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Comparative Law

Introduction

Comparative Law is the study of the relationship between legal systems or between rules of more than
one system, their differences and similarities. Comparative Law is a method of comparing legal
systems, and such comparison produces results relating to the different legal cultures being analysed.
Comparative Law also plays a role in a better understanding of foreign legal systems. In this age of
globalization and the complexity and intertwinement of international public and private law, it plays an
increasing important role in international harmonization and unification of laws, thereby leading to
more international cooperation and a better world order. Legislators increasingly make use of foreign
law in drafting new legislation and in more and more countries courts draw inspiration from abroad as
well. The increasing importance of comparing legal systems is true not only for the academic discipline
of Comparative Law as such (where the focus is usually on methodology), but also for specific areas of
law.
This Research Guide is intended as a starting point for research on Comparative Law. It provides the
basic legal materials available in the Peace Palace Library, both in print and electronic format.
Handbooks, leading articles, bibliographies, periodicals, serial publications and documents of interest
are presented in the Selective Bibliography section. Links to the PPL Catalogue are inserted. The
Library's classification index code 347. Comparative Law in General and subject heading
(keyword) Comparative Law are instrumental for searching through the Catalogue. Special attention is
given to our subscriptions on databases, e-journals, e-books and other electronic resources. Finally,
this Research Guide features links to relevant websites and other online resources of particular
interest.

Legal systems
Introduction: profusion and variety
There are hundreds of legal systems in the world. At the global level, international
law is of great importance, whether created by the practice of sovereign states or by
agreement among them in the form of treaties and other accords. Some transnational
entities such as the European Union have created their own legal structures. At the
national level there are over 180 sovereign states in the United Nations Organization.
Many of these are federal or confederal, and their constituent parts may well have their
own law.
But, despite this great variety, it is important to begin by emphasizing one great
division: that into religious and secular legal systems. Each side of this split holds quite
different views as to law, in its source, scope, sanctions, and function. The source of
religious law is the deity, legislating through the prophets. Secular law is made by
human beings, and one of its most famous examples begins with the words 'We, the
people'. It follows from this difference in their source that religious laws are perceived
to be eternal and immutable, while secular rules can be changed by their makers.
Religious law tells people what to believe as well as how to behave, whereas secular law
deals with our external actions as they affect others. In a religious legal system
disputes are usually adjudicated by an officer of that religion, so the same person is
both judge and priest. In a secular system, by contrast, the office of judge is separate,
and is often reinforced by guarantees of judicial independence. A further difference lies
in the enforcement of the laws: in a secular system sanctions are imposed in this world,
and its severest punishment (the death penalty) amounts to forcible removal from the
jurisdiction. The sanctions and rewards of a religious system may also occur in this
world, but are often to be felt most keenly in the next.
Nowadays there are few countries whose legal system is exclusively religious, though
some (mainly Muslim) aspire to this. By contrast a large number have secular systems,
and this feature may be built into their legal structure, as in the 1958 French and the
1993 Russian constitutions, or the very first words of the First Amendment to the
American Constitution, which came into force in 1789: 'Congress shall make no law
respecting an establishment of religion'.
A number of other countries have 'dual' systems in which religious rules govern, and
religious courts adjudicate on, such matters as marriage, divorce, family relationships
and possibly family property, while a secular system with state courts covers the wider
fields of public and commercial law. This was the position in England until the 1850s,
and is the case today in Israel, India, and Pakistan, while in some African countries
these more private areas are ruled by local ethnic and religious custom. In these dual

jurisdictions, the proportion of human activity governed by one or the other system
may well depend on the stage of economic and political development of the country in
question. This leads to a difficult area of enquiry, of which all that can be said in this
context is that in some countries a sophisticated secular system may well exist, but
only on paper.
A word should be added here about the place of law in human relations, for different
peoples and different epochs have taken very different views on the matter. For some
law is an aspiration, for others a blight. Some societies are proud to proclaim 'the rule
of law'. Others see it as fit only for barbarians and put their trust in the ethical or
customary matrix of the community. For instance, this seems to have been true of
China both under the Emperors and in the years of the Cultural Revolution (1966-76).
What follows deals with positive legal systems, and not with the views of a given time
or people as to the place of law within society. Such matters are proper to a study of
comparative ideology, politics or sociology. At the same time, the reader should
remember that the underlying justification for the legal system is often perceived in
broader terms than mere utility. This is well illustrated by the Canadian Constitution Act
1982 which begins by stating that 'Canada is founded upon principles that recognize the
supremacy of God and the rule of law.'

Classification
Although each system has its own individuality, it is possible to group many of them
into legal 'families'. The advantage of this is that, if successful, it saves time and energy
in description or prediction. Inevitably, of course, classification depends on the criteria
used. In the past, legal systems have often been grouped by geography, race,
language, religion, or official ideology. Here, it seems more useful to classify in terms of
the systems' substantive features, and to devote most attention to the larger families.
The result of classification will differ greatly depending on whether we concentrate on
public or on private law. With the former, our criteria would be the state structure and
the relations of government entities (including the courts) with each other and with the
citizen, and the field would range from constitutional law through administrative and tax
law to the penal system. The latter classification, more traditional but very useful in
some respects, looks mainly at how a legal system treats the law governing relations
between private persons, including such matters as their property, their testaments,
marriages, contracts and so on. Thus a country may resemble one family for private law
purposes and another for those of public law. For instance, the private law of England
stems from the 'common law'. That of Scotland does not. But both are governed by the
same constitution which, unlike those of most common-law countries, is not written in
one document and does not limit the ultimate powers of the legislature.

Constitutions
Constitutions differ widely, and for good reason. Some have to provide for a federal
structure, some, although unitary, include quite different legal systems within the one
state (e.g. Britain, Canada). Some have to handle serious internal ethnic, linguistic, and
religious differences, while others are written for a homogeneous population. Some are
largely restricted to a set of justifiable rules of law, while others contain manifesto-like
proclamations and show a tendency to the picturesque by, for instance, the adoption of
a national animal (always attractive, but rarely edible). Some are never meant to be
taken seriously. A few are contained in no given text or texts, notably in Andorra,
Israel, New Zealand and the United Kingdom. Of these four, only the last will be
discussed in any detail.
The differences in constitutional features have two different motivations. The first is
practical: obviously a federal document will contain material absent from a unitary one.
The second feature is the existence of value preferences prompted by national history.
The constitution-makers in different countries, or at different moments in the history of
any one country, have quite different preoccupations. The reason they are drafting a
new constitution is a change in circumstances. Thus all constitutions contain elements
that are autobiographical and so idiosyncratic. Different historical contexts have
generated different preoccupations and priorities, and these in turn have led to quite
different constitutional structures. Even among those drafters who admired the oldest
enduring text which lies to hand - that of the USA - it is striking that, while its first
three words ('We, the people') and its Bill of Rights may be often imitated, no one ever
copies the structure of the Constitution itself.
For these reasons the only generalizations that can be reasonably be made are the
following. First, constitutions aspire to regulate the allocation of powers, functions, and
duties among the various agencies and officers of government and to define the
relationship between these and the public. Second, no constitution, however well
designed, can protect a a political system against effective usurpation. Third, in many
countries the holders of power ignore the constitution more or less entirely. Fourth,
even where constitutions work, none is complete: each operates within a matrix of
compromise, custom or caselaw. Fifth, most begin by identifying (at least on paper) the
constituent authority (such as 'the people') and often invoke the deity
(e.g. Canada, Germany,Greece, Ireland, Pakistan, Switzerland). Sixth, they usually
separate the legislative, executive and judicial organs of state. Seventh, they usually
contain, or incorporate, a Bill of Rights. Eighth, they often provide some method for
annulling laws and other instruments which conflict with the constitution, including the
Bill of Rights. Ninth, they address the international scene only in generalities and, in
practice, confer wide powers on the (federal) executive. Finally, they deal with the
status of international law by either according or denying it direct internal effect.

Adoption and amendment


The idea of endowing a country with a single written constitution is relatively modern,
though now widespread, so that the UK is one of the rare exceptions. Furthermore in a
large number of countries the constitution follows some decisive event in national
history: war, revolution, independence, federation and the like. This ensures that
methods of adoption vary widely. The oldest and most prestigious - that of the USA was adopted by agreement among the 13 states followed by ratification by elected
conventions within them; its Bill of Rights (technically, if confusingly, called
Amendments) was ratified by the State legislatures. By a seemingly similar method, but
in the very different circumstances of the defeat of Nazi Germany, the constitution of
the Federal Republic of Germany, finally approved by a Parliamentary Council and called
the 'Basic Law', entered into force when notice of its ratification by representative
assemblies in over two-thirds of the Laender was published: on 23 May 1949. By
contrast, one of the most recent documents - that of the Russian Federation - bypassed the legislature (which the President had dissolved) and was voted directly by the
people on 12 December 1993. According to the official returns, 54.8% of the electorate
voted, of whom 58.4% were in favour. In between these two methods are many other
techniques such as that of the 1958 French constitution which involved both approval
by the legislature under procedure laid down by the existing constitution and then by
the people in a referendum.
Both legal and political importance attach to the methods by which a constitution may
be amended. They may divide the amending power among people, legislature, and
executive, or between a federation and its components. They may express basic values
by declaring certain features to be unamendable: the republican form of government
in France and Italy, and in Germany the basic human rights and the federal structure.
Some constitutions specify that matters like this may be amended only by referendum
or by an entirely new constitution (e.g. the new Russian document). In federal systems,
amendments normally require special majorities in the federal legislature followed by
ratification by a special majority of the states. This is the US provision, now adopted for
some types of amendment by the Russian Federation.
A common method is to require a special majority in the legislature - two-thirds in
Germany, three-fifths in France, with similar systems in India and other Commonwealth
countries (and this used to be the pattern in the Soviet bloc). Another parliamentary
alternative is to require a second vote (Italy, Denmark, Finland). Finally, some systems
divide the amending power between legislature and people, by requiring a referendum
either for certain types or methods of amendment (Denmark, France, Ireland) or for
any (e.g.Japan).
Unlike the systems just described, the UK constitution is indeterminate, indistinct and
unentrenched. It is found in no single constitutional document. The volumes entitled

'Constitutional Law' in the official edition of the 'Statutes in Force' print 138 Acts of
Parliament, while a quite separate volume on 'Rights of the Subject' gives another
thirty-two, including what is left of Magna Carta 1215. Furthermore many matters in
written constitutions, such as the procedure on a finance bill or a vote of no confidence,
are governed entirely by custom, convention and Standing Orders of the Houses of
Parliament. The basic constitutional instruments are presumably those of 1707: the
Treaty of Union and Acts of Union of the English and Scottish Parliaments. From 1800
Ireland was also part of the UK until the Ireland Act 1949 finally admitted that it was no
longer part of His Majesty's dominions. Since 1922 the UK has in effect consisted of
Great Britain and Northern Ireland.
The British constitution is indistinct in that there is no way to tell whether 'ordinary'
laws are in conflict with those forming part of the constitution (although since 2 October
2000 the courts may declare that a particular statute (though still valid) is incompatible
with the Human Rights Act 1998. The constitution is unentrenched in that any element
may be changed by an Act of Parliament passed in exactly the same way as any other
piece of legislation.

Federalism
In federal constitutions, listed powers are often allotted to the center, with the residue
being left to the constituent parts. In practice the main powers of defence, taxation,
and commerce go to the center, and federal laws override others. The constituent parts
are protected, at least in theory, by representation in the upper house and by their own
powers of governance in their territories. In this regard, the Russian Federation
continues the USSR's system of a multi-level system of constituent parts to
accommodate the polyethnic mix, though the old secession clause is gone. Broadly
speaking the component entities retain the relative status accorded to them on paper
when they were parts of the RSFSR which was itself within the Soviet Union: and the
roots of the divisions are more a matter of geography and ethnic history than of
politics.
The UK is not a federation, but it embraces four different legal systems: of England and
Wales, of Scotland, of Northern Ireland, and - for general matters such as tax and for
international purposes - that of the UK. In addition, the British government is
responsible for the defence and international relations of the Channel Islands and Isle of
Man, which are not part of the UK. Their citizens are not represented in (and therefore
not taxed by) the UK Parliament, their basic legal system is not that of the mainland
and, with their consent, laws are made for them by the Queen in Council (i.e. the
British executive).

General Constitutional Features

Although constitutions vary greatly in length, usually the greatest detail is devoted to
legislature and executive and the relations between them. Federal systems naturally
have a bicameral legislature. But so also do many unitary systems with the lower house
directly elected and the upper composed of those perhaps representing rural interests
(France) or possessing special skills (Ireland). In most countries (but not the USA) the
lower house can ultimately override the upper.
Two widespread patterns are those of the presidential and those of the parliamentary
system. The first fuses ceremonial and political power into one office, with its
incumbent elected directly and quite separately from the legislature: it is thus quite
possible (and in the USA, common) for the President to be of one party and a majority
of the legislature of another. It separates executive and legislative powers so that
neither body can dissolve the other: the President is removable only for grave crime, in
which the legislature acts as a tribunal. The President nominates Ministers for
confirmation by the legislature, but there is no collective cabinet responsibility. The
President usually has a veto over legislation, which may be overridden only by special
parliamentary majority. On the other hand, the crucial power to tax remains with the
legislature.
The new Russian structure embodies several of these features, but expands the
presidency in a number of ways. First, following a tradition going back to the Tsars, the
office of the President is given wide power to rule by edict (ukaz). Apart from the need
to comply with the constitution and with federal legislation, this power seems virtually
unlimited. Second, the President appoints the prime minister (with the consent of the
lower House) and may dismiss the government. As in the US, the Russian President
may veto legislation, but can then be overridden by special majority. Finally, the
President can dissolve the lower House and call new elections if it thrice rejects his or
her candidate for premier, or if it passes a motion of no-confidence in the government.
In the parliamentary system, the Head of State is distinct from the head of government
- called Prime Minister, Premier (or, in Germany, Chancellor). The Head of State may be
a hereditary monarch or directly elected President, but the premier is not directly
chosen by the electorate, but appointed from the majority or coalition group in the
legislature. The premier and other ministers have no fixed term of office but can in
principle be forced to resign by parliamentary vote of no confidence in the government.
This is usually balanced by executive power to dissolve the legislature and call new
elections (although there may be some protection against hasty or repeated
dissolutions). The premier and ministers dominate in two directions. First, although on
paper the Head of State's powers look impressive (convoke the legislature, promulgate
laws, grant pardons etc) in practice these are exercised on the instructions of the
government. Second, the executive controls the legislative timetable and usually has
the exclusive power to introduce finance bills.

Some systems are a mixed parliamentary/presidential structure. For instance in the


France the President is far from being merely a titular Head of State. Since 1962 he or
she is directly elected by the people, appoints the premier, has emergency powers, and
signs the regulations emanating from the executive's very extensive lawmaking
functions. In association with the government he or she can present bills to the people
to enact by referendum, thereby bypassing the Parliament, and can dissolve the
National Assembly and call new elections.

The Judiciary
When it comes to the judiciary, separation of powers is apparently taken quite seriously,
although in England this is obscured by the fact that the upper House of the legislature
has the same name as the highest court, and its Speaker (the Lord Chancellor) is the
senior judge. In many systems, judges are independent and irremovable. In Russia this
is expressly stated, but is a frail novelty. In the USA and UK it is not stated but is the
case.
The only topic which merits brief discussion here is the relation between the
constitution, the courts, and the legislature. The USA is virtually alone in allowing any
court of general jurisdiction to decide matters of constitutionality. Normally such
questions are for a Supreme Court or special Constitutional court. The French
innovation allows bills to be referred only after they have passed through Parliament
and before they are promulgated by the President. In England a court can examine the
validity of a duly enacted statute unless it conflicts with the law of the European
Community; the same may be true of Scottish courts, although some say they could
examine UK statutes for conformity with the Act of Union 1707. Since October 2nd
2000, when the UK Human Rights Act took effect, English courts are able to declare a
statute incompatible with the rights enshrined in the Act. This does not invalidate or
render the statute ineffective: it is then up to the executive and ultimately the
legislature to decide what to do about the offending legislation.

Emergency powers
The greater the constitutional commitment to a Bill of Rights, the more difficult it is to
frame emergency powers. On the one hand the executive must be permitted to take
emergency action; on the other the emergency power should not be capable of being
used to subvert both the legislature and the Bill of Rights. The usual safeguard is to
forbid the executive to use emergency powers to suspend, or curtail the power of,
either of the other branches of government. Whether such provisions are effective in
any given country is a matter of politics, not law. In the UK a permanent statute
permits the government to proclaim a state of emergency, but regulations are subject
to Parliamentary scrutiny. Special powers to deal with threats to security in Northern
Ireland have been on the statute book for most of the twentieth century. The statutes

restrict freedom of association and confer wide powers of arrest without warrant and, in
Northern Ireland, limit the use of release on bail and jury trial. They are subject to
annual renewal by Parliament.

Human Rights
The older pattern of constitutional protection of human rights is usually expressed by a
negative: Congress shall make no law abridging the freedom of the press; the right to
keep and bear Arms shall not be infringed; the right to be secure shall not be violated;
no person shall be deprived of life, liberty, or property without due process of law. This
century has seen the addition of positive claims on the state - to education,
employment and so on - and entitlements against discrimination on the grounds of
gender, religion, nationality and the like. Such provisions are often declared to be
entrenched and to bind legislature, executive and judiciary. To what extent these Bills of
Rights are effective is more a matter of political power, than of legal technicality.

Common Law and Civil Law


On looking at the historical development and substantive features of the legal systems
of the world we can see that many of them fall into one of two families. In the whole of
human history only two peoples seem to have founded a secular, comprehensive,
enduring, and widespread legal system: the Romans of the Ancient World and the
Anglo-Normans of the Middle Ages. The pedigree of the civil law goes back to Ancient
Rome, although the later customary family law, and the canon law of procedure have
also marked the system. The Common Law world begins in England. Of course within
each family there are major differences between individual members, but each is still
quite clearly not a member of the other family.
The best way to explain the main elements of the Civil and the Common Law families
and to compare and contrast the two is to look at the following features.

Beginnings
The Common Law was conceived in 1066 and born of a union between older Saxon law
and the custom of the Norman conquerors. The Civil Law was older then than the
Common Law is now.

Nurture
The Common Law was nurtured in London lawcourts, by judges and barristers. The
older Roman Law was developed - to an important extent - by jurists, who were not
practising lawyers but public-minded citizens. It was they who strove to expound,
explain and adapt the ancient and sporadic legislation and the edicts of the officials; the
high-point of their contribution occurred in the decades around 200AD.

Spread
The Common Law spread only by conquest and colonization: no one ever accepted it
freely (and the countries of the former Soviet bloc are taking their models from the civil
law, not the common law). The Roman part of the Civil Law, preserved in Justinian's
collection of 533AD, was rediscovered in the 11th century, embraced by theUniversity
law schools of northern Italy (see also here), and spread from them throughout
continental Europe. From there, and like the common law, it went to the New World and
to parts of Africa by colonization. But, especially in the 19th century, the French and
then the German versions were selected as models by countries in the Middle and Far
East.

Language
Although originally written in Latin and spoken in Norman French, the language of the
Common Law today is virtually only English. Wherever some version of the common law
is in force, the native or official language of the country is English. The legal vocabulary,
however, is likely to be markedly technical if not arcane and to contain much dead
French and Latin. By contrast, the Civil Law is found in most languages.

Makers
The main creators of the Common Law are the judiciary: that is to say the matrix, the
basic operating system, is laid down by caselaw. Recruited from the ranks of successful
practising lawyers, the judges speak with individual and distinctive voices: they lay
down the law. The great names are well known in common-law countries, and in the
USA and Canada the highest court is an institution of enormous power and prestige. In
civil-law systems, at least until very recently, judges played the comparatively minor
role of settling the dispute in front of them. They did not make the rules of the system,
and their decisions are not cited in later cases. Appointed to the Bench in their middle
to late twenties, they are civil servants who, in principle, rarely sit alone but in groups
of three. They are trained to produce just one decision - that of 'the court' - written in
the dry laconic prose of a bureaucrat.

Legislation
Of course the modern countries of both systems produce large amounts of legislation.
But that of the common-law countries tends to be piecemeal. Save for the constitution,
and fiscal matters, basic principles are not enacted (except as codifications of existing
caselaw in such statutes as the Partnership Act). The typical statute merely adjusts
some detail of the rules laid down by the courts. In complete contrast, modern civil law
systems tend to think of themselves as 'codified'. The word 'code' in this context means
that a whole area of law is laid down in one legislative document which aims to provide

a closed, coherent and consistent set of propositions which, if used in good faith, can be
applied to solve any dispute in that area. The most obvious example is that of a
criminal code. Historically, however, the most influential models have been the civil
codes of France (see also here) (1804) and Germany (see also here) (1900). These
deal with non-criminal private law, that is the rules on persons and family, property,
wills and intestacy, contracts, torts and so on. Such codes also provide the general
pattern of thought in the whole legal culture, acting as a default system for gaps
elsewhere (for instance in the laws regulating employment or the environment). So
important are they that a French lawyer will call the Civil Code 'le droit commun' (the
common law) and will aver that French law is codified. It is not: administrative law and
conflicts law are found in no coherent code; but the assertion illustrates the impact of
the great Civil Code.

Precedent
Where the basic principles are contained in an enacted code, this is the source of the
law. Judicial decisions do not make law because they do not need to. So, for instance,
the Austrian Civil Code 1811 - which lays down the basic rules of private law - can
sensibly provide: 'Decisions in individual cases and the opinions handed down by courts
in particular lawsuits never have the force of law; they cannot be extended to other
cases or to other persons.' ('2) This approach is fortified by the historical fact that civillaw judges did not see their job as creating law, the professional fact that they are
career civil servants, and the political fact that it is thought more democratic to entrust
lawmaking to the elected representatives of the people. Common-law perceptions are
quite different. Historically, the judges made the law. Furthermore, to this day the
legislator in common law countries does not lay down the basic rules of the legal
system. But they are needed, and so a notion of precedent comes into being. For
instance, the English parliament has never defined murder, never laid down that you
must keep your contracts, or pay compensation for damage unlawfully caused to
others. Since such definitions and rules are necessary, courts and lawyers can find them
only in earlier caselaw. And since it would be absurd and unfair if judges could re-make
the basic law of murder or of contract in any case before them, a rule of 'precedent'
binds them to the law as declared by higher courts in their jurisdiction. This means
that, in deciding a legal issue, the common-law judge must come to terms openly and
honestly with any rule laid down by precedent, just as a civil-law court has to face up to
the rules laid down by the legislator. The doctrine of precedent is an operating rule of a
common-law system: so the rule itself was never laid down by a legislator. It is a
judicial creation and can be amended or adapted by its makers. So in England, for
instance, the highest court (the House of Lords) held in the 19th century that it was
bound by the law laid down in its own prior decisions. In the 1960s is amended that

rule and gave notice that it was now free, to change its mind. Lower courts, however,
are bound by the highest court's rulings on matters of law.

Fact
Legal disputes are as much about fact as about law. The work of the lower courts, in
particular, is very largely taken up with determining issues of fact. The common law and
the modern civil law both developed in territories where such matters were decided by
ordeal, oath or battle. On discarding these methods, the two systems took different
paths. The judges who built up the common law system were few in number, and left
the hard work of fact-finding to non-lawyers: the jury, originally of neighbours who
might be thought to know the background, and then of disinterested strangers
empanelled to hear the evidence and decide. Nowadays only the USA makes much use
of the jury for non-criminal matters (as required by the VII Amendment), but its ghost
rules the procedure of all common-law countries. The very word 'trial' suggests a single,
continuous and relatively short session in which all the evidence is presented to a jury
who knew nothing about it beforehand. Similarly, there is no need for the judge to be
acquainted with the case before the trial begins. The proceedings are oral, since that is
the quickest and most effective way of conveying information to a number of
laypersons. And their verdict is difficult to overturn, since an appellate court has not
heard the evidence directly nor seen the witnesses in person. The civil law systems, by
contrast, have always left the task of finding the facts to a professional judge. This has
a number of consequences. First, there were always far more judges in civil- than in
common-law countries. Second, the judge could be given more control from the outset
of the dispute in deciding which witnesses to call and what questions to put to them.
Third, the procedure could be more sporadic, spread over a number of sessions, and
reduced to writing: the civil-law word often mistranslated as 'trial' is le procPs, der
Prozess - a better rendering is 'the proceedings'. Fourth, the rules of evidence can be
flexible, since a professional judge is presumed capable of accurately assessing
testimony. Finally it is easier for a higher court to correct or revise a decision.

Structure
One result of the above features is that in common-law countries the legal system is
not organised in a coherent and clear structure. Its development tends to be
incremental and casuistic, and it is not easy for the foreign lawyer to approach. Civil
lawyers, on the other hand, lay great emphasis on system and structure. Furthermore,
they tend to follow similar patterns in their organisation of legal topics, and once these
are understood it is relatively simple to locate the law on any given topic.

Incidence

Some version of the common-law is found today only in places once occupied by the
British, among themIreland, the USA, Canada, Australia, New Zealand, India, Pakistan,
Kenya, Uganda, Zambia, Nigeria and Ghana. But (except for the special case of Israel)
no country which has the common law seems able or willing to get rid of it.
So far we have spoken of the Civil Law in general, in comparing it to the Common Law.
Within the former family, however, there are two great sub-branches. For one of them
the French approach has largely been the model, for the other the German. The French
have, directly or indirectly, influenced Belgium, the Netherlands, Mauritius, Quebec,
Louisiana, Italy, Egypt, Algeria, Tunisia, Morocco, Sub-Saharan Africa, Spain, Latin
America. The German model was followed later in such countries as Japan, Greece,
Thailand, Taiwan, Portugal, Brazil.
Some systems, while recognisably those of the civil law, have rather gone their own
way in the organisation of their private and commercial law, for instance Austria (1811)
and Switzerland (1907, 1911). Finally there has been much rethinking of the heart of
private and commercial law in Quebec and the Netherlands and both have recently
adopted an entirely new Civil Code.
Those countries of Eastern Europe which, before they became Soviet satellites, had
their own civil-law systems (such as Poland, Hungary, and of course the German
Democratic Republic) have turned again to their earlier tradition.

Other systems
Outside the two large legal families are a number of systems, some relatively easy for a
Western lawyer to understand, others much more remote.

'Mixed' Systems
In the first group are countries with a 'mixed' system influenced by both civil and
common law. The older uncodified civil law of Holland is the basis of the Roman-Dutch
law of South Africa, Zambia, Namibia, Lesotho, Swaziland, Botswana and, on the other
side of the ocean, Sri Lanka; it is marked by a rich juristic literature stemming from
Hugo Grotius (de Groot) in the 17th century. But their long contacts with Britain mean
that their public law and systems of court procedure owe much to the common law.
Scotland, Louisiana, Mauritius and Quebec are examples of a private law based on older
civil and customary rules (uncodified in Scotland) struggling to endure in a common-law
environment. Israel has a system all its own, where the older Ottoman and British
mandate layers are now overriden by a modern system. It has no single constitutional
document, but much of the modern law combines the broad legislative simplicity of the
great codes of civil law with the careful transparency of the common-law judgment.

Nordic Europe
The legal systems of Denmark, Finland, Iceland, Norway and Sweden do not fit neatly
into the civil-law pattern. Their original Germanic public and private law was collected in
legislative form long before the rationalising fashion of the French model: in Denmark
(1683), Norway (1683), and Sweden-Finland (1734). Marked by relatively small
populations with a high standard of living, economic efficiency and the ideals of the
modern welfare state, they have adopted much uniform legislation especially in the
fields of commerce and family law.

Socialist law
Until recently, the USSR and its satellites proclaimed that their socialism was producing
an entirely new form of law, not to be judged by or even compared with the older
systems. This view was said to be the scientific conclusion of a Marxist analysis. Even in
those days, however, the systems' documents looked, on the surface, familiar:
constitutions and civil codes many of whose rules bore - at least on paper - a strong
resemblance to the traditional provisions.
The USSR's peaceful disintegration into 15 sovereign states has provoked much activity
in fashioning new structures. Most of the states by now have a new democratic
constitution and are drafting the rest of the legal system. Among the last acts of the old
USSR was the enactment of a comprehensive framework of Basic Principles for private
law. It was used in Russia as an interim instrument until the Civil Code of November
1994. In time the statute book will probably look much like those of the civil-law
German-speaking countries. More problematic is the personnel to run the system, in
the shape of lawyers and, above all, of judges who are well-trained, wise, and honest.
From its inception in 1949, the People's Republic of China's declared aim was to attain
socialism. It abrogated all earlier legislation and during the next decade much of the
formal law appeared inspired by Soviet models. But the 'Great Leap Forward' of 1958
emphasised ideological leadership, law was denigrated and degraded during the Cultural
Revolution (1966-76), and it was not until the 1980s that something resembling a
recognisable legal system began to appear. Under the 1982 Constitution (see
also here), China - despite its size - is not a federation. The People's Congress is the
named legislator and the 'executive' is the State Council, although much power remains
with the Chinese Communist Party. The pre-Cultural Revolution legal structure has been
partly resurrected, and a legal framework of codes enacted. The Basic Principles of Civil
Law contain many provisions that would be familiar to Western jurists. The actual
functioning of the system, however, is affected by the persistent attitude that makes
law subordinate to the decisions of central and local political authorities.

Islam

The number of Muslim countries is growing, but the main common feature is the Islamic
religion which aims to cover all areas of life, not merely the spiritual. It thus has the
features of a religious system of law, as described above. In its strongest formulation,
some Islamic scholars state that law cannot exist outside religion and therefore the
state has no power to legislate. But in practice the religion is found in countries with
very different histories, whose formal legal systems vary from the absolute sovereignty
of some Gulf states through the French and Swiss-influenced codes
of Egypt and Turkey, the common-law patterns of Pakistan and India, the Soviet
structures of the central Asian republics, to the revolutionary councils and tribunals
of Iran.

Hindu law
Unrivalled in age and continuity, the Hindu law found
in India, Myanmar, Nepal, Pakistan, Malaysia and parts of East Africa is contained in a
literature which is vast, complex and seemingly impossible to summarise. Its laws and
customs are derived from sages of the past who were themselves taught by a creator, it
preaches the birth, death and rebirth of living things, and its precepts cover many more
activities than does any secular legal system. In the countries mentioned, however, it
governs only the personal and family relations of those involved and its family law has
been codified and much amended, especially in India. Nonetheless it can affect the lives
of some 450 million people.

Customary laws
In many parts of the world unwritten local or tribal custom sets the standard of
behaviour and provides for conciliation and dispute settlement. Most of the African
countries, for instance, have a formal constitutional and commercial law inspired by
French, Belgian or British models but remit the relations between private individuals to
the appropriate customary framework.

Criminal Law
Crimes are wrongdoings seen from the point of view of the society in which they occur:
the convicted wrongdoer may be punished. Torts include the same wrongdoings seen
from the point of view of their victim: the wrongdoer may be ordered to pay
compensation. Sins include the same wrongdoings seen from the point of view of a
faith; they call for repentance and atonement. Thus all three systems agree in
condemning the most common acts of wickedness - murder, rape, robbery, violence,
theft and the like. Once such acts occur, however, the secular responses seem in
practice weak. Relatively few crimes are solved, few criminals convicted. Almost never
are they made to compensate their victim.

Nonetheless many societies attach great importance to a system of criminal justice:


laws which define crimes and provide the sanctions; procedural rules for establishing
guilt in a court; and a set of methods and places of punishment and rehabilation.
Furthermore the types of actions declared to be criminal are, in all major matters, much
the same everywhere.
As with the area of the ordinary non-criminal private law, the system in the 'civil law'
world has developed from two main sources: first the Napoleonic codes of penal
procedure (1808) and penal law (1810), and then the German penal and procedural
codes (1871, 1877). A key figure in the criminal procedure of many civil-law countries
is the juge d'instruction who supervises the pre-trial stages. The use of a jury is
uncommon save for very serious crimes, though Russia is introducing the system. On
the other hand the first instance tribunal often comprises one judge and two lay
persons, all of whom deliberate together and decide on guilt and sentence. Another
common feature (at least in theory) is the presence of the victim as 'civil plaintiff', so
that the same court can convict the accused, assess the victim's injury or damage, and
order the accused to pay compensation.
Countries of the 'common-law' world began from the English criminal law but, unlike
England, now normally have a comprehensive and coherent penal code (the British
parliament has never defined murder: this has been left to the courts). A typical feature
of these 'common-law' systems is that, for all save relatively minor offences, the
decision on guilt or innocence is taken by a jury of lay-persons selected for that case:
this has a profound effect on the conduct of a trial and the presentation of evidence.
Another feature is that the victim who seeks compensation must start another lawsuit
before another court.
Whatever their origin, most legal systems agree on certain basic premisses. First, that
no one can be guilty of a crime unless the offence is defined as such beforehand, and
the conviction arrived at by a lawful procedure. Inherent in this is the requirement of
clarity in criminal law, a prohibition against its retrospective effect, and certain notions
of 'fair trial' and the availability of legal representation. Second that no one can be
prosecuted twice for the same thing. Third that deliberately criminal conduct can be
punished although it did not succeed - it is a crime to attempt a crime, or to conspire
with others to commit one.
The fourth common premiss is harder to explain. The essential ingredients of a crime
contain both a factual and a mental element. The first covers certain (not involuntary)
human conduct in certain circumstances, and sometimes with certain consequences: for
example stealing involves taking someone else's property; on a charge of homicide the
prosecution must prove that the victim is dead. The second means that it must
normally be shown that the accused deliberately or recklessly did the forbidden act. The
important point here is that, as a general principle, mere carelessness (or stupidity) is

not a crime calling for punishment, but at worst a tort calling for compensation. Thus if
you make off with my raincoat, honestly thinking it yours and not even seeing the risk
that it might not be, you are not a thief: you did not deliberately or recklessly intend to
take someone else's property. Of course if my name is marked inside it then you may
have been careless, in which case you may owe me compensation. But you are not a
criminal: stealing is dishonesty and you were (though negligent) perfectly honest. To
this general principle there are important exceptions: careless driving is an obvious
example and, where death is caused by gross negligence there may some homicide
charge less than one of murder. Furthermore in many systems a number of (relatively
slight) offences may be committed without any mental culpability at all. The reasons
given for this include the need to protect the public and the difficulty of proving any
mental element. Examples include the use of unroadworthy vehicles on a public
highway.
Most systems accept that criminal liability is not to be imputed to certain classes of
people: the very young or persons under severe mental illness. Systems also recognise
a number of exculpating or mitigating circumstances such as self-defence, provocation,
suicide pacts and the like.

Private Law
Private law is the name commonly given to that vast area dealing with the legal
relations between persons. It covers matters of pure status (marriage, divorce, kinship
and so on); matters involving assets of some sort (property, succession, contracts);
and commercial activities in the wider sense. Its essential feature is that the
participants are presumed to be juridically equals (unlike the public law structure where
relations are hierarchical) so that one cannot give orders to another, unless so
authorised under some previous contractual or family arrangement. Its essential
technique is that much of it is not automatically binding (jus cogens in lawyers'
language) but serves to cut down the cost of legal transactions by providing a set of
patterns which citizens may use if they wish. For instance the intestacy rules operate
only if a person dies without having made a will. The rules on sale, lease, loan,
partnership and so on are there as models which can be adopted in full, or modified if
the parties so desire.
In countries of the Civil Law group these three areas of status, assets, and business
may be dealt with in separate codes of Family Law, Civil Law (using the word in a
narrower sense) and Commercial Law. In the common-law world the basic system is
laid down by caselaw, although there are many modern statutes which often re-state
and systematise the work of the judges.

Despite the many differences on the surface and in particular detailed rules, the overall
structure of private law in both civil and common-law systems can be stated quite
simply in a formula derived ultimately from the Roman jurists: private law deals with
persons, property, obligations and liability.

Persons
Private law defines who counts as a person able to enter into legal relations and deals
with their legal capacity(so as to protect the very young or the mentally ill). Since the
abolition of slavery, all human beings count as persons. Furthermore, these natural
persons may set up other 'artificial' legal persons such as associations, foundations, and
- most important - business corporations.

Property
All these persons may own property and hold it for its own sake (house, clothes etc) or
as a business or investment (office blocks, factories, shares, savings accounts). Only
the socialist systems attempted to prevent this second function of property by
forbidding private persons to own 'the means of production'. The property involved may
be tangible, and is often divided for legal purposes into immovable and movable (or
'realty' and 'personalty' in the obscure jargon of the common law). It may also be
intangible, such as debts in the hands of a creditor, stocks and shares, copyrights,
patents and so on. If the owners have full legal capacity (i.e. are sane adults) they may
normally deal with their property as they please, subject of course to rules of public
policy, zoning regulations and the like. They can deal with their property during their
lifetime or by will, although many systems ensure that some of the deceased's property
goes to near relatives.

Obligations
Persons may incur obligations voluntarily by entering into a contract - for instance to
get a job, buy a house, borrow on the security of a mortgage, take out an insurance
policy. They also - whether they like it or not - incur the obligation imposed by law (the
law of tort) to compensate others for unjustified harm caused them deliberately or
carelessly. Likewise imposed by law are the duties which stem from family relationships.

Liability
The structure of private law is sealed by the following rule, now almost universal: a
person must answer with his or her property for performance of all obligations. So, if
the worst comes to the worst, most of a debtor's assets can be taken by process of
execution. Human beings can be made bankrupt, and corporations liquidated.

Comparative law, examination of comparative legal systems and of the relationships of


the law to the social sciences.

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 Romancommission 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 obstaclessuch as the parochialism of social groups, contempt for
foreigners, or barbarians, and belief in the sacredness or everlasting inviolability of inherited
legal rules.
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 humankinds 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.

Role of judges

Such contempt was not characteristic of the attitude of the


judges and lawyers whose duty it was to administer justice, mainly by applying the customary
law. Their material contained areas of uncertainty and required adaptation to social needs. In
the work of ascertaining the content of a custom, and in the task of filling the gaps of customs,
judge or lawyer had to consider which customs to allow to prevail. In so doing, he had to decide
whether one custom was more just than another and how far he should go in introducing
concepts of ideal justice (based on Roman law) that were being promoted by the universities.
Two processes were thus at work: the elimination of conflicting local customs and the acceptance
and rejection of elements of Roman law. With regard to the first process, the comparative aspects
of the work took place behind the scenes, and consequently the results of melding the different
local or municipal laws are known, but the reasoning leading to the result is not. With regard to
the second process, by contrast, certain publications place the act of comparison in full view.
This was particularly noticeable in England, where some writerssuch as Sir John Fortescue in
the 15th century and Saint-Germain in the 16thtook upon themselves the comparison
of common law and Roman law, and in 1623 Sir Francis Bacon suggested to James I that a work
be drafted comparing English and Scots law, as a preliminary step toward the unification of the
two systems.

19th-century beginnings

Despite the occasional use of the comparative technique, nevertheless, comparative law itself
was not recognized as a separate branch or as a fundamental technique of legal science until the
19th century. In particular, it played no part in legal education. It was quite unthinkable that the
pursuit of justice should be taught by reference to a host of customary rules that were
incomplete, sometimes archaic, and generally regarded as barbaric. A foundation of ethical and
political principles rather than sociological considerations, an appeal to reason rather than a study
of human behaviour or judicial precedentthese were deemed the true criteria of progress.
With the coming of the 19th century, codification of the law put an end to the dualism existing in
many countries between an ideal system, as taught in the universities, and the laws that were
applied in everyday practice. Codification of those everyday laws gave them the status of a
national law, thoroughly purged of anachronisms and arranged in a systematic manner. That
codified law became the cornerstone of legal education. This promotion of local customs,
regarded henceforth as being fully consonant with natural justice, may be considered as the
underlying cause of the appearance and rise of comparative law.
In short, the attitude toward comparative law tends to change when a country makes its national
law the object of legal study and law students begin contrasting it with foreign counterparts. In
Europe this dawning change was evident early in the 19th century. Legal periodicals were
founded in Germany in1829 and in France in 1834 to further a systematic study of foreign law.
In France, the civil and mercantile laws of modern states were translated with concordances
referring to the corresponding provisions of the French codes; and in England in 185052, Leone
Levi published a work entitledCommercial Law, Its Principles and Administration; The
Mercantile Law of Great Britain Compared with Roman Law and the Codes or Laws of 59 Other
Countries.
A chair of comparative legislation was set up in 1831 in the Collge de France; and this was
followed, in 1846, by a chair of comparative criminal law in the University of Paris. In 1869 the
Socit de Lgislation Compare was founded in France, followed in 1873 by the Institut de
Droit International and the International Law Association. In England, the Society of
Comparative Legislation was founded in 1895, and the Quain Professorship of Comparative Law
was created at London University in 1894. Similarly, chairs in comparative law were founded
and projects in foreign law undertaken all over the continent of Europe, but with particular
vigour in France.

International efforts
The 19th century drew to a close with an important eventthe meeting of the First International
Congress of Comparative Law in Paris in 1900. Experts from every part of Europe delivered
papers and discussed the nature, aims, and general interest of comparative law. Particular
emphasis was laid on its role in the preparation of a common law for the civilized world, the

contents of which would be laid down by international legislation. The stress, however, was on
comparative legislation and codification because (with the exception of one English jurist) the
congress had attracted only jurists from continental European countries, all of which had coded
law, in contrast to English customary, or common, law. Consequently, the idea of an enacted
world law was the natural outcome of its proceedings.
The upheavals resulting from World War I (191418) prompted a change in direction. From then
on, European interest began to extend beyond the continental systems themselves, first, to those
of the common-law countries (chiefly England and the United States), then still further afield to
the socialist systems, and finally, after 1945, to the laws of the newly independent states of Asia
and Africa. The new territory for legal study that was thus opened up resulted in references to
comparative law, rather than to comparative legislation.

Methodological considerations in contemporary


comparative law
The world contains a vast number of national legal systems. The United Nations brings together
representatives of more than 190 states, but these states are far outnumbered by legal networks,
since not all statesnotably federal oneshave accomplished unification within their own
frontiers. It is thus an enormous task to try to compare the laws of all the different jurisdictions.
This problem, however, should not be overly magnified. Differences between the diverse
systems are not always of the same order; some are sharp; others are so closely similar that a
specialist in one branch of a legal family often may easily extend his studies to another branch
of that family. For this reason, one can distinguish two types of research in comparative law. The
exponent of microcomparison analyzes the laws belonging to the same legal family. By
observing their differences, he will decide whether they are justified and whether an innovation
made in one country would have value if introduced elsewhere. The researcher pledged to
macrocomparison, on the other hand, investigates those systems differing most widely from
each other in order to gain insight into institutions and thought processes that are foreign to him.
For the pure jurist, concerned mainly with legal technicalities, microcomparison holds the
greater attraction; whereas macrocomparison is the realm of the political scientist or legal
philosopher, who sees law as a social science and is interested in its role in government and the
organization of the community.

Microcomparison
Microcomparison demands no particular preparation. The specialist in one national system is
usually qualified to study those of various other countries of the same general family. His chief
need is access to bibliographical material. In the United States, each state has its own statutes
and, to some purposes, its own common law. Thus, the American lawyer must be a

microcomparatist as he takes the 50 state systems and the federal law into daily account in his
practice of the law. The same is true, to a large extent, of the Australian, or Indian, or Kenyan
lawyer, who must take into account not only his own national system but also the laws of
England and of other common-law jurisdictions in the Commonwealth. Whatever can be said of
the common-law systems holds largely true for the Roman-law and socialist families. French
comparative law students encounter little difficulty in contrasting the laws of certain countries,
so long as they confine their study to French, German, Italian, and Dutch law, which are related
in tradition and structure and serve a similar type of society.

Macrocomparison
The situation differs greatly in consideration of macrocomparison. Here no comparison is
possible without previously identifying and thoroughly mastering the fundamentals of the law
systems as they differ from place to place. The jurist must, as it were, forget his training and
begin to reason according to new criteria. If he is French, English, or American, he must
recognize that in some folk societies of East Asia, the upright citizen never crosses the threshold
of a courtroom and acknowledges no subjective rights; instead, the citizens behaviour is
governed by rites handed down from his ancestors, ensuring him the approval of the community.
Likewise, if the Western jurist is to understand Islamic law or Hindu law, he must realize that the
law is contained in rules of conduct laid down by a religion for its followers, and for its followers
only. These rules, creating obligations and not rights, rank above all worldly matters and, in
particular, are not to be confused with the regulations that a national government may, at a given
time, enact and ratify. Further, in comparing his system of law with that of a communist country,
the Westerner must remember that on no account does the citizen of a Marxist-Leninist
state regard the rule of law as an ideal for society. Far from it, for his dream is to see lawwhich
to him is synonymous with injustice and coercionwither away in an affluent society founded
on human solidarity and fellowship. A considerable shifting of legal gears is necessary before a
French or German jurist can grasp the vital importance that the English or American lawyer
traditionally attaches to the concept of due process and the rules of evidence; in continental eyes,
procedural rules take second place to substantive law.
The specialist of macrocomparison also picks out the structural differences existing between
certainsystems. Accordingly, the Anglo-American lawyer must be aware of the importance of the
distinction between public and private lawbetween law involving the state and law involving
only individuals. The jurist in a Roman-law country must, conversely, appreciate the significance
of the concepts of common law (unwritten customary law of various kinds) and equity (the use
of injunctions and other equitable remedies), neither of which have counterparts in his own
system. The lawyer from a centralized country must familiarize himself with the distinction
between federal law and the laws of secondary jurisdictions (states, provinces, cantons, and so
forth)a distinction that is of fundamental importance in many countries. If he is from a country
like England or France that acknowledges the sovereignty of the national parliament, he must

give due weight to the prominence of constitutional law in countries that permit courts to review
the constitutional validity of legislative actsespecially in countries such as the United States
and Germany. The jurist in a bourgeois country must appreciate the policy of collective
ownership of means of production in socialist states.

Classification of families of law


The terms microcomparison and macrocomparison, reflecting the language of economics, are in
keeping with the idea that legal systems can be grouped into families, such as common-law,
Roman, and socialist. But it must be acknowledged that the number of identifiable families and
the appropriate classification of a given system are questions always open to argument. The legal
system of a given country, for instance, may exhibit some features that relate it to a particular
family and others that may escape that classification. Such blurring of distinctions is particularly
true of law in countries of Africa and the Middle East, where certain sectors of the law have been
transformed by Western ideas (as in criminal and mercantile law and procedure) leaving other
sectors (such as personal status, family law, and land law) faithful to traditional principles of the
region. The phenomenon is not peculiar to those countries, however.
Wide differences also may be detected between legal systems that are commonly regarded as
belonging to the same family. American law, for instance, without hesitation is ranked as a
member of the common-law family; yet countless differences set it apart from English law, in
large part because the United States has a federal and England a unitary system of government.

Purposes of comparative law


Historical and cultural comparisons
First of all, there has been a tendency to view comparative law from the standpoint of its value to
the historical study of legal decision makinga consideration that was responsible for
establishing the first chairs of comparative law in 19th-century Europe. Ideas regarding the place
of law in society and the nature of the law itselfwhether divine or secular, whether dealing
with substantive or procedural rulesobviously become appreciably clearer when comparative
law is joined to historical research. Indeed, to some extent historical background may aid in
forecasting the future of certain national systems
A closely related consideration prompts many Western jurists, political scientists, and
sociologists to acquaint themselves with non-Western methods of reasoning. Comparative studies
reveal that the citizen of some countries of Asia and Africa looks upon the concept of a just
social order with thoughts and feelings far removed from those of Westerners. The notions of a
rule of law and of rights of the individualfundamental to Western civilizationare not wholly

recognized by those societies that, faithful to the principle of conciliation and concerned
primarily with harmony within the group, do not favour excessive Western-style individualism or
the modern Western ideal of legal supremacy. Thus comparative law may enable statesmen,
diplomats, and jurists to understand foreign points of view, and it may frequently help to create
better international understanding.

Commercial uses
Comparative law may be used for essentially practical ends. The business executive, for instance,
needs to know what benefits he may expect, what risks he may run, and generally how he should
act if he intends to invest capital or make contracts abroad. It was with this purpose in mind that
the first French institute of comparative law was set up in Lyon in 1920; its mission was to
instruct French legal advisers on foreign trade. It was this practical aspect that also encouraged
the growth of comparative law in the United States, where the essential aim of the law school has
been usually to turn out practitioners; and one need hardly mention the strong link in Germany
between big industry and the various institutes of comparative law. Sometimes it is said that
studies with such a focus should not be considered a part of comparative law, but practical
considerations certainly have helped to finance and promote the development of comparative
legal studies in general.

Aid to national law


The improvement of national legislation was the prime consideration during the 19th century in
countries that were codifying or recodifying their legal systems. Numerous later additions to
the Code Napolon, drawn up in 1804, for instance, were of foreign origin. Many other
countries, of course, followed Frances lead and introduced into their own systems elements of
the French Napoleonic codes and institutions of French public law. It is well worth noticing that
a book on French administrative laws was published in German by Otto Mayer before Mayer felt
himself able to write a textbook on German administrative law.
The foreign inspiration of a number of legal rules or institutions is a well-known phenomenon,
sometimes so all-embracing that one speaks of receptionreception, for instance, of the
English common law in the United States, Canada, Australia, India, and Nigeria; reception of
French law in French-speaking Africa, Madagascar, Egypt, and Southeast Asia; reception of
Swiss law in Turkey; and reception of both German and French law in Japan, along with even
some reception of American common law. The study of comparative law has found a special
place in countries where such a reception has occurred.

Use in international law

In modern times the spirit of nationalism has often tended to frustrate the development of an
international law that would overcome individual national differences. One task facing statesmen
and jurists is to inject new life into this effort, adapting it to the exigencies of the modern world.
Those engaging in international trade, for instance, do not know with certainty which national
law will regulate their agreements, since the answer depends to a large extent on a generally
undecided factornamely, which national court will be called upon to decide the questions of
competence. Thus, the sole lasting remedy would seem to be the development of an international
law capable of governing all legal questions outside the jurisdiction of a single state. Such a
project can succeed only through the medium of comparative law.