Advertisement

Tracing the Early Origins of Comparative Law

  • George Mousourakis
Chapter

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.

References

  1. Baviera G (1968) In: Riccobono S, Baviera G, Ferrini C, Furlani G, Arrangio-Ruiz V (eds) Fontes iuris romani anteiustiniani, 2nd edn. Florence, vol II, 543–589Google Scholar
  2. Berlin I (2000) Three critics of the enlightenment: Vico, Hamann, Herder. London, p 47Google Scholar
  3. Berlin I (2002) Three critics of the enlightenment: Vico, Hamann, Herder. London, pp 135–136Google Scholar
  4. Bodenheimer E (1974) Jurisprudence: the philosophy and method of the law. Cambridge, pp 6–10, 13–14Google Scholar
  5. van Caenegem RC (1973) History of European civil procedure. Int Encyclopedia Comp Law, Leiden 16. 2Google Scholar
  6. Donahue C (2019) Comparative Law before the Code Napoléon. In: Reimann M, Zimmermann R (eds) The Oxford handbook of comparative law, 2nd edn. Oxford, pp 3–7Google Scholar
  7. Ewald WB (2007) Aristotle. In: Clark DS (ed) Encyclopedia of law and society: American and global perspectives. Thousand Oaks, 1, 92–93Google Scholar
  8. Friedrich CJ (1963) The most that can be admitted is that there is a presumption in favour of the contention that a legal institution found in diverse civitates is part of the law of nature. The Philosophy of Law in Historical Perspective. Chicago, p 32Google Scholar
  9. Hegel GWF (2008) Outlines of the philosophy of right, (trans: Knox TM). OxfordGoogle Scholar
  10. Jayme E (2000) Rechtsvergleichung und Fortschrittsidee in Rechtsvergleichung - Ideengeschichte und Grundlagen von Emerico Amari zur Postmoderne. Heidelberg, p 20Google Scholar
  11. Launay R (2001) Montesquieu: the Specter of Despotism and the origins of comparative law. In Riles A (ed) Rethinking the masters of comparative law. Oxford, p 22Google Scholar
  12. Le Moigne J-L (1999) Les epistimologies constructivistes, 2nd edn. Paris, p 49Google Scholar
  13. Mommsen T (1887) Romisches Staatsrecht. Leipzig, p 606Google Scholar
  14. Mulgan RG (1977) Aristotle’s political theory: an introduction for students of political theory. Oxford, pp 60–77, 116–138Google Scholar
  15. Rabello AM (2000) Montesquieu et la codification du droit privé (le code Napoléon). Revue internationale de droit comparé 52(1):147–156CrossRefGoogle Scholar
  16. Siems M (2018) Comparative law, 2nd edn. Cambridge, p 13Google Scholar
  17. Winroth A (2000) The making of Gratian’s Decretum. CambridgeGoogle Scholar
  18. Wormald P 1999) The making of English law: King Alfred to the Twelfth Century. Oxford, pp 265–285Google Scholar
  19. Zweigert K, Kötz H (1998) An introduction to comparative law, 3rd edn. Oxford, p 49Google Scholar

Copyright information

© Springer Nature Switzerland AG 2019

Authors and Affiliations

  • George Mousourakis
    • 1
  1. 1.International RelationsRitsumeikan UniversityKyotoJapan

Personalised recommendations