What is comparative law about ?

Comparative law means different things to different people.

Since the formal day of birth of modern comparative law, at the 1900 Paris International Congress
of Comparative Law, there has been a longstanding debate about whether comparative law is a
methodology for the study of law or an autonomous legal discipline.
Comparative law consists of the comparison of the world's legal systems in pursuit of a variety of
academic and practical objectives.

(1) Comparing the World’s Legal Systems

This is the most common form of comparative studies.
It is often coupled with recourse to the so-called ‘functionalist’ methodology. ‘Functionalism’ is based
upon the assumption that most legal systems face similar problems, but solve them by different
means. The ‘functionalist’ comparative lawyer therefore explores similarities and differences in the
ways in which legal systems approach similar problems.
‘Functionalism’ easily turns out to be prescriptive. This is why it is recurrent in contexts of legal
unification / harmonization.
Example: Recovery in tort for non-patrimonial losses under French, Austrian,
German and Italian law

Another example of functionalism comes from the World Bank’s ‘Doing Business Reports’.
Since 2003, the World Bank publishes every year a ‘Doing Business Report’, with the aim of assessing
the business-friendliness of world’s legal systems.

(2) Studying Legal Transplants

Following the migration and adaptation of legal ideas requires exploring the historical origins and
the developments of institutions, rules and forms of law.
Some examples:
- the spread of the English common law abroad;
- the journeys of the French Civil Code around the world;
- the mixing up of civil law and common law in some systems;
- the re-interpretation of the pre- and colonial legacy in post-colonial jurisdictions.
(3) Exploring the Relationships between Law and Society
This implies studying the perceptions, assumptions and visions about the law of a given
society/community, which often diverge from those characterizing other societies/communities.
Are there other possible ways of doing comparative law ?
Or it might be about scrutinizing and comparing transnational law regimes.
Comparative law methodologies : [Frankenberg 427-428]
 encyclopedic comparison – the International Encyclopedia of Comparative Law;
 constructive comparison – Montesquieu’s De l’esprit des lois;
 comparative historical reconstruction – Maine’s Ancient Law;
 juxtaposition-plus – Schlesinger’s Comparative Law;
 comparative functionalism – Zweigert & Kötz’s Introduction to Comparative Law.
What is the object of these methodologies? Legal rules
What is a legal rule ?
In legal systems there rarely is one single legal rule on a given issue.
It is misleading to speak of the legal rule in force in a given country as though there were only one
such rule. It is misleading to believe that the first step toward comparison is to identify "the rule" of
the legal systems to be compared. It is a misleading simplification which overlooks the simple fact
that in any jurisdiction we find at work constitutions, legislatures, courts, and, indeed, scholars who
formulate legal doctrines – not to mention the other legal factors that can and actually do shape the
law. By contrast, domestic jurists usually assume this unity. Their main goal is to discover "the legal
rule" of their system. In a comparative perspective there is no single rule to be looked for, and that,
on the contrary, one should always pay attention to the variety of factors shaping the way the law is
and works.

More often there are many rules, resulting from the interaction of different components, which may
converge or diverge with one another.
These components might be:
 statutory norms;
 judicial holdings;
 judicial obiter dicta;
 scholarly explanations;
 administrative practices;
 market practices, etc.
 Legal formants
An illustration of divergence of legal formants: recovery in tort for non-patrimonial losses in France,
Austria, Germany and Italy

An illustration of the central role of interpretation: Islamic law

The revealed sources do not deal explicitly with all problems, and their meaning is often uncertain.

The gaps must be filled, and the uncertainty dispelled. This is done by means of interpretation.
Interpretation is in the hands of the scholar (faqih), who is recognized as the true law-giver under
Islamic law.

An illustration of the different role played by interpretive legal formants: scholarship in England and
in the US
England: Law was traditionally taught in London as a practical discipline within the tightly closed
networks of barristers’ professional associations. Professors write accounts of what judges do and,
in their teaching, the fundamental aim is to familiarize the students with judge-made law. This
teaching technique leaves little or no room to a critical learning of what the law is.

US: Law was traditionally taught around the nation in law schools by scholars who taught a virtual,
non-existent ‘national’ law. This leaves room to a strong scholarly-oriented assessment, criticism and
reconstruction, of the various solutions. The importance of, and the role recognized to scholarly
activity is perhaps the feature which most distinguishes American from English law, and which
explains why, in the past decades, American rules and methodology experienced wider circulation
than their English counterparts.
Frankenberg’s critiques to mainstream comparative law methodologies:
 implicit bias: “comparatists rarely find it worth mentioning by which criteria they select their
material. […] the relevant […] major legal traditions are represented as the legitimate objects
of study” [430-431].
 legocentrism: comparatists do not focus on the “interpretative patterns and visions of life
which shape people’s ways of organizing social experience” [438].
 lack of self-reflection: “comparatists rarely devote much attention to such questions as: Why
should anyone undertake the […] task of studying the law comparatively? […] What is
achieved by comparing the law of different societies? What is the law and how can we know
it when we see it?” [416-417].
What is Frankenberg’s cure ? Comparatists should [443]:
 be self-reflective and self-critical;
 challenge the alleged ‘neutrality’ of comparative law;
 recognise their own biases and unravel the cultural ties that bind them to a specific
cultural framework.

The World Bank’s Comparative Law

The World Bank’s Doing Business Reports aim atassessing the business-friendliness of world’s legal
systems.
The underlying assumption is the so-called ‘legal origins’ thesis: a country’s legal family is a
significant determinant of the effectiveness of its legal system.
Countries belonging to the English common law family have the most investor-friendly laws, while
French and German civil law countries have the least investor-friendly laws. The Scandinavian family
fall close to the common law one.
The DB Reports have been very successful: in 19 years they have prompted more than 3000
reforms worldwide, highlighting patterns that can be easily replicated, promoting access to the
market, and offering a tool for measuring performance.
Yet the DB Reports also are:
 American biased;
 legocentric;
 premised on debatable assumptions;
 based on discretionary proxies;
 lacking any form of control or accountability.
 What Is Comparative Law For ?

The functions of comparative law are very much debated.

For some, comparative legal research is justified only when it serves a practical purpose. For others,
comparative law is important no matter what its practical impact is.
Among the most common practical purposes to which comparative law might lend itself, one may
list comparative law as:
(1) an aid to lawyers and private parties;
(2) an aid to domestic and supra-national legislators;
(3) a contribution to the unification/harmonization of the law;
(4) as a tool of interpretation;
(5) as a matter of legal education.

(1) Comparative Law as an Aid to Private Parties

Comparative law might be useful to lawyers and private parties, to make them understand the
dangers and benefits associated with particular jurisdictions and particular laws.
Example: Under English and US law, consideration is a requirement for the validity of a contract.
Consideration might be defined as the exchange of benefits and detriments by the parties. In
common law, agreements to modify a contract by changing the obligations of one party only (e.g., by
agreeing a discount or an extension of the delivery dates), are invalid because of their lack of
consideration. In civil law legal systems, these contracts are valid.

(2) Comparative Law as an Aid to Legislators

Comparative law might be useful to legislators, to confront themselves with, and choose among, the
available models.
Example: OHADA, the Organisation for the Harmonization of the African Business Laws. OHADA
was established in 1993 by a Treaty between African countries, mainly in the French-speaking area,
with the aim of implementing a modern harmonized legal framework in the area of business laws in
order to promote investment and economic growth.

The diversity of laws in Africa is not only that existing between African countries; it also appears
within national legal systems, due to the plurality of different layers that exists within the same
tradition.
- customary laws
- colonization has brought into the African countries different Western legal systems imposed upon
customary laws and still coexisting with them
- after independence, the choices made by the new states
OHADA prepares harmonized texts (Uniform Acts), which are directly applicable in OHADA
member states.
These texts are based on a comparative legal research, in which OHADA takes into account not only
the laws of the African legal systems involved, but also international conventions, international
principles regarding business law (Unidroit Principles on International Commercial Contract), and
national legal rules (in particular French ones).
Criticism: drafters of OHADA Uniform Acts rarely took into account African indigenous laws

(3) Comparative Law as a Contribution to the Unification / Harmonization of the Law

Comparative law might be useful for drafting of uniform texts, drawing common solutions, and
taking inspiration from other experiences.
Treaty on the Functioning of the European Union, Art. 340(2):
“In the case of non-contractual liability, the Union shall, in accordance with the general principles
common to the laws of the Member States, make good any damage caused by its institutions
or by its servants in the performance of their duties”.
Proportionality principle (Frankenberg)
• The proportionality principle emerged in Germany in the 1950s.
• It was adopted by the European Court of Justice in the 1970s, by the European Court of
Human Rights in the 1980s and by a GATT/WTO panel in 1989.
• At the national level, it was imported by the Canadian Supreme Court in the mid-1980s,
promoted by the Israelian Supreme Court’s judge Aharon Barak in the 1990s, and adopted
by the South African Constitutional Court since 1995.

(4) Comparative Law as a Tool of Interpretation

Examples:
• Hoge Raad 9 Oct. 1992 [Koopmans 551-552] inspired by Sindell v. Abbot Labs (Ca. 1980)
• White v. Jones [1995] (solicitors’ liability) inspired by German case law and doctrine
(contract with protective effect towards third parties)

«There are important reasons why courts tend to rely more and more on comparative methods»
[Koopmans 549] :
1. «the birth and growth of completely new social problems», that are «common problems»;
2. «the growing incapacity of the political institutions to find the necessary solutions to these
problems»;
3. the traditional judicial tools, such as codes statutes, precedents, etc., will not be very hepful
for the precise reason that the problems are so new and so different».

White v. Jones [1995] – recovery of pure economic loss caused by professional negligence
Problem: Privity of contract (a contract produces rights and duties only between the parties)
References to «other common law countries» and to «civil law countries, notably Germany» (and
France)
Roper v. Simmons (2005), Majority Opinion (Kennedy J) – juvenile death penalty: “Article
37 of the UN Convention on the Rights of the Child, which every country in the world has ratified,
save for the United States and Somalia, contains an express prohibition on capital punishment for
crimes committed by juveniles under 18 […] [I]t is fair to say that the United States now stands alone
in a world that has turned its face against the juvenile death penalty”.
Roper v. Simmons (2005), Dissenting Opinion (Scalia J) – juvenile death penalty: “The
basic premise of the Court’s argument – that US law should conform to the laws of the rest of the
world – ought to be rejected out of hand. […] The Court should either profess its willingness to
reconsider all these matters in light of the views of foreigners, or else it should cease putting forth
foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees
with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry”.

(5) Comparative Law as a Matter of Legal Education

For some, comparative law is important no matter what its practical uses are. For those, comparative
law is an essential tool for legal education.
Through comparative law, lawyers and students – that is, the future generation of lawyers – can
learn to respect others’ legal cultures and understand their own law better.
Further, comparative law makes one aware that the currently operative rule in any place is only one
of several possible solutions available. In this light, comparative law provides an effective antidote
to ethnocentrism and to the uncritical faith in one’s own legal solutions.
For some, comparative law is important no matter what its practical uses are. For those, comparative
law is an essential tool for legal education. Through comparative law, lawyers and students – that is,
the future generation of lawyers – can learn to respect others’ legal cultures and understand their
own law better.
Further, comparative law makes one aware that the currently operative rule in any place is only one
of several possible solutions available. In this light, comparative law provides an effective antidote
to ethnocentrism and to the uncritical faith in one’s own legal solutions.
Example: Common Core of European Private Law Project