COMPARATIVE LAW
Slideshow #1
Course 522
LLM
KiLAW Spring 2013
Dr Myra Williamson
Overview of this slideshow
• Housekeeping
• Attendance, location, website, Twitter, etc
• Textbooks and readings
• Teaching and learning
• Course outline
• Distribute & discuss
• Introduction to Comparative Law
Housekeeping
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Website: www.drmyrawilliamson.com
Twitter: @MyraWilliamson
Location: change?
Textbooks and readings
• Bussani and Matei, The Cambridge Companion to Comparative
Law
• Materials posted on my website
• Texts mentioned in the course outline
Teaching and Learning
Key terms and ideas:
• Lecture v seminar style
• Learning outcomes
• Constructive alignment
• Student-centered leaning
• The role of the lecturer:
• “sage on the stage” v “guide on the side”
• The role of the student:
• active learners, life-long learners
Course outline
• Please make sure that you download/print/read the course
outline
• It contains important information including:
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Course description
Learning outcomes
Assessment
Lecture schedule
Introduction to Comparative Law
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What is it?
It means different things to different people
The essence is comparison between two or more legal systems
Is it merely a method or is it a discipline or field of knowledge in its
own right?
• It is a method of inquiry – comparison – not a body of law in itself
(eg compare “comparative law” with, say, “contract law”)
• Mainstream view:
“the discipline consists of a comparison of the world’s legal systems or
particular elements thereof in pursuit of a variety of academic and
practical objectives”
• Source: Zweigert and Kotz, Introduction to Comparative Law, cited in
Bussani and Matei at 21-22
Early Origins
• Ancient Greece:
• Plato (429-348 BCE) discussed the rules of several Greek and
other city-states in the Laws
• Aristotle (384-322 BCE) examined many legal structure in his
Politics
• Sometimes they are referred to as the ‘fathers’ of comparative
law and politics (see picture on next slide – this comes from UCL)
Aristotle and Plato,
sometimes called the
‘fathers’ of comparative
law and politics
“The School of Athens”
by Raphael
Image taken from
University College
London, Institute of
Global Law, logo
http://www.ucl.ac.uk/law
s/global_law/
Origins continued…
• Rome: jurists had a practical interest in foreign laws
• The Romans created a special office (praetor peregrinus) in
242 BCE who supervised jurisdiction over disputes involving
non-Romans
• There was no real philosophical interest in studying foreign
laws – it was a practical matter – because Romans believed in
the superiority of Roman law over foreign law
Origins – modern history
• Comparative legal method dates back to around the 16th
century
• Russian scholars in the 16th century were engaged in
comparative historical studies
• Montesquieu (1689-1755) used comparative law to back-up
his theories about natural law principles
• Montesquieu’s most famous work on comparative law was De
l’esprit des lois (1748)
• He wrote about the need to ensure that the laws of each
nation be adapted in a manner to suit the people for whom
they were framed (see extracts)
Origins – 19th century
• Important comparativists of more recent times include:
• Sir Henry Maine (UK) (1822-1888) – looked at the parallels
between the developlment of English common law and
classical Roman law
• John Henry Wigmore (US) (1863-1943) published A Panorama
of the World’s Legal Systems in 1928 – it covered 16 historical
and contemporary legal systems using pictorial method.
• Wigmore had taught at a university in Tokyo then became
dean of Northwestern University in the US.
Comparative law in Europe
• Europe and the US have been the two strongholds of comparative
law
• 19th Century European congresses were concerned with improving
legislation, facilitating codification, and recognizing foreign legal
entities such as corporations and foreign legal acts such as
judgments.
• 1900 Paris International Congress of Comparative Law – the
birthplace of modern comparative law?
• Jurists supported comparative methods derived from the fields of
history, sociology and anthropology, as well as so-called doctrinal
legal science.
• Read more: http://www.answers.com/topic/comparativelaw#ixzz2Jc8ZUU8D
• Note: emphasis was on comparing European laws with each other
(non-European jurisdictions were largely ignored) and the focus was
mainly on private law
Comparative law in the US
• Pre WWI, there was activity in the US, eg, 1904 Universal Congress
of Lawyers and Jurists
• However, comparative law was largely made popular by Rudolf
Schlesinger (1909-1996), a German lawyer who came to the US in
1938; graduated top of his class at Columbia in 1942 (only nonnative English editor of the Columbia Law Review). He worked as a
lawyer but joined Cornell Law School in 1948; later became
professor of comparative law; later joined University of California,
Hastings College of the Law
• In 1950 he published Comparative Law: Cases-Texts-Materials which
became THE standard text and which helped establish comparative
law in US law schools.
• It was really only after World War II that comparative law became a
common part of US legal education in US law schools
• In 1952 the American Association for the Comparative Study of Law
(today the American Society of Comparative Law) began publishing
the American Journal of Comparative Law. This is the leading journal
in the field.
Comparative law today
• The US and Europe remain as two regions where comparative
law thrives today
• Comparative law is taught at most US law schools; most have
their own student-run comparative law journals
• It’s also taught across European law schools
• The EU still at the forefront, especially with its project on the
harmonization of EU laws.
• Common Core Project
• See link on my website to an article by Ralf Michaels for more
info on European comparative law
Comparative
Legal History
Legal History
Comparative
Law
The field of “comparative legal history”
Comparative legal history…are
you interested in this area??
• Note that comparative legal history is a new but distinct field
of scholarship with the field of comparative law
• Sources/sites/blogs of interest include:
• European Society for Comparative Legal History
• http://esclh.blogspot.ie
This blog has excellent links to journals, conferences and other
websites – check it out
• Comparative Legal History:
• http://www.hartjournals.co.uk/clh/
• http://comparativelegalhistory.wordpress.com
• Interesting article by Michele Graziadei:
http://www.jus.unitn.it/cardozo/Critica/Graziadei.htm
Purpose(s) of comparative law
• What is the purpose of comparative law? What is the point?
• To compare, to improve, to find similarities, to find differences
• There is no consensus about the purpose (see Bussani and
Mattei at 21ff)
• Some purposes are:
• To attain a deeper knowledge of the legal systems of the world
• To perfect a particular legal system (ie. By seeing whether it can
borrow, or transplant, ideas from another legal system)
• To contribute to unification of legal systems on a large or small
scale (eg see the UNDRIOT initiative)
Types of comparative law
• Three ‘types’ of comparative law: practical, sociological and cultural?
• Practical comparative law:
• for the purposes of carrying out transnational litigation, arbitration;
• for reforming the law of one country – ie. more information improves rulemaking and policy formulation
• Assist judges in making difficult decisions
• international unification or harmonisation – improving efficiency eg 1991
Maastricht Treaty in EU; comparative law in the US across states
• Sociological comparative law: investigating the role of law in society
• Cultural comparative law: interesting, academically, to compare and
learn more about others; to increase inter-cultural understanding; to
break down boundaries, promote co-operation, the ‘ignorance breeds
mistrust’ idea; to promote ‘world peace and understanding’ etc;
dispelling prejudice and misunderstanding
Macro v micro
• Macro-comparisons: comparing whole legal systems
• Micro-comparisons: comparing a specific issue or a specific
problem across 2 or more legal systems
• Whether the study is macro or micro, an understanding is
needed of at least 2 legal systems
A point of debate: differences or
similarities?
• One point of debate in the discipline centres on whether
comparative law should look for similarities (things in common
across the legal systems) or differences?
• Should comparative law be directed at harmonizing legal
systems, to make them more like one another, or should it be
aimed at discovering and understanding divergence and
difference
• If the latter, can we avoid saying that one system is ‘better’
than another – ie ‘self-centrism’
• Do we have to choose between the two extremes?
• Schlesinger quote (see next slide)
• What do you think?
Schlesinger on similarities v differences
Schlesinger says ‘to compare means to observe and to explain
similarities as well as differences’… the emphasis is sometimes on
differences and at other times on similarities. He talks of periods of
‘contractive’, which he also calls ‘contrastive’, comparison with the
emphasis on differences, alternating with periods of what might be
called ‘integrative’ comparison, i.e., comparison placing the main
accents on similarities. Thus Schlesinger contrasts ‘integrative
comparative law’ with ‘contractive or contrastive comparative law’. His
conclusion is that the future belongs to ‘integrative comparative law’.
• Schlesinger as quoted in Esin Örücü Critical Comparative Law:
Considering Paradoxes for Legal Systems in Transition (available for
download from a link on my website)
Pause for thought…
• Should legal systems seek to learn from each other? Is there
anything that one legal system can learn from another? Or is
each legal system unique and therefore there is no need to
take any notice of other legal systems? Should judges consider
other jurisdictions when making a decision?
• Video (3 mins): “Why US Law Should Learn From Foreign
Precedents”
• http://www.dailymotion.com/video/xggd2l_can-us-law-learnfrom-foreign-precedent_news#.UQu8yaBnLlI
• Discussion
• Question: do Kuwaiti courts ‘learn from foreign precedents’?