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Harris, Campbell & Halson: Remedies in Contract and Tort

Harvey: Seeking Asylum in the UK: Problems and Prospects

Hervey & McHale: European Union Health Law

Hervey & McHale: Health Law and the European Union

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Jackson and Summers: The Internationalisation of Criminal

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International Journal of Law in Context: A Global
Forum for Interdisciplinary Legal Studies
The International Journal of Law in Context is the companion
journal to the Law in Context book series and provides a forum for
interdisciplinary legal studies and offers intellectual space for
ground-breaking critical research. It publishes contextual work
about law and its relationship with other disciplines including but
not limited to science, literature, humanities, philosophy, sociology,
psychology, ethics, history and geography. More information about
the journal and how to submit an article can be found at
http://journals.cambridge.org/ijc

11
C OM PA R AT I V E L AW
Second Edition
Mathias Siems
Durham University

12
 University Printing House, Cambridge CB2 8BS, United Kingdom

One Liberty Plaza, 20th Floor, New York, NY 10006, USA

477 Williamstown Road, Port Melbourne, VIC 3207, Australia

314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre,

New Delhi – 110025, India

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Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the

pursuit of education, learning, and research at the highest international
levels of excellence.

www.cambridge.org

Information on this title: www.cambridge.org/9781107182417

DOI: 10.1017/9781316856505

© Mathias Siems 2018

This publication is in copyright. Subject to statutory exception and to the

provisions of relevant collective licensing agreements, no reproduction of
any part may take place without the written permission of Cambridge
University Press.

First published 2014

Second editon published 2018

Printed in the United Kingdom by Clays, St Ives plc

13
 A catalogue record for this publication is available from the British
Library.

Library of Congress Cataloging-in-Publication Data

Names: Siems, Mathias M., 1974– author.

Title: Comparative law / Mathias Siems, University of Durham.

Description: Second edition. | Cambridge, United Kingdom :

Cambridge University Press, [2018] | Series: The law in context series
| Includes bibliographical references and index.

Identifiers: LCCN 2017043869 | ISBN 9781107182417 (hardback) |

ISBN 9781316633557 (paperback)

Subjects: LCSH: Comparative law.

Classification: LCC K583 .S587 2018 | DDC 340/.2–dc23

LC record available at https://lccn.loc.gov/2017043869

ISBN 978-1-107-18241-7 Hardback

ISBN 978-1-316-63355-7 Paperback

Cambridge University Press has no responsibility for the persistence or

accuracy of URLs for external or third-party Internet websites referred to in
this publication and does not guarantee that any content on such websites
is, or will remain, accurate or appropriate.

14
 Contents
List of Figures
List of Tables
Preface to the Second Edition
Preface to the First Edition
List of Abbreviations

1 Introduction
A Why Compare Laws?
1 How to Slide into Comparative-Law Thinking
2 Purposes of Comparative Law
(a) Knowledge and Understanding
(b) Practical Use at Domestic Level
(c) Practical Use at International Level
B What Belongs to Comparative Law?
1 Status Quo: No Fixed Canon
2 Substantive Scope of This Book
3 Three Dimensions of ‘Comparative Law in Context’
4 Conclusion: Structure of This Book

Part I Traditional Comparative Law

2 The Comparative Legal Method

A Typical Structure of a Comparative Paper
1 Preliminary Considerations
(a) Possible Research Questions
(b) Countries to be Examined

15
 2 Description of Laws
(a) Finding the Right Perspective
(b) To Translate or Not to Translate?
(c) Positive Law and Beyond
3 Comparative Analysis
(a) Identifying Variation
(b) Explaining Variation
4 Critical Policy Evaluation
(a) Should This be Part of Comparative
Analysis?
(b) Possible Recommendations
5 An Example from Comparative Tort Law
B Functionalism and Universalism in Particular
1 Functionalism: Origins, Use and
Consequences
(a) Attractiveness of Functionalism Elsewhere
(b) Popularity of Functionalism in Comparative
Law
(c) Limitations Set by Functionalism
2 Comparative Law’s Interest in Finding
Commonalities
(a) Parallels in Philosophy and Other Fields
(b) Universalism and Comparative Law
3 Example of the Common Core Project
C Critical Analysis
1 Simplistic Approach
2 Focus on Western Countries
3 Critics of Functionalism
4 Policy Evaluation
D Conclusion

3 Common Law and Civil Law

16
 A Terminology and Origins
B Juxtaposing Civil and Common Law
1 Legal Methods and Sources of Law
(a) Role of Statute Law and its Interpretation
(b) Role of Courts
(c) Role of Legal Scholarship
2 Courts and Civil Procedure
(a) Which Types of Courts Exist?
(b) Who Exactly is ‘the Court’?
(c) What is the Main Form of Civil
Proceedings?
(d) What are the Roles of Judge, Parties and
Lawyers in Civil Trials?
(e) How are Judgments Written?
(f) What Effects Do Judgments Have?
(g) Conclusion
3 Comparative Contract Law
(a) Introduction
(b) Contract Formation
(c) Good Faith and Precontractual Duties
(d) Contractual Remedies
(e) Conclusion
C Critical Analysis
1 Diversity in Continental Europe
2 Differences Between England and the United
States
3 Western Law Instead of Civil versus Common
Law?
D Conclusion

4 Mapping the World’s Legal Systems

A Setting the Scene

17
 1 Background of Classifications
2 Purposes for Legal Classification
B Classifying Countries
1 Bases for Classification
2 Review of Main Classifications
3 Main Commonalities and Differences
C Critical Analysis
1 Over-emphasis of Differences
2 Over-emphasis of Similarities
(a) Asian and African Legal Systems
(b) Latin America
3 Disregard of Hybrids
(a) Mixed Legal Systems
(b) Horizontally Divided Legal Systems
(c) Vertically Divided Legal Systems
(d) Parallel Legal Systems
D Conclusion

Part II Extending the Methods of

Comparative Law

5 Postmodern Comparative Law

A Challenging the Orthodoxy
B Deep-level Analysis of Law
1 Law as Requiring Immersion
2 Law as Legal Pluralism
3 General Legal Scholarship as Comparative
Law
C Deep-level Comparisons
1 Jurisprudential and Structural Approaches

18
 (a) Jurisprudential Approaches
(b) Structural Approaches
(c) Further Discussion
2 Cultural and Linguistic Approaches
(a) Cultural Approaches
(b) Linguistic Approaches
(c) Further Discussion
3 Normative Cultural Comparison
D Critical Comparative Law
1 Law as Politics
2 Law as Discourse
3 Negative Comparative Law
E Conclusion

6 Socio-legal Comparative Law

A Setting the Scene
1 Legal Culture and Comparative Law
(a) Meanings of Legal Culture
(b) Spatial Levels of Legal Cultures
2 Causality Problem in Socio-legal Research
(a) Mirror View and its Critics
(b) Illustrating Possible Causalities
3 Qualitative, Quantitative and Mixed
Approaches
B Civil Litigation, Courts and Lawyers
1 Civil Litigation and Other Forms of Dispute
Resolution
2 Litigation Rates in Five Countries
(a) United States, England, Germany and the
Netherlands
(b) Japan: ‘Harmony Culture’ or a ‘Normal
Country’?

19
 (c) Conclusion
3 Research on Judges, Lawyers and the Public
(a) Challenges and Choices
(b) Selected Comparative Information about
Lawyers and Judges
(c) Comparisons of ‘Access to Justice’
C Substantive Law ‘in Action’ and Society
1 Comparative Commercial Law
(a) How the Law is Applied
(b) How the Law Shapes Society – and Vice
Versa
2 Comparative Criminal Law
(a) How the Law is Applied
(b) How the Law Shapes Society – and Vice
Versa
D Conclusion

7 Numerical Comparative Law

A Types of Quantitative Legal Information
B Measuring the Impact of Foreign Legal Ideas
1 Cross-Citations Between Courts
2 Measuring Foreign Influence Related to
Academic Research
3 Measuring the Influence of Foreign Statute Law
C Measuring Similarities and Differences
1 Formal Features of the Legal System
2 Research Methods of Legal Scholars
3 Substance of Legal Rules
4 Combined Measures
D Measuring the Quality of Legal Rules and
Institutions
1 Measuring Legal Rules

20
 2 Measuring Courts and Other Legal and Political
Institutions
3 Surveying Perceptions about Law and its
Enforcement
4 Combined Measures
E Conclusion

Part III Global Comparative Law

8 Legal Transplants
A Conceptual Research on Legal Transplants
1 Relevant Actors and Objects
2 Rationales and Transplant Process
(a) Aspired Benefits for Transplant Country
(b) Aspired Benefits for Origin Country
(c) Transplants Beyond Direct Benefits
3 Outcomes in the Transplant Country
(a) Positive View: They Work as in Origin
Country
(b) Sceptical View: They are Largely Irrelevant
(c) Differentiated View: They Function in a
Modified Way
B Legal Transplants Throughout History
1 Legal Transplants in the West
(a) Legislative Transplants and
‘Americanisation’
(b) Recent Use of Judicial Legal Transplants
2 Colonialism and Post-Colonialism
(a) Colonial World: Only Common and Civil
Law?

21
 (b) Post-Colonial Development: Everything
New?
3 Transplants in Non-Colonial Countries: All that
Different?
(a) Transplanted Formal Law
(b) Law in Practice
C Normative Views and Discussion
1 Views of Optimists and Pessimists
2 Mapping the Argumentative Field
3 Designing and Preventing Transplants
D Conclusion

9 Convergence, Regionalisation and

Internationalisation
A Convergence of Laws
1 Motivation and Terminology
2 Convergence Forces
(a) Convergence Through Congruence and
Pressure
(b) Conflict of Laws and Extra-territoriality
(c) Choice of Law and Regulatory Competition
3 Examples: Company and Constitutional Law
(a) Arguments Showing Convergence
(b) Limitations of Convergence
(c) Normative Positions
B Regionalisation
1 Reasons for Regionalisation
2 Topics of Comparative Regionalisation
(a) Forms of Regional Cooperation Today
(b) Models, Diffusion and Design
3 The EU as an Example of Regional Integration
(a) Scope of Europeanisation

22
 (b) Towards a European Legal Culture
(c) Critics and Design Choices
C Internationalisation
1 General Impact of International Law
2 Forms of Comparative International Law
(a) Vertical Comparative International Law
(b) Horizontal Comparative International Law
3 Example: Human Rights Law
(a) Protection of Human Rights in the West
(b) Is the ‘Western Model’ a Suitable Global
One?
(c) Internationalisation of Human Rights
D Conclusion

10 From Transnational Law to Global Law

A General Trends and Analysis
1 Challenges to State Law and National
Boundaries
2 Rise of Transnational and Global Law
(a) Transnationalisation Across Many Areas of
Law
(b) Variants of Transnational and Global Law
3 Implications of Transnational and Global Law
(a) Conceptual Implications
(b) Normative Implications
B Transnational Commercial Law
1 Variations of Transnational Commercial Law
2 International Commercial Arbitration in
Particular
3 Feasibility and Legitimacy of Private Law-
making
C Global Social Indicators

23
 1 Definitions and Variations of Indicators
2 Relevance of the Legitimacy of Indicators
3 Comparing the Legitimacy of Indicators
D Conclusion

11 Comparative Law and Development

A Evolving Ideas of ‘Law and Development’
1 Towards the ‘Washington Consensus’
2 ‘Post-Washington Consensus’
B Development and the Rule of Law
1 Typology and Purpose(s)
2 Rule of Law in China, Russia and Afghanistan
3 Conceptual and Methodological Postscript
C Critics of ‘Law and Development’
1 Law Does Not ‘Work’
2 Against ‘Top-Down’ Approaches
3 Western Law Out-of-Context
4 ‘Wrong’ Legal Rules and Institutions
D Conclusion

Part IV Comparative Law as an Open

Subject

12 Implicit Comparative Law

A Introduction to Comparative Research in the
Social Sciences
1 Main Rationales for a Comparative Approach
2 Main Types of Comparative Research
3 Methods, Continued: History, Logic and
Concepts

24
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