ATTENTION
Please note that this site is now an archive site and is no longer being updated. Updates ceased in May 2003.
For current information please go to
LA318
Comparative Legal Systems - TOPIC OUTLINES
Week Two
Theoretical approaches to comparative law.
The role of academics, judges and law reform agencies
in the use and development
of comparative legal method
CONTENTS
Introduction The role of judges/lawyers The comparison of laws and adoption of ideas and institutions from other legal systems probably occurred in ancient history. Certainly the Greeks seem to have borrowed from different city states, and possibly from the Egyptians. Greek law in turn influenced Roman law, particularly the law applicable to non-Romans the ius gentium. However this body of law was not seen as being foreign but as part of Roman law.
The sophistication of this body of law by jurists however took on a life of its own involving comparative research and jurisprudential analysis of many legal systems in the search for common denominators from which this international law could be formed. One major piece of comparative work was published around 400 Ad the Lex Dei or Collatio Legum Mosaicarum et Romanorum – a collection and comparison of laws from Rome and Mosaic (Hebrew) principles.
When the West Roman Empire fell, Roman law was preserved in the Eastern Roman Empire culminating in the codification of laws under Justinian. While in the west the invading barbarians brought with them their personal laws – i.e. the laws of their tribes. Thus in the west, Roman and Barbarian law co-existed and the written collections of these laws – Leges Barbarorum would have included both. The scientific or even academic study of law however suffered due to lack of trained lawyers, or legal scholarship. This revived around the tenth century, first via canon or church law – which was strongly influenced by Roman law, and then in the early universities, for example the Lombard School in Pavia, which studied canon law, Roman law and Lombard law (which included feudal and personal laws).
The revival of Roman law came with the Glossators and Commentators. Modernised or received Roman law took over from Germanic law and personal law and was favoured for its uniformity. This “new” Roman law became the common law of much of Europe and was nurtured in the universities and by a growing body of practitioners who studied only Roman law and Canon law. The new law was however a mixed system, drawing on the laws of the city states of Italy, canon law, ancient Roman law and the Roman law as glossed and updated by the glossators and commentators. Seen as a universal law, there was no demand for comparative law or comparative legal study until the sixteenth century.
The period of the Renaissance saw new interest in classical Roman law and legal science. Increasing nationalism in France and Germany led to renewed interest in native or customary law, and a comparison of these with Roman and Canon law. Customary law began to be reduced to writing which facilitated its study. The discovery of the New World also inspired greater legal research and some of the texts became the foundations for new legal systems, for example Huber’s comparison of Dutch and Roman law later became a reference work for the Roman Dutch law of land controlled by the Dutch East Indies Company in the Cape of southern Africa. In England the rift with the church brought about by Henry VIII led to the teaching of Civic Law at Oxford and Cambridge for the first time in the early part of the sixteenth century. Most of this comparative study was limited to laws which existed in pluralist systems.
In the seventeenth century a number of major comparativists emerged such as Grotius in the Netherlands, Seldon in England, Montesquieu in France, and Vico in Italy. The rise of the Natural Law School had an important influence on the search for universal truths. However most jurists were concerned with consolidating national laws in period of increasing legal complexity and litigation.
In the nineteenth century comparative legal study revived as the interest in legal science grew. An important centre of comparative research was established in Heidelberg in Germany where jurists such as Mittermaier enquired into all the laws and legal systems of the modern world. In France, after the initial complacency engendered by the Napoleonic Codes, the first chair of comparative law was established in 1846 at the University of Paris. In England both Bentham and Austin paid some attention to foreign legal systems although they were the exception to most English lawyers. However from the middle of the nineteenth century the work of the Privy Council in hearing cases from the British Empire brought a new dimension to comparative law, as did the international trade in which England was engaged.
In America there was considerable interest in comparative legal systems as the newly independent country sought to break from its colonial past. Both Kent and Story who were judges, writers and teachers of law in America, adopted a comparative approach, favouring in particular French civil law and at one stage it looked possible that American might become a civil law system. However by the time of the American Civil War enthusiasm for French law had largely passed and antagonism towards English law had been overcome. The latter half of the nineteenth century saw the rise in legal positivists and the focus was on organising, and analysing national legal systems with a view to finding legal principles of universal validity. Interest in legal history, the study of foreign law and comparative legal systems waned and had to wait until the next century to be taken up again.
Comparative law and an understanding of comparative legal systems became an important subject of academic study in the early part of the twentieth century. This was largely due to the impetus given to the subject by foreign emigrants from Europe to America in the years between the two world wars. Early writers in America with an interest in comparative law were people such as Professor I. Yntema, Ernst Rabel and Max Rheinstein as well as Americans such as Dean Pound. A growing need to know about foreign legal systems and to understand other legal systems has maintained interest in comparative legal study, along with twentieth century needs to harmonise laws and in some cases to achieve uniformity of laws.
It remains the case that some of the most influential writers and teachers of comparative law are descended from people who left their original legal environment: academics such as K. Lipstein; B. Markesinis; J. Jolowicz, A Von Mehren Post war academics have stayed in their countries of origin and written important works on their own legal systems from a comparative perspective, writers such as Rene David, Hein Kotz, Maurio Capelleti. Centres of comparative law have also been established. One of the earliest was the Berlin Institute in Germany in 1907. This was directed at the study of foreign and international private law. Other centres dedicated to the study of different legal systems have followed, for example, the International Academy of Comparative Law in Paris, the Centre for International and Comparative Law in London. Comparative legal study has become firmly established in university law programmes and the output of dedicated journals and texts has grown.
References
Pound D The Revival of Comparative Law (1930) Tulane Law Review 1, 15.
Hug W The History of Comparative Law (1932) 45 Harvard Law Review 1028
Comparative law is not a body of law made up of rules which are specific to one subject, as for example the Law of Contract. It has no core subject content and is not a separate law subject. It is more accurately a way of looking at law using the process of comparison.
De Cruz suggests that comparative law describes
The systematic study of particular legal traditions and legal rules on a comparative basis (Comparative Law in a Changing World 2nd ed. p.3).
The aim of Comparative Law is to look at law so as to make the legal system examined, understandable to those who do not share that society’s cultural and historical experience. Comparative law should, therefore broaden the understanding of a legal order and the broader philosophical, historical and sociological perspectives it reflects. For law and legal order is just one aspect of human experience and reflects the interaction of law and society. Thus some aspects of a legal order may be unique, other may be universal. In order to understand those elements that are unique and how they came to exist may require a more extensive understanding of the law and society in question than is possible in a short course on comparative law. What is manageable however, it to consider how a legal system orders human affairs. This can be done by considering how institutions and structures are arranged within a legal order and examining the general consequences of the way any particular legal order operates. For example, if you have a legal order, as in France, where legal issues involving the administrative machinery of government are heard before special administrative courts, then the body of administrative law is likely to be much more developed than in a system, as in England, where there are no special courts for this. Similarly, one might consider the importance and impact of the forms of action of the common law courts in influencing the development of equity in the English common law.
The study of how concepts and ideas are formulated into a legal order can be undertaken by seeking to understand not only the solution which might be offered to a particular problem, but also the intellectual and institutional structures within which lies the solution. It is with the latter that this course is primarily concerned when looking at different legal systems. So, we shall consider the historical development of a system, its general institutional arrangements – especially those with responsibility for the administration of justice, the approach to legal reasoning and the authorities underlying this, and the general characteristics and tendencies of procedural arrangements. The course will then look at those areas which usefully illustrate and test certain assumptions and operations of the systems being studied.
In order to be comparative we cannot look at the legal rules and procedures of one system in isolation but need also to look at the equivalent rules and procedures in at least one other system. To do this the comparativist has to appreciate that not only is law a product shaped by society but is also designed to serve the needs of that society. Kahn Freund points out that:
Under similar social, economic and cultural pressures in similar societies the law is apt to change by means of sometimes radically different legal techniques. The ends are determined by society, the means by legal tradition … (T)his applies to judicial as well as legislative law making. (1966) 82 Law Quarterly Review 45.
In other words the comparativist needs to look as the function of the law in fulfilling social objectives and not just structures. To understand the mechanisms of the law and to be able to see those mechanisms from the perspective of social functions. Kahn Freund gives a number of examples of similar problems approached differently indifferent legal systems using different legal techniques to arrive at similar socially desirable ends.
One example which he uses is that of the landlord’s liability for the maintenance and repairs of leased premises, and the obligation owed both to the tenant and others lawfully on the premises, especially the tenant’s family. In English common law the courts refused to extend the obligation to the tenant’s wife and children (Cavalier v Pope [1906] AC 428) and legislation was enacted – the Occupiers Liability Act 1957 s.4, which created a statutory tort..
In German law there was no statute to do this. However in the civil code there is a provision allowing for a contract in favour of third parties in limited circumstances (Para 328 BGB). The German courts interpreted this broadly, finding in the case of landlord and tenant an imputed intention on the part of the tenant to contract with the landlord in favour of third parties – namely his wife and children occupying the premises with him. Under this extension the third parties had a direct action against the landlord. Both systems achieved the socially desirable goal of protecting lawful occupants of the premises from harm due to negligent maintenance or repair on the part of the landlord but by different routes. The example demonstrates also how law can be changed by different techniques. For the comparativist the interest lies not only in the differences of approach – English law could not have taken the German approach because of problems with privity of contact – but also in the question of why are there different techniques and when will they be used. The example also demonstrates how the solution to the same problem may lie in different branches of the law or indeed outside the formal structure of the law entirely – for example standard form contracts may be adopted as usual practice which include terms covering all other occupants, or insurance issues may resolve matters. The comparative lawyer must therefore compare not only the solution and where it can be found but also the questions. What is a legal question in one society may not be one in another.
The purpose of comparative law or comparative legal study
Comparative legal study has gone through a number of phases. Early comparative study was almost a matter of necessity as different legal systems met each other or co-existed within a country. Later it was the study of foreign legal systems with a view to finding out more about these systems in order to foster international relations. Gradually such research was seen as being useful for the development of international law. It was also recognized that the study of other legal systems enabled researchers to gain critical insight into their own legal systems by stepping outside them and “looking back in”. With increasing demands on the law and legal framework from changes in society and technology the comparative legal method was seen as being one way of arriving at solutions to new problems by looking at the experience of legal systems dealing with similar problems. Increasing globalization and shrinking boundaries both of clients and their business concerns required lawyers to escape from the isolation of their own legal systems in order to advise their international or multi-national clients. In universities law teachers also had a responsibility to train lawyers equipped to meet these demands.
Since the mid- twentieth century and certainly in the 1980s comparative law has been used as a tool to inform legal reform and the harmonisation of regional laws. It is very common nowadays to find Law Reform Commissions drawing on different legal systems to explore the possible avenues which law reform might take. It is also common, and indeed has been for many years now, to find judges in one system referring to the judicial reasoning of judges in a different system. Often, but not always, the comparison is being made from a legal system of the same family. For example, a judge in Australia may refer to the legal reasoning of a case in Canada, or Hong Kong. This type of cross referencing is particular common where either judges are adjudicating in a jurisdiction other than there own – as happens with Appeal Courts in the Pacific region – or cases are coming to them from a number of jurisdictions – as with the Privy Council when it sits as a court, or increasingly the European Court of Justice or the European Court of Human Rights.
Reference
Kamba WJ Comparative Law: A Theoretical Framework (1974) 23 International and Comparative Law Quarterly 485
Since the time of the re-discovery of Justinian’s Code in the 1100s, universities and academics have had a role in the teaching of law and in legal development. This however has been much more significant in Civil Law systems than in English Common Law. The universities of Medieval Europe played a vital role in the study and commentary of Roman texts especially in Italy, France and Germany and also in the teaching of lawyers. The law taught in these early universities was Roman law as rediscovered. Indeed even in England classical Roman law was taught long before English law – along with ecclesiastical law. English law was learnt from lawyers, not university lecturers.
Early comparative writing focused on the comparison of national and Roman law, the national law often being customary law, whereas the Roman law was largely that of received Roman law rather than classical Roman law. In some instances Comparative legal study tended to be absorbed by jurisprudence and legal history, or with the study of foreign legal systems. Later the study of foreign legal systems was directed as resolving conflicts of laws or developing international law.
The teaching of foreign legal systems and comparative law came rather later. It is difficult to fix a date when comparative legal study became a matter of interest to academics. There was a chair of Historical and Comparative Jurisprudence at Oxford University held by Henry Maine in 1869. The first congress on Comparative Law was held in Paris in 1900 and Prof. Pollock presented a paper on the history of comparative law but made no mention of developments any later than 1800.
In the early part of the twentieth century there seems to have been a revival of interest particularly on the continent. Indeed, in 1936 Prof. R.W. Lee addressing the Society of Public Teachers of Law berated English academics for lagging far behind other countries in comparative legal studies. The latter became increasingly possible once original texts were translated and made available to students elsewhere. For example, in 1928 Professor Wigmore published “A Panorama of the World’s Legal Systems; and in 1946 H.C. Guttridge wrote Comparative Law: An Introduction to the Comparative Method of Legal Study and Research. The 1950s and the stabilization of Europe and its allies together with the first steps in the creation of a single European Community revived the interest in comparative legal studies in Europe and the need to learn more about other legal systems. Writers who were active in the period included Other writers who contributed to the growing body of early published works were: R. David (1950) Traite Elementaire de Droit Civil Compare, R. Schelsinger (1950) Comparative Law Cases and Materials, Eder (1950) A Comparative Survey of Anglo-American and Latin-American law, Hazard and Weisberg (1950) Cases and Readings on Soviet Law.
The emigration of many academics from Europe to America in the 1930s saw increasing interest in foreign and comparative law in American Universities as well as the growing publication of materials. The emergence of Japan in the post-war period also created new interest in the legal system of Japan, and the rise of socialism and later communism saw the development of new legal systems.
However, increasing emphasis on the role of universities in providing training for lawyers put subjects such as comparative law under pressure as “practical and useful” courses pressed in on the timetable. It was suggested by Rabel writing in 1947 that the research and teaching of comparative law ought to be done by specialized institutes, as had been done between the world wars in Germany. Alternatively some thinkers held that comparative law should only be attempted at post-graduate level. Where law is studied as a second degree – as in America – this may be more possible than where it is a first degree. While these pressures on legal education remain, it is also true that there is an increasing amount of material available to the would-be comparativist in translation. This is partly as a result of changing attitudes from practitioners themselves – see below – but also due to the mobility of academics, the development of inter-disciplinary degree programmes, and competitiveness among academics to carve out a research and publication niche where there is still space. This in turn is fostered by a growing number of law journals, competition for research funding and students between universities and market forces.
The importance of accessing primary source materials in its original form remains. However barriers of language, accessibility and time may prevent this. The role of the academic remains important in providing materials in translation, and in bringing together collections of sources and commenting on these. In systems where academic writings are viewed as a source of law or highly esteemed, then the role of academics can be important in the development of the law. It may also be the case that academics are involved in law reform processes and may be appointed as legal counsel or even judges.
Reference
W. Hug The History of Comparative Law (1932) 45 Harvard Law Review 1028
Kahn-Freund Comparative Law as an Academic Subject (1966) The Law Quarterly Review 40
The citation of cases from other jurisdictions in court decisions has been mentioned above. Sometimes judges will bring mention these cases and apply a comparative form of legal reasoning of their own accord. More usually this will depend on lawyers arguing before the court to do this. This is particularly the case in those systems where legal principles develop through case law and the argument is articulated in the case report – as in the Common Law. It is more difficult to see this happening in the case reports of Civil Law countries. The weighing of different legal approaches and to a degree their merger can be seen in courts such as the European Court of Human Rights. Here judges are drawn from the various signatory states to the Convention on European Human Rights and therefore from different jurisdictions and legal systems. As a plaintiff must have exhausted all domestic remedies before the matter can be brought to the court, cases reaching the court arrive with arguments already heard in the national system. Over a period of time the court is building its own body of case law and this brings together threads from cases coming from different legal backgrounds. The same is true for other trans-national courts such as the European Court of Justice or the International Court of the Hague.
The movement of judges across jurisdictions also has consequences. For example, English or French Judges may be seconded to courts in the Pacific, or in earlier times to India, South Africa or Malaysia. Sometimes these judges are ill-equipped to appreciate the different nuances of the law or the context of its development and application in the foreign jurisdiction. On the other hand, where such judges have travelled extensively and served a number of different jurisdictions they may return to their own jurisdiction with fresh perceptions.
If judges are to be encouraged to look as cases comparatively or to be offered alternative approaches to problems as found in other legal systems, then lawyers must be sufficiently knowledgeable about these to be able to argue convincingly. For a long time most practicing lawyers were largely ignorant about other legal systems. A number of factors are changing this. First, the growth of international clientele, not just in the large commercial sector but also private individuals and small businesses. Increasingly lawyers are engaged in advising on legal issues across jurisdictions, because people are more mobile and investment is more mobile. Secondly, the facilitation of the international recognition of professional qualifications has increased. This is particularly so in Europe. Thirdly, the establishment of law firms which have offices in a number of different jurisdictions. Large law firms today, like large companies, will have branches in Paris, New York, Berlin, Sydney, Tokyo and Rome for example. Employees may be moved around these different offices to acquire international experience. Fourthly, the legal profession itself is encouraging the sharing of ideas and experience through organisations such as the International Bar Association, international conferences of Judges, and international interest groups, such as family lawyers. Fifthly, there are more opportunities for law students to undertake student exchanges to universities or on placement during their legal studies. The possibility of studying at post-graduate level outside your home jurisdiction has also opened up. Finally, greater emphasis on the need for continuing professional development of legal practitioners has been recognized in many countries, so that there are opportunities for lawyers to broaden their minds and skills.
Reference
B Markesinis: Judge, Jurist and the Study ad Use of Foreign Law (1993) 109 Law Quarterly Review 622
Increasingly the foundation work for law reform is being handed over to specialist departments or bodies such as Law Reform Commissions. It is their task to make reports on the current legal situation, to highlight the problems and to suggest how the law might be changed for the better or to meet new needs. In undertaking this task it is common nowadays for reformers to look at solutions to similar problems in other systems. The terms of reference may be limited to the legal systems of a particular region or those affiliated through an umbrella organisation, for example “the countries of the Pacific Forum”. Alternatively the research may be limited to countries sharing the same “family” of laws, such as other Common Law countries, which, while they may have similarities may have very different approaches to the particular problem being considered by the reformers. Alternatively the reformers might look across systems because the problem is one which transcends boundaries between legal systems, such as cohabitation outside of marriage; legislating to deal with HIV/AIDS, regulating monopolies, protecting consumers, etc.
Where reforms are adopting this approach it is important that they are able to understand why a particular solution to a shared problem is formulated in the way that it is in particular legal system. Why for example, does French law have no problem with property contracts between co-habitees, whereas English law does? This knowledge is important if a recommendation is to be made that the law should be reformed along certain lines drawn from a different legal system. Some modifications may have to be made so that the solution is not only the correct one for the problem but compatible with the existing legal framework.
- Read the Case of White v Jones [1995] AC 207, in particular the House of Lords judgment and note the legal reasoning. Comment
Find a case of your own where the comparative legal reasoning or reference to other jurisdictions is notable.
Discussion topic: How can the comparative legal method help in the Pacific?
- Find a world map and make a copy
Create a table by centuries of major events in legal development. Leave space so you can add to it. Include in it the date when your country was first “discovered” or settled, the arrival of Europeans and the date of independence. You will probably have to leave more space for later centuries than early ones.
[About the School of Law] | [Courses Offered] | [Course Materials] | [Staff]
[Pacific Law Materials] | [Journal of South Pacific Law]
[Emalus Campus Library] | [Recommended Internet Links]
[Latest Additions] | [Search the Site]© University of the South Pacific 1998-2002
If you have any comments, suggestions or difficulties with using this web site please email
Robynne Blake, Internet Project Manager, The School of Law, The University of the South Pacific or fax: (678) 27785Last Update: Monday, June 02, 2003 08:20
