Abstract
Comparative law, as a method of legal science and as an academic discipline, is largely a product of modern Western thought. This does not mean, however, that legal comparison, as a form of cognition involving the study of foreign laws, had no place in earlier civilizations. From a very early period, people observed that the legal norms of different societies were not identical. These diverse norms were sometimes taken into consideration when new legal rules and institutions were being developed. The rationale appears to be that the laws of states or communities that were particularly dominant or perceived as being more advanced were deliberately imitated or adopted by other states or communities, and this process was probably repeated in various parts of the world. This chapter examines the role of legal comparatism in ancient, medieval and early modern European legal thought and practice with the view to tracing some key ideas that contributed to the rise of comparative law. Special attention is given to the development of the comparative approach to law in the Renaissance and Enlightenment eras – a period marked by the emergence of scientific rationalism and the rise of the modern nation-state and national legal systems.
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- 1.
Siems (2018), p. 13.
- 2.
The third book of the Laws discusses the origins and evolution of political systems, and attempts to draw lessons for the legislator from the histories of several actual states, including Athens, Sparta, Argos, Crete and Persia.
- 3.
As stated in this work, “Our purpose is to consider what form of political community is best of all for those who are most able to realize their ideal life. We must therefore examine not only this but other constitutions, both such as actually exist in well-governed states, and any theoretical forms which are held in esteem, in order to ascertain which features of them are good and useful.” Politics, Bk 2, 1.
- 4.
Of this work, probably composed by members of Aristotle’s school, only a small part has survived (the ‘Athenian Constitution’). For a closer look see Bodenheimer (1974), pp. 6–10, 13–14; Ewald (2007), 1, 92–93; Mulgan (1977), pp. 60–77, 116–138. And see Aristotle, Politics, E. Barker trans., (Oxford 1995).
- 5.
Zweigert and Kötz (1998), p. 49.
- 6.
This approach drew support from the doctrine of the Sophist philosopher Protagoras, that “man is the measure of all things”. This is understood to mean that all knowledge is relative to the person seeking it. What seems to each person is as far as he is concerned. Reality exists only in relation to one’s own feelings and convictions. The Sophists pointed out that customs and standards of behaviour earlier accepted as universal and absolute, and of divine creation, were in fact local and relative. It was against this view that Plato’s work was directed. What Plato objected to was the general tendency in the Sophist thinking to make relative the very norms that should possess absolute binding force. For him, law and the laws are an object of free philosophical speculation, and they can be derived only from reason and the idea of the good. Every right law is merely an approximation to the eternal truths – an imperfect reproduction of the idea of law and justice. From this notion (associated with Plato’s famous theory of forms) derives the strand of natural law thinking that regards values as having an eternal existence and an eternal veracity.
- 7.
Greek thinkers believed that the concept of a state (polis) is inconceivable unless the concept of law (nomos) is simultaneously thought of (see, e.g., Plato, Laws I 644d). The meaning of this is that the state is identified with a particular type of legal order and is also identified by reference to its laws. This is evident from the close connection between the laws and the ‘community of citizens’, the ‘universitas civium’, the latter being endowed with a common will expressed through the legal order. The law is connected with the state because it makes it an object of knowledge. It may be described as the mould, which bestows regularity and normality on the life of a given society. In this respect, the origin of law cannot be separated from the development of the community as a whole. This implies that legal development is basically a social one. At the same time, the development of the community is eminently rational, since the community may be grasped through its legal order. This account perfectly agrees with the analysis of the origin and development of the law in Plato’sLaws III.
- 8.
As Aristotle elaborates in Book 5 of the Nichomachean Ethics: “There are two kinds of political justice, one natural and the other legal. The natural is that which has the same validity everywhere and does not depend upon acceptance; the legal is that which in the first place can take one form or another indifferently, but which, once laid down, is decisive (…) [L]aws that are not natural but man-made are not the same everywhere, because forms of government are not the same either; but everywhere there is only one natural form of government, namely that which is best”. Although Aristotle seems to have accepted that there is a natural and universal right and wrong, apart from any human ordinance or convention, he fell short of developing a natural law theory.
- 9.
In the words of Friedrich (1963), p. 32.
- 10.
The Law of the Twelve Tables does have some elements in common with Athenian law, but these are not of the kind that could suggest a direct influence. The relevant provisions that, according to Cicero, were extracted from the laws of Solon pertain mainly to the settling of disputes between neighbours, the right of forming associations (collegia) and restrictions on displays at funerals. See Cicero de leg. 2. 23. 59; 2. 25. 64.
- 11.
Like other ancient peoples, the Romans observed the personality of the laws principle, whereby each person lived by the law of their community. Thus, the Roman iuscivile (the civil law of the Roman state) was the law that applied exclusively to Roman citizens, and the term ius civitatis denoted the legal rights to which only Roman citizens were entitled.
- 12.
See Mommsen (1887), p. 606.
- 13.
Gaius, Institutes, 1. 1.
- 14.
Ibid. Consider also the Digest ofJustinian, 41. 1. 1 pr., 9. 3 (Gaius).
- 15.
Gaius, Institutes, 2. 65. The mancipatio was a highly formal procedure employed when ownership over certain types of property, referred to as res mancipi, was transferred. Res mancipi included land and buildings situated in Italy, slaves and draft animals, such as oxen and horses. All other objects were res nec mancipi. The ownership of res nec mancipi could be passed informally by simple delivery (traditio).
- 16.
Gaius, Institutes, 3.154-154a.
- 17.
The Collatio legum mosaicarum et romanarum was first edited in the sixteenth century but more materials were added later based on two manuscripts discovered in the nineteenth century. The standard modern edition is that of Th. Mommsen included in his Collectio librorum iuris anteiustiniani (1890), III; see also Baviera (1968), pp. 543–589; B. Kübler and E. Seckel, Iurisprudentiae anteiustinianae reliquias in usum maxime academicum compositas a P. E. Huschke, 6th ed., (Leipzig 1927). For commentary consider E. Volterra, Collatio legum mosaicarum et romanarum, Memorie della R. Accademia nazionale dei Lincei: Classe di scienze morali, storiche e filologiche, 6.3.1 (1930); G. Barone-Adesi, L’età della Lex Dei, Pubblicazioni dell’Istituto di diritto romano e dei diritti dell’Oriente mediterraneo, 71 (Naples 1992).
- 18.
The author of this work remains unknown, although the attempted comparison of Roman and Mosaic law suggests that he was probably of Jewish origin. For a closer look at the role of legal comparatism in Greek and Roman antiquity consider Donahue (2019), pp. 3–7.
- 19.
When Justinian reincorporated Italy into the empire (553 AD), his legislation was introduced to this realm. However, its validity was only sustained for a brief period as most of the Byzantine territories in Italy fell to the Lombards in 568 AD. After that time, Justinian’s legislation only applied in those parts of Italy that remained under Byzantine control. The rest of Italy displayed a similar pattern to Gaul and Spain as Roman law continued to exist through the application of the personality of the laws principle.
- 20.
In this connection reference should be made to the so-called ‘code’ of the Anglo-Saxon King Alfred (849–899). See Wormald (1999), pp. 265–285.
- 21.
After the annexation of the Lombard kingdom by the Frankish Empire during the reign of Charles the Great (742–814) Lombard law continued to apply in northern Italy. At Pavia, the centre of Lombard Italy, a school of Lombard law was established probably as early as the ninth century. The study of Lombard law was based primarily upon the Liber Papiensis, a work composed probably in the early years of the eleventh century (this compilation contained materials dating from the Edict of Rothari, the basic statement of Lombard Law, published in 643). Reference should also be made here to the Lombarda or Lex Langobarda and the Expositio ad Librum Papiensem that combined materials drawn from Lombard and Roman sources with special reference to the Institutes, the Code and the Novels of Justinian.
- 22.
During this period, a sourcebook of feudal law, referred to as Libri feudorum, was used for study in Northern Italy, although it is unclear where.
- 23.
This method was by no means new—it had been relied upon by earlier medieval scholars and was similar to that used by the jurists of the law-schools of Constantinople and Beirut during the later imperial era.
- 24.
For a closer look at the School of the Glossators see Chap. 8 below.
- 25.
For a closer look see Winroth (2000).
- 26.
See on this van Caenegem (1973), p. 16. 2.
- 27.
The new school with chief centres at the universities of Pavia, Perugia, Padua and Pisa, reached its peak in the fourteenth century and prevailed in the fifteenth and sixteenth centuries. The most influential of the Commentators embraced Bartolus de Saxoferrato (1314–1354) and his pupil Baldus de Ubaldis (1327–1400). Bartolus’ commentary on the whole of Justinian’s codification was acknowledged as a work of authority and extensively used by legal practitioners and jurists throughout Western Europe. For a closer look at the School of the Commentators see Chap. 8 below.
- 28.
In the realm of philosophy this period corresponded with the full flowering of medieval scholasticism. The scholastic method, as applied to law, sought to expose the general principles of the law so as to erect a comprehensive theory of law.
- 29.
For a closer look at the role of legal comparatism in the Medieval age see Donahue (2019), p. 7 ff.
- 30.
In order to reduce the confusion caused by the multiplicity of customs, King Charles VII ordered the compilation of the customs of all regions of France in his Ordinance of Montils-les-Tours in 1453. Although the direction proved largely ineffectual, it was repeated by subsequent monarchs and most of the customary law had been committed to writing by the end of the sixteenth century. Although the publication of the customs removed much of the confusion caused by local differences, legal unity was certainly not achieved. In addition to the differences between Northern and Southern France, considerable regional diversity persisted even within each of the main territorial divisions.
- 31.
The chief aim of the humanist scholars was the rediscovery of the Roman law existing in Roman times by applying the historical method instead of the scholastic method of the medieval Commentators. The humanists’ approach to Roman law as a historical phenomenon inspired the appreciation of the jurists for the differences between Roman law and the law of their own era. By drawing attention to the historical and cultural circumstances in which law develops, the humanists prepared the ground for the eventual displacement of the Roman ius commune and the emergence of national systems of law. On the humanist movement see also Chap. 8 below.
- 32.
The parlements were regional judicial and legislative bodies in France’s Ancien Regime: the social and political system that prevailed in France under the late Valois and Bourbon dynasties from the fifteenth century to the time of the French Revolution in the later eighteenth century. There were twelve parlements, with the largest one being based in Paris and the rest in the provinces. The relevant offices could be transferred by inheritance or acquired by purchase.
- 33.
It should be noted that the comparative method was not universally employed by sixteenth-century French jurists, at least not as broadly as Coquille used it.
- 34.
For a closer look at the role of legal comparatism in sixteenth-century French legal thought see Donahue (2019), p. 3, 13 ff.
- 35.
See F. Bacon, De dignitate et augmentis scientiarum (1623), bk. Viii, c.3.
- 36.
On the School of Natural law see Chap. 8 below.
- 37.
Selden explored the influence of Roman law on the common law of England and applied the comparative method in the History of Tithes, one of his best-known works, and in his treatises on Eastern legal systems.
- 38.
Pufendorf is best known for his book De jure naturae et gentium (on the Law of Nature and Nations, 1672). His earlier work Elementa jurisprudentiae universalis (Elements of a Universal Jurisprudence, 1660) led to his being appointed to a chair in the Law of Nature and Nations especially created for him at the University of Heidelberg. As E. Wolf remarks, in his work “Pufendorf combines the attitude of a rationalist who describes and systematizes the law in the geometrical manner with that of the historian who rummages through the archives and who explores historical facts and personalities.” Grosse Rechtsdenker der deutschen Geistesgeschichte (Tübingen 1944), 298.
- 39.
A revised edition of this work was published in 1760.
- 40.
These included his Traité des obligations I et II (1761–1764); Traité du contrat de vente (1762); Traité des retraits (1762); Traité du contrat de constitution de rente (1763); Traité du contrat de louage; (1764); Traité du contrat de société (1764); Traité de cheptels (1765); Traité du contrat de prêt de consomption (1766); Traité du contrat de dépôt et de mandat (1766); Traité du contrat de natissement (1767); Traité du contrat de mariage I et II (1766); Traité du droit de domaine de propriété (1772); and Traité de la possession et de la prescription (1772). Pothier’s works were widely used by jurists and lawyers throughout the eighteenth and nineteenth centuries. An important collection of these works in 11 volumes was published by Dupin in 1824/25.
- 41.
For example, in his treatise on the institution of ownership Pothier shows how, in a feudal system that encompassed several forms of property and related entitlements, the fundamental Roman law concept of property could be employed to overcome, in theory at least, many of the discrepancies of the current system.
- 42.
The Civil Code adopted many of the legal solutions proposed by Pothier, especially in the field of the law of obligations. The drafters of the Code also adopted the systematic structure preferred by Pothier, which goes back to the classical Roman juristGaius and was followed by Emperor Justinian: persons; things (including obligations and succession); and actions.
- 43.
See Berlin (2000), p. 47.
- 44.
See on this Jayme (2000), p. 20.
- 45.
On the epistemological foundations of Vico’s thought see le Moigne (1999), p. 49.
- 46.
In his conception of history Vico employs what may be described as an early version of the so-called ‘reification theory’, a form of ‘alienation’ (Entfremdung), according to which for long periods of time people are dominated by entrenched beliefs (especially religious beliefs), laws and institutions which, although created by human beings, derive their authority from the illusion that they are objective, eternal and universal, just like the laws of nature. According to him, the ‘common mind’ or collective consciousness of each people or nation regulates social life in a way that reflects the prevailing beliefs. See on this Berlin (2002), pp. 135–136.
- 47.
Montesquieu’s work represents an early attempt to construct a theory of positive law and a veritable science of legal history. See Rabello (2000), pp. 147–156.
- 48.
De l’esprit des lois, Book 1, Ch. 3. As H. Gutteridge has remarked, it was Montesquieu “who first realized that a rule of law should not be treated as an abstraction, but must be regarded against a background of its history and the environment in which it is called upon to function.” Comparative Law: An Introduction to the Comparative Method of Legal Study and Research (Cambridge 1949), 6. It should also be noted here that, according to contemporary scholars, Montesquieu’s work set the foundations of modern sociology. As L. Pospisil has remarked, “With his ideas of the relativity of law in space as well as in time, and with his emphasis on specificity and empiricism, [Montesquieu] can be regarded as the founder of the modern sociology of law in general and of the field of legal dynamics in particular.” Anthropology of Law: A Comparative Theory (New York 1971), 138. Consider also Launay (2001), p. 22.
- 49.
The Huguenots were French Protestants who, due to religious persecution, were forced to flee France to other countries in the sixteenth and seventeenth centuries.
- 50.
See Launay (2001), pp. 22, 24.
- 51.
See Launay 2001), 22, 25–26.
- 52.
The great majority of the members of these bodies belonged to the French aristocracy and tended to react with hostility whenever the monarchy introduced measures taken to undermine their own privileges.
- 53.
It should be noted here that not all of Montesquieu’s contemporaries subscribed to his notion of “Asian despotism”, and this may be explained by reference to the political differences that prevailed among different classes in society. For instance, Voltaire, who opposed the privileges of the aristocracy and steadfastly supported the monarchy against the power of the parlements, spoke very highly of China and other Asian systems of government. Consider on this Launay (2001), pp. 22, 37.
- 54.
It is thus unsurprising that Montesquieu regarded the conquest of America by the Spanish as disastrous for both Spain and the peoples of that continent and opposed similar actions by the Europeans in Asia and Africa.
- 55.
Montesquieu’s notion of the spirit of a nation bears a certain resemblance to Rousseau’s concept of the general will and to some extent corresponds to the modern notion of a system of values or beliefs. According to him, one should not attempt to change the habits and customs of a people by means of laws, for such laws would appear too tyrannical. See: On the Spirit of the Laws, XIX, 14.
- 56.
The notion that one can arrive at substantial knowledge about the nature of the world by pure reasoning alone and without appeal to any empirical premises.
- 57.
On the Spirit of the Laws, Book XXIX, 11.
- 58.
On the Spirit of the Laws, Book XXIX, 13.
- 59.
The praise extends also to the notion of a “general spirit” animating political regimes. “We must recognize”, Hegel remarks, “the depth of Montesquieu’s insight in his now famous treatment of the animating principles of forms of government.” This insight is particularly obvious in the discussion of democracy, where “virtue” is extolled as the governing principle, “and rightly so, because that constitution rests in point of fact on moral sentiment seen as the purely substantial form in which the rationality of absolute will appears in democracy.” See Hegel (2008), Introduction para. 3, para. 261, para. 273. On the role of legal comparatism in the seventeenth and eighteenth century European legal thought see Donahue (2019) p. 3, 19 ff.
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Mousourakis, G. (2019). Tracing the Early Origins of Comparative Law. In: Comparative Law and Legal Traditions. Springer, Cham. https://doi.org/10.1007/978-3-030-28281-3_3
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