Abstract
During the last few decades there has been an increasing tendency among legal professionals and jurists to look beyond their own borders. While the growing interest in foreign and transnational legal systems may well be ascribed to the dramatic growth of international transactions, this empirical parameter accounts for only part of the explanation. The other part, at least equally important, pertains to the expectation of gaining a deeper understanding of law as a broader socio-cultural phenomenon and a fresh insight into the current state and future direction one’s own legal system. Most legal professionals are situated within their own native legal culture and are conversant with the law of the land that they have grown up with and become accustomed to. They are familiar with the substantive and procedural rules of their system and may tend to assume that the solutions it provides to legal problems are the best. Sometimes they may be right. But they are likely just as often to be wrong. Being confined in one’s own legal culture can be insulating and distorting. The comparative study of foreign laws opens up avenues by which to know and assess diverse socio-legal cultures and traditions, different normative orders that shape people, institutions and society in particular historical contexts. It enables lawyers and jurists to integrate their knowledge of law into a cultural panorama extending well beyond their own country and provides them with a much broader knowledge of the possible range of solutions to legal problems than familiarity with a single legal order would allow. In this way, they can develop the standards and sharpen the analytical skills required to address the challenges they face in a rapidly changing world.
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Notes
- 1.
Grossfeld and Eberle (2003), pp. 291, 292.
- 2.
As Aharon Barak, former president of the Supreme Court of Israel, remarked: “When a national jurist – a judge, a professor of law, or an attorney – is confronted with the need to understand a legal phenomenon – for example, “what is law?”; “what is a right?”; “what is a legal person?”; “what is the relationship between morality and law?” – that jurist is certainly permitted, and it is even desirable, to examine the understanding of legal phenomena and legal concepts beyond his national framework. These are all universal aspects which cross-national boundaries, and in order to understand them, it is worthwhile to turn to all thought which has been developed on the subject, be its geographical origin as it may. So did our forefathers through the years. And so did Holmes, Cardozo (judges), Roscoe Pound, Hohfeld, Fuller, Llewellyn (professors), and many others. They did not shut themselves inside of their national borders. The entire world was before them.” “Comparative Law, Originalism and the Role of a Judge in a Democracy: A Reply to Justice Scalia”, speech for the Fulbright Convention, 29 January 2006. Consider also Siems (2018), p. 28; Schadbach (1998), p. 331.
- 3.
- 4.
- 5.
Examples of such issues include: the comparative law method; the concepts of legal tradition, legal family and legal culture; legal pluralism and harmonization of laws; comparisons between civil and common law systems; legal transplants and hybrid legal systems.
- 6.
V. Grosswald Curran notes that “In terms of teaching law, the issue arises as to whether comparative law should be viewed as a methodological tool to be incorporated across the spectrum of law school courses, or whether it should continue as a separate, substantive law course.” She concludes that “[comparative law] should do both, that comparatists should promote the methodological aspects of their analysis as a recommended approach for discussions of domestic law throughout the law school curriculum, and similarly that they should focus on their methodology when teaching courses that involve officially distinct legal cultures. … The study of foreign legal systems should be preserved as a comparative law offering because, among others, such an undertaking highlights the comparative process, and facilitates the acquisition of comparative methodological skills which will enhance the students’ analytical abilities.” “Dealing in Difference: Comparative Law’s Potential for Broadening Legal Perspectives”, (1998) 46 American Journal of Comparative Law 657, 661.
- 7.
Law professors are encouraged, as much as practicable, to co-teach with colleagues from other legal systems. Co-teaching enhances the learning of students and faculty alike, and is a valuable transnational exercise in itself.
- 8.
The ability to speak, write and conduct research in multiple languages is essential to an effective transnational law study. Therefore, many universities today place a high premium on students who enter law school with extensive study or experience in a foreign language. In addition, universities are committed to make available existing or newly developed courses intended to maintain and improve the students’ foreign language proficiency.
- 9.
K. Zweigert and H. Kötz argue that the study of only one legal system cannot not reach the level of a true academic inquiry: “It may indeed be that the mere interpretation of positive rules of law in the way traditionally practised by lawyers does not deserve to be called a science at all, whether intellectual or social. Perhaps legal studies only become truly scientific when they rise above the actual rules of any national system, as happens in legal philosophy, legal history, the sociology of law, and comparative law.” An Introduction to Comparative Law, 3rd ed., (Oxford 1998), 4. On the value of comparative law as a means of broadening legal knowledge see also: Yntema (1956), pp. 899, 901; Paton (1972), p. 41.
- 10.
- 11.
As K. Zweigert and H. Kötz remark,” it is the general educational value of comparative law that is most important: it shows that the rule currently operative is only one of several possible solutions; it provides an effective antidote to uncritical faith in legal doctrine; it teaches us that what is often presented as pure natural law proves to be nothing of the sort as soon as one crosses a frontier, and it keeps reminding us that while doctrine and categories are essential in any system, they can sometimes become irrelevant to the functioning and efficacy of the law in action and degenerate into futile professional games.” An Introduction to Comparative Law, 3rd ed., (Oxford 1998), 21–22. Consider also Siems (2018), pp. 2–3. For a closer look at the role of comparative law in legal education see Demleitner (2019), p. 320; Reimann (2012), pp. 14–15. And see Péteri (2002), p. 243; Gordley (2001), p. 1003.
- 12.
Dannemann (2019), pp. 408–409.
- 13.
- 14.
Similarly, the Code of Hammurabi, a Babylonian law code dating back to c. 1700 BC, is presumably based on laws then prevailing in the Near East.
- 15.
The discipline of legislative comparative law (legislation comparée), as developed by the Société de Législation Comparé (established in 1869), promoted the comparative study of foreign law codes in France and several other countries.
- 16.
In 19th century Germany a number of legal unification projects in the fields of private law, criminal law and the law of procedure drew on extensive comparative research into the laws of other countries. See on this Drobnig and Dopffel (1982), p. 253 ff.
- 17.
On the concept of transition see, e.g., Teitel (2002).
- 18.
This tendency is evident, for example, in the Civil Code of Holland, which came into effect in 1992. In carrying out their work, the Dutch drafters relied not only on a variety of Continental European models, but also on models derived from common law countries, as well as from international treaties and conventions.
- 19.
Consider, e.g., the English Law Commission’s report on ‘Privity of Contracts: Contracts for the Benefit of Third Parties’. Besides surveying the laws of other common law countries, the Commission also recognized that a factor in support of legal reform in this field was that “the legal systems of most of the member states of the European Union recognize and enforce the rights of third party beneficiaries under contracts.” (See Law Com. No 242, 1996, 41.) The report led to the enactment of the Contracts (Rights of Third Parties) Act 1999.
- 20.
For more examples see Zaphiriou (1982), p. 71 ff.
- 21.
- 22.
- 23.
According to Lord Steyn, former Lord of Appeal in Ordinary in the U.K., a function of comparative law “is to throw light on the competing advantages and disadvantages of feasible solutions thereby showing what in the generality of cases is the most sensible and just solution in a difficult case. It enables courts to re-examine the merits and demerits of legal institutions in a rigorous manner.” “The Challenge of Comparative Law”, (2006) (8) 1 European Journal of Law Reform 3, 5. In the words of Zweigert and Kötz, “Comparative law is an ‘école de vérité’ which extends and enriches the ‘supply of solutions’ and offers the scholar of critical capacity the opportunity of finding the ‘better solution’ for his time and place.” An Introduction to Comparative Law, 2nd ed., (Oxford 1987), 15.
- 24.
In his dissenting opinion in the case of Roper v. Simmons, which concerned the constitutionality of the juvenile death penalty, Justice Antonin Scalia of the Supreme Court of the United States presented the following argument with regard to the use of foreign legal materials in judicial decision-making: “The basic premise of the Court’s argument - that American law should conform to the laws of the rest of the world - ought to be rejected out of hand. In fact, the Court itself does not believe it. (…) To begin with, I do not believe that approval ‘by other nations and peoples’ should buttress our commitment to American principles any more than (what should logically follow) disapproval by ‘other nations and peoples’ should weaken that commitment. (…) What these foreign sources ‘affirm’, rather than repudiate, is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court’s parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. ‘Acknowledgment’ of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court’s judgment – which is surely what it parades as today.” 543 U.S. 2005, Roper v. Simmons, dissenting opinion of Justice Scalia, pp. 16–23. According to A. Levasseur, with the exception of Louisiana, the relevance of foreign and comparative law in American courts “is almost nil”. See “The Use of Comparative Law by Courts”, in U. Drobnig and J. H. M. van Erp (eds), The Use of Comparative Law by Courts (The Hague 1999), 333. This does not mean, however, that there are no examples of state courts or of the United States Supreme Court referring to foreign legal sources. For example, in the above-mentioned case of Roper v Simmons the Court held that the execution of offenders who were under the age of eighteen at the time of the commission of the crime was a violation of the Eighth Amendment. According to the majority of the Court, this view drew support from the fact that executing juvenile offenders violated several international treaties and that “the overwhelming weight of international opinion [was] against the juvenile death penalty”. Consider also Roe v. Wade, 410 US 113 (1972).
- 25.
See on this Mak (2011), p. 420 ff.
- 26.
It should be noted here that even when references to foreign legal systems are made, these are often limited to the interpretative analyses of statutory provisions offered by scholars. The legislative enactments to which these analyses pertain, the socio-cultural environment in which the relevant provisions operate as well as the comparison of this environment with that of the recipient country, are either not considered at all or, when they are considered, never appear in the court’s judgment.
- 27.
Consider on this issue Drobnig (1999), pp. 3–21.
- 28.
Martinico and Pollicino (2010).
- 29.
Koopmans (1996), p. 549.
- 30.
BGH 5 March 1963, BGHZ 39, 124 and BVerfG 14 February 1973, BVerfGE 34, 269.
- 31.
BGH [1992] Neue Juristische Wochenschrift 1463.
- 32.
High Court of Australia, Mabo and Others v. State of Queensland (1992) 107 ALR 1.
- 33.
Inter alia in Van der Peet v. The Queen (1996) 2 SCR 507.
- 34.
[2003] 1 AC 32.
- 35.
See on this matter Scherpe (2004), p. 164 ff.
- 36.
Consider on this Barak (2006), p. 118.
- 37.
- 38.
Consider on this Reimann (2001), p. 1103.
- 39.
According to R. B. Schlesinger, the phrase ‘general principles of law recognized by civilized nations’, “refers to principles which find expression in the municipal laws of various nations. These principles, therefore, can be ascertained only by the comparative method.” Comparative Law: Cases, Text, Materials, 5th ed., (Mineola NY 1988), 36. See also Schlesinger (1957), p. 734; David and Jauffret-Spinosi (2002), p. 7. See also Kiss (1980), p. 41.
- 40.
- 41.
See on this Mahoney (2004), p. 135.
- 42.
In the Nold judgment, for instance, the Court expressed the view that “fundamental rights form an integral part of the general principles of law (…) In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the constitutions of those States” (Nold v Commission, case 4-73, 14 May 1974, para 13). The Court has used the comparative method in diverse fields of law and in connection with a variety of legal issues. Consider, e.g., Algera, joined cases 7/56, 3/57 to 7/57, 12 July 1957; Hansen and Balle v Hauptzollamt de Flensburg, case 148/77, 10 October 1978; Zelger v Salinitri, case 129/83, 7 June 1984; CECA v Ferriere Sant’Anna, case 168/82, 17 May 1983; Orkem, case 374/87, 18 October 1989. And see Kakouris (1999), p. 100 ff; Pescatore (1980), p. 337.
- 43.
- 44.
See on this von Bar (1987), p. 1, n. 123 et seq.
- 45.
Of particular importance in this respect is the Hague Conference on Private International Law.
- 46.
- 47.
- 48.
Consider, for example, the situation where a judge is required to decide whether a will made by a citizen of a foreign country is invalid due to lack of capacity of the testator. According to the conflict of laws rules applying in the country of the forum, this question must be decided in accordance with the law in the testator’s country. It thus becomes necessary for the judge to resort to the applicable foreign legal system in order to find the rules that correspond, in content and substance, to the rules of their own system concerning the capacity to make a will, irrespective of the terminological and other differences that may exist between the two systems. Similar considerations apply in connection with the recognition and implementation of foreign judicial decisions.
- 49.
- 50.
Dannemann (2019), pp. 390, 407–408.
- 51.
- 52.
- 53.
Zweigert and Kötz (1998), p. 16.
- 54.
Ibid. 25.
- 55.
Resolution A2159/89 of the European Parliament on action to bring into line the private law of the Member States, [1989] OJ C158/400. Reference should also be made in this connection to a report published by the Directorate General for Research of the European Parliament in 1999, under the title ‘The Private Law Systems in the EU: Discrimination on Grounds of Nationality and the Need for a European Civil Code.’ See European Parliament, Directorate General for Research, Working Paper, Legal Affairs Series JURI 103 EN (1999).
- 56.
In this connection reference should be made to the Principles of European Contract Law, a work of several European academics working in an independent capacity (the Commission on European Contract Law or ‘the Lando Commission’) (see Principles of European Contract Law, Parts I and II Revised 2000, Part III 2003); the Study Group on a European Civil Code (the successor to the Lando Commission), which prepared several volumes of the Principles of European Law; the Acquis Group, focusing on the systematic arrangement of current Community law with a view to elucidating the common structures of the emerging Community private law; the Common Core of European Private Law Project, which has completed several important comparative studies on European private law; the Academy of European Private Lawyers (‘The Gandolfi Project’), which has published a draft European Contract Code inspired by the Italian Civil Code, and a draft Contract Code prepared for the Law Commissions of England and Scotland; the European Group on Tort Law, which has drafted the Principles of European Tort Law; and the Commission on European Family Law, which carries out research concerned with the harmonization of family law in Europe.
- 57.
Merryman and Clark (1978), p. 58.
- 58.
The UNIDROIT is an independent intergovernmental organization concerned with the harmonization and coordination of private and especially commercial law between states and the formulation of uniform instruments, principles and rules to attain these goals. It was established in 1926 as an auxiliary organ of the League of Nations; after the League’s demise, it was re-established in 1940 on the basis of a multilateral agreement (the UNIDROIT Statute). Achievements include: the Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods (The Hague, 1964); the Convention relating to a Uniform Law on the International Sale of Goods (The Hague, 1964); the Convention providing a Uniform Law on the Form of an International Will (Washington, 1973); the Convention on Agency in the International Sale of Goods (Geneva, 1983); the UNIDROIT Convention on International Financial Leasing (Ottawa, 1988); the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995); the UNIDROIT Model Law on Leasing (2008); and the UNIDROIT Convention on Substantive Rules for Intermediated Securities (2009). Consider also Bonell (2006).
- 59.
This is the core legal body of the UN systems in the field of international trade law. In establishing the Commission, the UN General Assembly recognized that disparities in national laws governing international trade created obstacles to the flow of trade, and it regarded the Commission as the vehicle by which the United Nations could play a more active role in reducing or removing these obstacles. The focus of UNCITRAL’s work is the modernization and harmonization of rules on international commercial transactions. Achievements include: the Convention on Contracts for the International Sale of Goods (1980); the Model Law on International Credit Transfers (1992); the Model Law on International Commercial Conciliation (2002); and the Model Law on International Commercial Arbitration (1985 – amended 2006).
- 60.
The European Committee on Legal Cooperation (CDCJ) is an inter-governmental body concerned with the standard-setting activities of the Council of Europe in the fields of public and private law. It promotes law reform and cooperation in fields of administrative law, civil law, data protection, family law, information technology and law, justice and the rule of law, nationality, refugees and asylum seekers. The Committee carries out its tasks through the adoption of draft conventions, agreements, protocols or recommendations; the organization and supervision of colloquies and conferences; and the monitoring of the implementation and functioning of international instruments coming within its field of competence. Recent achievements include: the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007); and the European Convention on the Adoption of Children (revised, 2008).
- 61.
The Hague Conference on Private International law is an intergovernmental organization concerned with the progressive unification of the rules of private international law. The principal method used to achieve this purpose consists in the negotiation and drafting of multilateral treaties or Conventions in the various fields of private international law (international judicial and administrative cooperation; conflict of laws for contracts, torts, maintenance obligations, status and protection of children, relations between spouses, wills and estates or trusts; recognition of companies; jurisdiction and enforcement of foreign judgments). Notable achievements include: the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (2007); the Convention on Choice of Court Agreements (2005); the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996); the Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (1993); the Convention of on the Law Applicable to Contracts for the International Sale of Goods (1986); and the Convention on International Access to Justice (1980).
- 62.
The World Intellectual Property Organization is a United Nations agency dedicated to developing an international intellectual property system. It seeks to: harmonize national intellectual property legislation and procedures; provide services for international applications for industrial property rights; provide legal and technical assistance to countries; and facilitate the resolution of private intellectual property disputes.
- 63.
The International Labour Organization is a UN specialized agency which seeks to bring together governments, employers and workers to set labour standards, develop policies and devise programmes. It carries out its work through three main bodies (The International labour Conference, the Governing body and the Office), which comprise governments’, employers’ and workers’ representatives.
- 64.
This non-governmental organization is concerned with maritime law and related commercial practices; its object is to contribute to the unification of maritime law in all its aspects.
- 65.
The ICAO is a UN Specialized Agency seeking to promote secure and sustainable development of civil aviation through cooperation amongst its member States. The charter of ICAO is the Convention on International Civil Aviation, drawn up in Chicago in December 1944, and to which each ICAO Contracting State is a party.
- 66.
See on this Rosett (1992), p. 683 ff.
- 67.
Taupitz (1993).
- 68.
Merryman and Clark (1978), pp. 51–67.
- 69.
The phenomenon of legal transplantation as a factor conducive to the convergence of legal systems has attracted much attention in recent years, especially since the publication in 1974 of A. Watson’s book Legal Transplants: An Approach to Comparative Law. According to this author, the term ‘legal transplants’ refers to “the moving of a rule (…) from one country to another, or from one people to another”. See Legal Transplants: An Approach to Comparative Law (Edinburgh 1974; 2nd ed. Athens, Ga, 1993), 21. And see Chap. 7 below.
- 70.
Some systems are relatively open to the idea of external influence, whilst others (notably the United States of America) are characterized by aversion towards this idea. See on this issue Palmer (2001), p. 1093. One should note here that resistance to the borrowing of foreign legal norms and practices is not correlated with a tendency not to export legal institutions (as manifested by the fact that American law has exercised strong influence on other legal systems).
- 71.
Legal Transplants, supra note 69, at 6.
- 72.
Legal Transplants, supra note 69, at 21. Watson concludes that the moving of a rule or a system of law from one country to another has been shown to be the most fertile source of legal development, since “most changes in most systems are the result of borrowing.” (Ibid. 94).
- 73.
Despite the rather far-reaching nature of some of his statements, it is important to observe that Watson has generally confined his studies, and the deriving theory of legal change, to the development of private law in Western countries.
- 74.
It should be noted here that gaining inspiration from ideas and practices that prevail in other systems does not pertain to state institutions only. The practice of transplantation is often adopted by other agents, such as commercial lawyers, human rights activists, NGOs and others. See on this Slaughter (2004), pp. 239–240. Consider also Glenn (2001), p. 977. And see relevant discussion in Chap. 7 below.
- 75.
- 76.
See on this Levi-Strauss (2001), p. 103 ff.
- 77.
del Vecchio (1960), pp. 493, 497. As Albert Hermann Post, one of the founders of the School of Comparative Anthropology (Rechtsethnologie), has remarked, “there are general forms of organization lying in human nature as such, which are not linked to specific peoples. (…) [F]rom the forms of the ethical and legal conscience of mankind manifested in the customs of all peoples of the world, I seek to find out what is good and just. (…) I take the legal customs of all peoples of the earth as the manifestations of the living legal conscience of mankind as a starting-point of my legal research and then ask, on this basis, what the law is”. Die Grundlagen des Rechts und die Grundzüge seiner Entwicklungsgeschichte: Leitgedanken für den Aufbau einer allgemeinen Rechtswissenschaft auf sociologischer Basis XI (Oldenburg 1884). According to Post, [“C]omparative-ethnological research seeks to acquire knowledge of the causes of the facts of the life of peoples by assembling identical or similar phenomena, wherever they appear on earth and by drawing conclusions about identical or similar causes”. Bausteine für eine allgemeine Rechtswissenschaft auf vergleichend-ethnologischer Basis (Oldenburg 1880), citations at 12–13. And see Post (1886); Maine (1866). See also Siems (2018), p. 35 ff.
- 78.
Zweigert (1966), p. 5ff; Zweigert and Kötz (1987), p. 36. In this connection, reference should made to what is known as ‘common core research’: a form of research that seeks to bring to light the highest common factor of an area of substantive law in a number of countries, or of laws from a number of countries within the same legal family. Common core research is invariably construed as combining the substantive claim for universality and the particular methods applied to achieve its objective. This form of research constitutes a reliable method of identifying shared legal principles, and plays an important part in projects concerned with the international or regional unification or harmonisation of law. See Schlesinger (1961), p. 65 ff; Formation of Contracts: A Study of the Common Core of Legal Systems (Dobbs Ferry NY 1968); Comparative Law, 4th ed., (Mineola, N.Y. 1980), 36ff.
- 79.
Merryman and Clark (1978), p. 60.
- 80.
According to Thijmen Koopmans, “In the nineteenth century history was very much the fashion, in particular on the Continent: history of the codes, pre-existing Roman law traditions, Poitier on obligations, etc. Our own (20th) century discovered society; it wondered how the law works, what its economic context is and how legal decisions can be adjusted to social needs; and it saw the judge as a kind of decision maker, or even a ‘social engineer’. The twenty first century may become the era of comparative methods …Our problems in society increase as our certainties in religious, moral and political matters dwindle; and more and more problems are common problems. The search for common solutions is only slowly beginning.” “Comparative Law and the Courts”, (1996) 45 International and Comparative Law Quarterly 545, 555.
- 81.
See King (1997), p. 119; Ferrari (1990), p. 63; Markesinis (1994); Zimmerman (1995), p. 1. For a critical perspective on this issue see Legrand (1996), pp. 52–61. A number of scholars have raised the question of whether or not ‘natural convergence’ is simply a euphemism for what they call ‘Western legal imperialism’. See on this issue von Mehren (1971), p. 624; Knieper (1996), p. 64; Whitman (2009), p. 313.
- 82.
As Alf Ross has remarked, “all application of law has as its basis conditioning facts whose existence the judge regards as proved”. On Law and Justice (Berkeley 1959), 214.
- 83.
- 84.
One area in which definitional problems frequently arise is the ‘unauthorized practice of law’, i.e. the provision of legal services by persons who are not licensed as legal practitioners.
- 85.
Other labels include ‘counsel’, ‘advocate’, ‘attorney’, ‘claims agent’, ‘marriage counsellor’ and ‘tax advisor’.
- 86.
This question is crucial in relation to the study of lawyering in countries where those classified as ‘lawyers’ perform only a small portion of the legally oriented processes of society.
- 87.
- 88.
Reimann (2001), p. 1103.
- 89.
Consider on this matter Teubner (1997).
- 90.
- 91.
- 92.
As Thijmen Koopmans has remarked, “For a long time it looked as though comparative law was a matter for academic research, difficult and, surely, very interesting, beautiful to know something about, but not immediately relevant to the daily life of the law. Over the last ten or fifteen years the legal climate seems to be changing. This evolution may be influenced by the process of European integration; it may also result from the fact that we are living closer together (the ‘global village’ situation); it may finally be an autonomous process, occasioned by the lawyer’s search for fresh perspectives, in particular when completely new legal problems are to be solved.” “Comparative Law and the Courts”, (1996) 45 International and Comparative Law Quarterly 545, at 545.
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Mousourakis, G. (2019). Assessing the Potential of Comparative Law in Expanding Legal Frontiers. In: Comparative Law and Legal Traditions. Springer, Cham. https://doi.org/10.1007/978-3-030-28281-3_2
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