratization.

Comparative law is an academic discipline that involves the study of legal systems, including their

constitutive elements and how they differ, 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.

What is the purpose Purpose of Comparative 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. The purposes of comparative law are:

- To attain 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.

- To see good examples, new concepts and institutions developed in other systems.

- To understand different systems for better handling legal cases in other legal cultures.”

How legal systems are classified?

There is no one approach to the classification of legal systems. The most used classifications are as

follows:

1- Arminjon, Nolde, and Wolff

Arminjon, Nolde, and Wolff 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'.

- 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, Romania,

Louisiana, states of South America (such as Brazil), Quebec, Santa Lucia, the Ionian Islands,

Egypt, and Lebanon

- German group

- Scandinavian group (comprising the laws of Denmark, Norway, Sweden, Finland, and Iceland)

- English group (incl. England, the United States, Canada, Australia and New Zealand inter alia)

- Russian group

- Islamic group (used in the Muslim world)

- Hindu group

2- David’s classification

René David proposed the classification of legal systems, according to the different ideology inspiring

each one, into five groups or families:

- Western Laws, a group subdivided into the:

Romano-Germanic subgroup (comprising those legal systems where legal science was formulated

according to Roman Law) and Anglo-Saxon subgroup

 - Soviet Law

- Muslim Law

- Hindu Law

- Chinese Law

- Jewish Law

3- Classification of Zweigert and Kötz

Konrad Zweigert and Hein Kötz propose a different, multidimensional methodology for categorizing

laws, i.e. for ordering families of laws. They maintain that, 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, and the dominant ideology. Using

the aforementioned criteria, they classify the legal systems of the world into six families.

- Roman family

- German family

- Common law family

- Nordic family

- Family of the laws of the Far East (China, and Japan)

- Religious family (Jewish, Muslim, and Hindu law)

What are the basic features of French court system?

The French legal system has a number of different courts, each with its own hierarchy of courts and

its own judiciary. This has a profound impact on the character of the different judiciaries. French

court institutions are structured according to three basic principles. First, courts are specialist to

varying degrees. Three distinctions are of fundamental importance: between public law and private

law, between civil law and criminal law, and between these ordinary courts and the Conseil

constitutionnel (Constitutional Court).

There is no court that has even residual jurisdiction over all branches of law. Courts are then grouped

between those of general jurisdiction and specialist courts, described as exceptional courts or as

courts of limited jurisdiction. Secondly, French courts are typically regional. Only at the highest point

in the hierarchy is there a national court in any branch of law (with the obvious exception of

constitutional law). Thirdly, the French adhere to the principle of the right to an appeal

(double degré de juridiction). This right of appeal on law and fact creates a substantial caseload.

Civil and criminal courts: Civil and criminal courts carry distinct names, but are co-located. This

combination of functions and personnel makes it appropriate to call these courts the ‘ordinary

courts’.

There are two general first instance civil courts, first instance and grand first instance courts. Cases

are assigned to one or other of these courts depending on their seriousness. The grand instance

courts are composed of more than one judge. Much important civil work has been carried on by

single judges.

There are also some specialist civil courts. They deal with commercial matters or those which arise

between commercial people or on commercial matters or things (e.g. commercial leases, companies

and patents). Labour courts also pre-date the Revolution, and they are staffed essentially by lay

people.

In criminal matters, the lowest level court, the police court, deals with the minor offences, the

contraventions. Cases will be tried by a single judge, and some 98 per cent lead to convictions. More

serious cases, involving heavy fines or imprisonment, are tried by the correctional courts.

Appeals on both civil and criminal cases lie to the thirty-three regional court of appeal. Apart from

urgent matters, court of appeal is composed of minimum three members, though civil cases are

often heard before a single rapporteur. Appeal lies on law and fact. Because there is a file on the case

containing all the elements of the evidence produced by the lower civil and criminal courts, it is easy
to conduct such an appeal on fact as well as law, though the court may order such additional

investigations if necessary.

A litigant may make a cassation against a decision of the court of appeal to the Court of Cassation

which is the only national court in France on civil or criminal matters. As its name implies, it is not

strictly an appeal court, but merely a body that quashes the rulings of appeal courts for error of law.

Administrative law is the branch of law that is concerned with the powers and organisation of

governmental bodies, notably the state. The notion of the ‘administration’ here covers not only

national government, but also local authorities, public agencies and public services. Public law has

special rules governing not only the use of powers, but also the rules of contract, the liability of

public authorities and employment.

The oldest of the public law courts is the Conseil d’Etat (Administrative Court of Cassation), set up by

Napoleon in 1799. It was originally a court of first and last instance, but since the creation of the first

instance administrative courts in 1953 and the Court of Appeal in 1987, the Conseil has increasingly

become a supervisory, Cassation court. Its jurisdiction is typically to review the decisions of the lower

administrative courts and to quash them where the law has been wrongly.

The Constitutional Court (Conseil Constitutionnel) strikes down legislation and protects civil liberties.

It was a body for resolving disputes on the boundaries between the legislative competence of the

executive and Parliament and on disputed parliamentary elections.

What are the basic features of German court system?

The court system is characterised by being specialist and regional, though ultimately hierarchically

integrated at a federal level. In terms of specialisms, there are five basic systems of courts each with

its own first instance and appeal courts at Land level, with a federal supreme court: ordinary (civil

and criminal) courts, administrative courts, tax courts, labour courts and social courts. In addition,

there is the Federal Constitutional Court Bundesverfassungsgerichtshof). The specialist groupings of

courts are of very uneven size. The ordinary civil and criminal courts had 15,456 judges (74 per cent)

out of 20,901 judges, whilst administrative courts had only 2,316 judges, social courts 1,274, labour

courts 1,154 and tax courts 661 judges.

The German legal system is subdivided in,

 constitutional courts

 ordinary courts, consisting of civil and penal courts

 social courts

 administration courts

 financial courts and

 labour courts

a. Constitutional courts

The Federal Constitutional Court (“Bundesverfassungsgericht”) is Germany’s highest and most

important judicial body. The jurisdiction of this court has had an enormous impact on the

development of the Federal Republic of Germany and is known as the guardian of the constitution.

Attention: In Germany everybody has got the right to appeal to the Federal Constitutional Court in

order to check whether the action of a public authority (a judgment, a law or an administrative act) is

in accord with the German constitution (“Grundgesetz”).

The Federal Constitutional Court is the “last level of jurisdiction” and you will have to run through all

other possible instances before “going to Karlsruhe” which is the city where the Court is located.

Nonetheless, it is no super revision instance as it only deals with constitutional questions.

b. Ordinary courts

Ordinary courts are competent for criminal matters, civil matters, matrimonial and family

proceedings. Furthermore for non-contentious proceedings such as the maintaining of the company

register. Ordinary courts are organized in four tiers, each of increasing importance: the local courts
(“Amtsgerichte”), the regional courts (“Landgerichte”), the higher regional courts

(“Oberlandesgerichte”) and the Federal Court of Justice (“Bundesgerichtshof”).

In criminal cases, each of the first three courts may have jurisdiction, depending on the nature and

seriousness of the crime. In civil proceedings, either the local or the regional court can be court of

first resort. Appeals may mostly be lodged with up to two higher courts.

c. Labour courts

Labour courts handle disputes under private law arising from employment contracts and between

management and labour force as well as matters covered by the Works Constitution Act. Labour

courts have got three instances. They are for example competent for the question whether an

employee has been fairly dismissed or not.

d. Administrative courts

The jurisdiction of the administrative courts covers legal protection against all administrative acts

and other administrative proceedings. The administrative courts handle all trials under public

administrative law, except those that fall under the jurisdiction of the social, finance or constitutional

courts. Administrative courts have also got three levels.

e. Social and Financial courts

The social courts rule on disputes from all areas of social security. They have also got three instances.

Financial courts have only got two levels and are dealing with taxation and related matters.

Within generalist courts, individual tasks can be quite specialised, especially in the appeal courts at

both Land and federal levels. Some regional and federal level courts have the authority to review

cases from the point of view of facts and laws. These courts are appeal courts. The federal courts at

the top of each system serve primarily to deal with points of law by quashing the decision of the Land

court and remitting the case back to it (see also table on Germany)