‘Table of Statutes a Car. ye. 3 (Staute of Frauds, 167), 8.4 “0 sa and a5 Viet, c. 65 (Britsh Law Ascertiament Act, 1859) 50 2g and 25 Vie, c. x2 (Foreign Law Ascertainment Act, 861) 50 45 and 46 Viet, 6 (Bills of Exchange Act, x882) 149, 165, 45$ and $6 Vict, c. 6 (Colonial Probates Act, x892) 165 6 and 57 Viet, € 71 (Sale of Goods Act, 1893) 165 ‘37 and 58 Vict, c. 60 (Merchant Shipping Act, x894) 5.158 106 63 and 64 Viet, c. 12 (Commonwealth of Australia Consiucion Act, 168 sand 2 Geo. Ve 46 (Copyright Act 1911 16s 1 and 2 Geo. Vs 57 (Maritime Conventions Ac, “7 18 28 46 rand 18 Geo. V, ¢. 4 (Colonial Probates (Protected States and Mandated “Teritories) Act, 1927) 165 23 Geo. V,c.4 (Bridene (Foreign, Dominion and Colonial Doctmens) ‘Acs 1933) 165 123 Geo. V, ¢. 13 (Foreign Judgments (Reciprocal Enforcement) Act, 1533) : 162,165 and 2 Geo, VI, ¢. 45 (The Inheritance (Family Provision) Act, 1938) 32, 166 Library wt Chapter I THE PROVINCE OF COMPARATIVE LAW A pistineursmsp comparative lawyer’ has said that the phrase “Com- parative Law’ is a strange one. How strange it is becomes manifest when fttempts are made to define it ot to 2scertain its relation to other forms of Jearning- Much of the at shere of doubt and suspicion which en- ‘yelops comparative legal study and has proved, in the past, to be so hostile to its development, would disappear if it were generally recognised that the phrase ‘Comparative Law’ denotes 2 method of study and research and not a distinct branch or department of the law. If by ‘law’ we mean 1 body of rules, it is obvious that there can be no thing as ‘com- pafative’ law. The process of comparing rules of law taken from different systems does not result in the formulation of any independent rules for the regulation of human relationships or transactions. Not only are there, no ‘comparative’ rules of law but there arc no transactions or relation- ships which can be described as comparative. When we speak, for instance, of the comparative law of marriage this does not mean that comparative Iawyers have devised a new set of rules to govern the relations between ‘husband and wife; it merely indicates that the marriage laws of several countries have been subjected to a process of comparison /in order to ascertain how far, and in what respects, they may differ one from another. There is no ‘comparative’ branch or dep: at of the law in the sense in which a lawyer speaks of ‘Family Law’ or ‘Maritime Law’ departments into which law is conventionally divided for indicating the particular type of subject-matter with which each depart- ment deals. ‘The emptiness of the phrase has been realised by German-speaking lawyers who use the term Rechisvergleiching, which connotes a process of comparison and is free from any implication of the existence of a body of rules forming a separate branch or department of the law. But in England, and in most other count firmly established that it must be accepted, eve tends, as we shall see hereafter, to obscure the real nature of the functions which the comparative method of study is called om to discharge; and the purposes for which it exists. 1 Le, ‘Comparve Law and Compute Lawyer spr. Sats CPR cy CEP Get Shwe ose Sp 9.2 Comparative Law The x te use of the word ‘law’ connection is reflected in the v: tempts which have been jolve the problem of definition by se-chrisening the subject. It cimes referred 10 38 “Comparative Jurispradence’,? and sometimes as ‘Comparative Legisla- tion’. Both these terms are open to the charge of obscurity, but they Ceeape the criticism arising from the confusion created by the use of the Sword ‘law in this context. The use of the phrase ‘Comparative Juris- prudence’ is an expression of the belief chat che main purpose of the Comparative method of seudy i to aid the historian or the analytical Soret in tracing the origin and development of concepts common to all jyntems of law. The term ‘Comparative Legislation’, which, as a leamed irter has observed, isin che nature ofa ‘subterfuge',* seems to have been devised in order to emphasise the practical as opposed to the academic aspects of comparative legal research, and sreses two fearures ofthe results ‘which may be obtained by the use of the comparative method. The first of these is the collection and distribution of information as to foreign law; the second is the utilisation of che experience gained in other systems of law for the purpose of law reform. The purpose underlying the reference 10 ‘legislation’ rather than to ‘law’ or ‘jurisprudence’ seems to have been to conciliate the large and influential body of legal opinion which, in all ‘countries, shows its dislike of a purely theoretical approach to the law. Te has a ‘useful and practical sound’, and it was thought that it might serve to disarm hostility Although we may discard both these terms, in view of the fact that they have not succeeded in displacing the term “Comparative Law’, they cannot be ignored. The Corpus Professor at (Oxford holds a Chair of Historical and Comparative Jurisprudence, and the French and English Societies which were founded for the promotion fof comparative studies are both styled ‘Societies of Comparative Legisla- tion’. These variations in nomenclature are, however, of no great im- portance save in so far as they illustrate the tendency to define comparative {aw in the light of the functions which it may be called on to discharge. ‘Legal definitions are notoriously unsatisfactory and apt to lead to con roversies which are offen barren of resolt. This, in particular, isthe case ‘when any attempt is made to define ‘Comparative Law’ as law, since the subject-matter, being non-existent, is onc which defies definition, The consequence is that the definitions which have been framed do not deal x Eg. Maine, Village Pollock, “The History of Com- (1903), p. 74. “of Comparative Law’, Journal Conia ‘term ‘comparative legislation’ but in a car The Province of Comparative Law 3 with the nature of comparative law but only with its objects. The author of the definition has, in each case, focused his attention on the particular fanction which, from his standpoint, method of comparison. The Vocab comparative law as a branch of legal science ‘about systematically the establishment of closer relations between the legal institutions of the different countries.‘ In this definition we hear the voice of the unificationist who comparative research as of litele im- portance except in so far: of international unifor geschichie and Verglechende Rechtswissenschaft as interchang terms,* ‘whilst Pollock observed that ‘it makes no great difference whether we speak of historical jurisprudence or of comparative jurisprudence or,.as the Germans seem inclined to say, of the general history of law’,? Holland pots the matter in this way: ‘Comparative Law collects and tabulates the legal institutions of various countries, and from the results thus prepared, the abstract science of jurisprudence is enabled to set forth an orderly view of the ideas and methods which have been variously realised in actual systems."4 Maine's attitude is different; he states that ‘the chief function of Comparative Jurisprudence isto facilitate legislation and the practical ae ‘restricted views of the nature of comy ive law began to widen a cera ew of tenes of cee er bo en writing in 190r, distinguished between the purely scientific aspect of the subject and its more practical side. The first aspect he describes as ‘the comparative science of jurisprudence’, which, like Pollock, he identifies ‘with the ‘historical study of law in general’. The second aspect has a ‘palpably practical aim’. Ie sets out by ascertaining and examining the rus actually in force in modern civilised countries, and proceeds'to show 2S ee ere ieee pt Ck Levy Ullmann: “Sante pel dence SEER UF I orchemen ytaqe de oy Pond 3 Encyhlopilic der Recheswisenshalt (6th 04), p tialie Hitor of Compare "juspridcace’, Jounal of CL. (N. 4 Jurisprudence (oth ed.), at p. 8. This view is also held by Allen, cataract ty of ca oi fe aly seed Sep has df anaes (Law Marg ey PP 3 3 Wigs Commies (8 6), . 3; cmt The Province of Comparative Law 5 ghar m with problems substantially the same in 4 form of legal cechnique,* whilst the other insists on its scientific nature by what means these rules deal with problems sul ptoee and classifies it as a distinct branch of legal learning.* "He ‘The question appears to resolve itself i which centres round the interpretat Comparative Law 1 Heft r Gs) pone at "939 Fonction da Droit Civil Compa, se pos 6, no 3 & Op. sep. ot4 The erm Logulation’ fe vou of es writen or wren which ate als te ae Elem aparece a tas ee i i LR val i6 Comparative Law Sh eampaiton cts bth tne an pce The snd domain of cut The Province of Comparative Law 7 comparative law, ie. comparative legislation, has, according to Lambert, the necessity for the employment of the comparative method. Ac the 4 practical aim and is not 2 science but a form of legal technique. Its pur- present day the tendency is to stress the value of the method by indicating pote is to create an ‘Intemational Common Law’ consisting of a the different purposes which may be served by its eiployment, and chis Trhich are applicable to the needs of such communities as have attain has led to various attempts to classify comparative law in accordance with the same standard of civilistion.* the objects which can be attained y its utilisation. Allusion has already So far as the views held by these two famous jurists were based on the been made to Wigmore’s division of comparative law into Nomo- ‘existence of certain principles common to all systems of law, they rest on scopy, Nomothetics and Nomogetetics’ Lambert elassfies the subject into f fomewhae flimsy foundation and appear to have boca abandoned to = Comparative Legal History, Comparative Legislation and Descriptive ‘ery lange extent atthe preseat day. Nevertheles, the ‘universal’ view Comparative Law.* Kantorowice speaks of geographical, material and UE uw fas exercised a marked influence on the development of modem methodological comparison.3 Kaden draws a distinction between formal comparative law. It formed the starting-point for the wave of unifica— comparison (formelle Rechtsvergleichuig) and dogmatic comparison (dogma- tionary enthusiasm which swept over Europe in the years following the tische Rechtsvergleichung).. He uses the term ‘formal’ to denote the compara war of 1914-18, and it still peovides a motive for much of the comparative tive investigation of the sources of law, e.g. the weight given in different seudy and research whichis carried ont the present time. Tthas also foune systems to statute law, case law and custom, and the application of difring expression in Article 38 of the Statute of the Permanent Court of Inter methods of legal technique in such respects as the interpretation of statutes. national Justice, which directs the court to apply, among other rules, “the (eet compasian i concerned with the various solutions which have general principles of lw recognised by eivilsed mations’ Tt has beew tern found for the same lal problem in diferent jens of la Suggested, moreover, that a search for ‘common principles’ conde _ lt may, however, be doubted whether much is gained by the clasifica- srretalyrcal ines may result in a solution of the problem which s created tions which have been mentioned. The comparative method is suficiently {a the domain of private international law by the varying interpretation elastic to embrace all activities which, in some form or other, may be given in different jurisdictions tothe same legal concept, a problem which concermed with the study of foreign law. As Wigmore has pointed out, Spe te ae meen ia facia ee ton gh SOE ¢ sagged fo by Sis Arla tic comparison’: “Teaching Comparative Law,