Comparative law

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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 in existence in the
world, including the common law, the civil law, socialist 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 globalisation and
democratisation.

Contents
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 1 History
o 1.1 Montesquieu
o 1.2 Continental comparative law
o 1.3 Birth as a discipline in the U.S.
 2 Purpose
 3 Importance
 4 Relationship with other legal subjects
 5 Classifications of legal systems
o 5.1 Arminjon, Nolde, and Wolff
o 5.2 David
o 5.3 Zweigert and Kötz
 6 See also
o 6.1 Professional associations
 7 References
 8 External links
 9 Further reading

History
The birth of modern comparative law is generally attributed to Europe in the eighteenth
century. However, prior to that, legal scholars (forerunners of today's comparativists and
international lawyers) practiced comparative method. In Russian legal history, for instance,
comparative method dates back to the sixteenth century.[1]

Montesquieu

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
what many consider to be his masterpiece, De l'esprit des lois[2]:

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[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.

Continental comparative law

Please help improve this sect by expanding it. Further information might be found on the
talk page. (July 2010)

Birth as a discipline in the U.S.

Comparative law was really born of the ashes of WWII, brought to America by a legal scholar
fleeing persecution in Germany, Rudolf Schlesinger. Schlesinger eventually became professor
of comparative law at Cornell Law School helping to spread the discipline throughout the US.

Purpose
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:

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  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)

Importance
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. In this globalising world,
comparative law is important for it provides a platform for intellectual exchange in terms of
law and it cultivates a culture of understanding in a diverse world. Furthermore, comparative
law helps in broadening horizons for law reformers and legislators around the world. It can
also be helpful in international relations in shaping foreign policies.

Relationship with other legal subjects

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 law may contribute to legal theory by creating categories and
concepts of general application. Comparative law may also provide insights into the question
of legal transplants, i.e. the transplanting of law and legal institutions from one system to
another. The notion of legal transplants was coined by Alan Watson, one of the world's
renowned legal scholars specializing in comparative law.

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?

Classifications of legal systems

Arminjon, Nolde, and Wolff

Arminjon, Nolde, and Wolff[3] 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 the

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  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
 German group
 Scandinavian group (comprising the laws of Sweden, Norway, Denmark, 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

David

David[4] proposed the classificiation of legal systems, according to the different ideology
inspiring each one, into five groups or families:

 Western Laws, a group subdivided into the:

o Romano-Germanic subgroup (comprising those legal systems where legal
science was formulated according to Roman Law - see also Civil law (legal
system))
o Anglo-Saxon subgroup
 Soviet Law
 Muslim Law
 Hindu Law
 Chinese Law

Especially with respect to the aggregating by David of the Romano-Germanic and Anglo-
Saxon Laws into a single family, David argued that the antithesis between the Anglo-Saxon
Laws and Romano-German 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 Romano-Germanic legal systems included those countries where legal science was
formulated according to Roman Law, whereas common law countries are those where law
was created from the judges. The characteristics that he believed uniquely differentiate the
Western legal family from the other four are

 liberal democracy
 capitalist economy
 Christian religion

Zweigert and Kötz

Zweigert and Kötz[5] 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, and

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the dominant ideology. Using the aforementioned criteria, they classify the legal systems of
the world into six families. These are the

 Roman family
 German family
 Anglo-American family
 Scandinavian family
 Family of the laws of the Far East (China and Japan)
 Religious family (Muslim and Hindi law)

See also
 Legal systems of the world (includes links to legal systems of specific countries)
 Sir Henry Maine
 Friedrich Karl von Savigny
 Jurisprudence
 German Historical School
 Comparative criminal justice
 Sociology of law
 Annual Bulletin of the Comparative Law Bureau (1908), the first comparative law
journal in the U.S.

Professional associations

 International Academy of Comparative Law

 American Society of Comparative Law

References
1. ^ *Butler, William E. (2009). Russia and the Law of Nations in Historical Perspectives:
Collected Essays. London: Wildy, Simmonds. pp. 124. ISBN 1-884445-42-X.
2. ^ Charles de Secondat, Baron de Montesquieu, The Spirit of Laws, Translated by Thomas
Nugent, revised by J. V. Prichard, Based on an public domain edition published in 1914 by G.
Bell & Sons, Ltd., London
3. ^ Traité de droit comparé - in French; Paris 1950-1952
4. ^ Traité élémentaire de droit civile comparé: Introduction à l'étude des droits étrangers et à
la méthode comparative - in French; Paris, 1950
5. ^ An Introduction to Comparative Law, translation from the Germany original: T. Weir, 3rd
edition; Oxford, 1998

COTTERRELL, Roger (2006) Law, Culture and Society. Aldershot, Ashgate.

De CRUZ, Peter (2007) Comparative Law in a Changing World. London: Routledge-

Cavendish, 1st ed 1995.

DONAHUE, Charles (2008) ‘Comparative Law before the Code Napoleon’ in Reimann,
Mathias and Zimmermann, Reinhard (eds.) The Oxford Handbook of Comparative Law.
Oxford: Oxford University Press.

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GLANERT, Simone (2008) ‘Speaking Language to Law: The Case of Europe’, Legal Studies
28: 161–171.

GLENN, H. Patrick (2000) Legal Traditions of the World by and Comparative Law in a
Changing World. Oxford: Oxford University Press.

LEGRAND, Pierre (1996) ‘European Legal Systems Are Not Converging’, International and
Comparative Law Quarterly 45: 52 - 81.

LEGRAND, Pierre (1997) ‘Against a European Civil Code’, Modern Law Review 60: 44 -
63.

LEGRAND, Pierre and MUNDAY, Rodrick (2003) (eds.) Comparative Legal Studies:
Traditions and Transitions. Cambridge: Cambridge University Press.

LEGRAND, Pierre (2003) ‘The Same and the Different’ in Legrand, Pierre and Munday,
Rodrick (eds.) Comparative Legal Studies: Traditions and Transitions. Cambridge:
Cambridge University Press, pp. 240–311.

MENSKI, Werner (2006) Comparative Law in a Global Context. Cambridge: Cambridge

University Press, 1st edition 2000.

NELKEN, David (2000) (ed.) Contrasting Criminal Justice: Getting from here to there.
Aldershot: Ashgate/Dartmouth.

REIMANN, Mathias and ZIMMERMAN, Reinhard (2008) The Oxford Handbook of

Comparative Law. Oxford: Oxford University Press.