Historical Development of Comparative Law
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Comparative law
Legal Systems of the World
Comparative law is the study of differences and similarities between the law (legal systems) of different countries. More specifically, it involves the 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.
History
The origins of modern Comparative Law can be traced back to Gottfried Wilhelm Leibniz in 1667 in his Latin-language book Nova Methodus Discendae Docendaeque Iurisprudentiae (New Methods of Studying and Teaching Jurisprudence Chapter 7 (Presentation of Law as the Project for all Nations, Lands and Times) introduces the idea of classifying Legal Systems into several families. Notably, a few years later, Leibniz introduced an idea of Language families
Although every Legal System is unique, Comparative Law through studies of their similarities and differences allows for classification of Legal Systems, wherein Law Families is the basic level of the classification. The main differences between Law Families are found in the source(s) of Law, the role of court precedents, the origin and development of the Legal System. Montesquieu is generally regarded as an early founding figure of comparative law. His comparative approach is obvious in the following excerpt from Chapter III of Book I of his masterpiece, De l'esprit des lois (1748; first translated by Thomas Nugent, 1750):
[T]he 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.
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Also, in Chapter XI (entitled 'How to compare two different Systems of Laws') of Book XXIX, discussing the French and English systems for punishment of false witnesses, he advises that "to determine which of those systems is most agreeable to reason, we must take them each as a whole and compare them in their entirety." Yet another place where Montesquieu's comparative approach is evident is the following, from Chapter XIII of Book XXIX:
Sir Henry James Sumner Maine, British jurist and first professor of comparative law at Oxford.
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.
The modern founding figure of comparative and anthropological jurisprudence was Sir Henry Maine, a British jurist and legal historian In his 1861 work Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, he set out his views on the development of legal institutions in primitive societies and engaged in a comparative discussion of Eastern and Western legal traditions. This work placed comparative law in its historical context and was widely read and influential.
The first university course on the subject was established at the University of Oxford in 1869, with Maine taking up the position of professor.
Comparative law in the US was brought 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 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, contracts, property 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. The 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)
Relationship with other legal subjects
Comparative law is different from general jurisprudence (i.e. legal theory) and from public and private international law. However, it 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 sociology of law and law and economics (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 and law & economics may help comparative law answer questions, such as:
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· How do regulations in different legal systems really function in the respective societies?
· Are legal rules comparable?
· How do the similarities and differences between legal systems get explained?
Classifications of legal system
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', in particular the
· 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, various South American states such as Brazil, Quebec, Saint Lucia, the Ionian Islands, Egypt, and Lebanon
· German group
· Scandinavian group, comprising the laws of Denmark, Norway, Sweden, Finland, and Iceland
· English group, including, inter alia, England, the United States, Canada, Australia, and New Zealand
· Russian group
· Islamic group (used in the Muslim world)
· Hindu group
https://www.britannica.com/science/comparative-law
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 comparative technique, conscious of the advantages to be gained.
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.
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Although certain practices and institutions that crept into Roman law undoubtedly originated in the imperial provinces, Roman legal science took no cognizance of comparative law. Nor can the medieval universities in Europe be said to have displayed great concern for comparative law. Over the centuries, their interest was limited to Roman law, supplemented in certain areas or modified to some extent by canon law. While members of the first school of thought (called glossators) confined themselves to the task of elucidating the meaning of the Roman codes of law, their successors (the postglossators) undertook the systematic arrangement and adaptation of that law to prevailing social conditions. At no time was there an effort to compare laws. The customary laws that one found here and there could hardly hold any interest for scholars labouring to give society a model of ideal justice and to discover or elucidate a higher law above humankind’s making. Indeed, in their opinion, local laws were no more than rubbish and evidently doomed to decay. To compare these local practices would have been a waste of time; to compare them with Roman laws would have been almost indecent.
https://www.nyulawglobal.org/globalex/Comparative_Law.html
What is Comparative Law?
What is meant by comparative law? In the strict sense, it is the theoretical study of legal systems by comparison with each other, and has a tradition going back over a century. In recent years it has gained in practical importance for two reasons. The first is the increased globalization of world trade, involving the need to "do business" in unfamiliar legal systems. The second is the move towards harmonization of laws, and more recently towards codification within the European Union, where several legal traditions coexist. More loosely, there are publications and Internet resources that assemble legal materials from several jurisdictions, without necessarily undertaking comparisons, but they can be seen as "tools of the trade" for comparative lawyers.
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