Comparative Law: An Overview

Introduction to Comparative Law

• This module explores the fundamentals of comparative law, its aims, methods, legal families, and transplants.
• It includes case studies for comparative analysis of law areas and insights into legal cultures/traditions.
• Specific areas to be explored are comparative constitutional law, family law, the law of Bosnia and Herzegovina, and post-Soviet law.

Course Assessment

• Multiple choice questions account for 25% of the final grade.
  • The test must be completed between March 27 and March 29 by 12 noon UK time.
• The essay is 1000 words and accounts for 75% of the final grade.
• The question is released in March and due by April 24 at 12 noon UK time.
• Resit assessments require students to achieve a combined pass mark.
• The multiple-choice question assessment result is carried forward, with the resit being only for the essay of 1000 words (75%) during the June/July reassessment period.

Comparative Law Definition

• Comparative law describes the laws of different legal systems for "comparative reflections".
• Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law (tr. Tony Weir, 3rd ed, Oxford, 1998), addresses the definition.

Birth of Comparative Law

• Comparative law started in Paris, 1900, at the World Exhibition.
• French scholars Édouard Lambert and Raymond Saleilles established an International Congress for Comparative Law.
• The Congress reflected a faith in progress fueled by increasing wealth and splendor.
• It aimed to overcome local confines and master the world.
• Lawyers, no longer satisfied with interpreting their systems, sought a common global law.
• Lambert argued comparative law should resolve differences in laws based on cultural and economic development, reducing divergences due to non-political factors.
• World Wars undermined the faith in human progress and a single law for all.
• The value of eclectic study and comparison of legal systems remain.
• Zweigert and Kötz assert that comparative law fosters viewpoint approximation, abandons complacency, and relaxes fixed dogmas.
• Studying different laws and promotes belief in a unitary sense of justice and dissolves national prejudices.

Against Legal Nationalism

• International exchange occurs in natural, medical, social, and economic sciences
• Legal science differs, as Roman law-based international unity's law and legal science ceased when national codes replaced it in 18th-century Europe.
• Lawyers focused on their legislation, leading to national pride.
• Germans considered German law as supreme, as did the French of French law.
• Comparative law helps end this juristic narrow-mindedness.

History and Motives Behind Development

• Key motivators are uniformization and harmonisation.
• Relevant laws include ius unum lex multiplex and ius commune europaeum.
• Overcoming European legal nationalism is also a motivator.
• Interesting aspects arose during and after the Cold War.
• Colonialism and the age of empires contributed to it.
• Orientalism also played a role.
• Knowledge and power are also at play.
• Other comparative disciplines are inspirations for it.
  • These include linguistics and anatomy.

Purposes of Comparison

• Improves knowledge and context of the law.
• Facilitates learning foreign law, understanding own law and critical analysis.
• Promotes critical perspective development in learning law.
• Develops own law.
  • Assists reasoning of judges.
  • Aids law reform, policy, unification, harmonization, and transnational law.

Comparative Law in Legal Practice

• Comparative legal analysis involves fairchild v Glenhaven Funeral Services Ltd UKHL 22, an asbestos case, where legal references were made to the laws of different countries including Australia, Canada, France, Germany, Greece, Italy, the Netherlands, Norway, South Africa, Switzerland and the United States.
• Writings from legal scholars and casebooks on tort law were cited.
• Lord Rodger cited roman law.
• JD (FC) (Appellant) v. East Berkshire Community Health NHS Trust and others (Respondents) and two other actions (FC) UKHL 23, makes note of liability not being dismissed in France
• It is found that recovery in France depends on showing gross fault.
• Summary dismissal would not happen in Germany because policy rejected §839 of the BGB.

Disregarding Comparative Law

• Judge Scalia states US Supreme Courts should not impose foreign moods on Americans
• Judge Posner states that foreign is flirting with a discredited idea
• He believes that world judges formulate an elite of wisdom
• Judge Posner suggests that comprehending the language in which foreign legal judgments are difficult
• Ginsburg feels sensitivity and good thinking should come from foreign resources

Comparative law in legislation

• Legislatures utilize models from other systems
• This is important in smaller jurisdictions
• The Scottish Law Commission is a strong consideration
• Considerations are made to Scottish Law Commission Report on Review of Contract Law: Formation, Interpretation, Remedies for Breach, and Penalty Clauses 29 Mar 2018 [SCOT LAW COM No 252]

Why Comparative Law

• Identifies legal assumptions before challenge to justify assumptions
• Considers abandonment assumptions if indefensible
• The first step involves moving away from scots law

Imposing Legal Concepts

• Imposing legal concepts is an example of a cautionary tale
• Problems may surface if there is a notion of foreign systems by Scottish lenses
• This requires the method of observing functionally similar differences across different legal systems

The Aims and Methods of Comparative Law (Lecture W27)

• Required reading includes comparative law and an introduction to comparative law.
• Zweigert & Kötz's "Introduction to Comparative Law" (tr. Tony Weir, 3rd ed, Oxford, 1998), ch 2: Functions and Aims & ch 3: Method is also a required reading
• Recommended readings include comparative law , Kischel's Comparative law and PG Monateri's methods of comparative law

Lecture 1- The Aims and method of Comparative Law

• Readings involves comparative law of aims, methods, comparability and functionalism vs culturalism/ contextualism
• Siems and Zweigert & Kotz feature as required readings
• Comparative law by Siems and Kischel feature as recommended readings

Three tasks of comparative legal studies

• They involve description (legal mapping), explanation, evaluation
• Description involves Leibniz, variety or uniformity, macro or micro level
• Explanation involves historical and functional understanding for persistance
• Evaluation involves standards to be found
• All three steps need different research methods

Level of comparison

• Macro comparisons and micro comparisons should be functionally of doctrinally defined
• Information about law is important

Comparability

• Similarity is a necessary requirements
• Common properties and identical intensity should be considered
• One can use a meaning comparison via epistemic interest
• Legal implications involve social policy
• Investigations of compliance involve legitimacy of law etc

Comparing

• Systems in terms biased.
• Evaluative is present with tertium comparationis
• Comparatist must be a comparable phenomenon
• A methodologist is self reflective and avoids mistakes

Rival approaches

• They involve functionalism and contextualists
• Key focus on legal choice and effect of law

Comparisons

• This involves similarity of social function
• "Function"
• Zweigert suggests a reversible presumption
• The question that arises depends on how the terms should remain

Rules and Doctrines

• Questions including the purpose are present
• Functionalism is present with comparative legal rules

Questions of critique

• Water scarcity is a concern here
• This involves social engineering
• Laws expression involves culture

Criticisms

• These involve being ethnocentric and reliance on tradition
• Critical comparisons do not question the existing system
• The best test involves two opposite views