Comparative Law
Spring 2002
Professor Susanna Fischer
CLASS TWO
COMPARATIVE LAW AS AN
ACADEMIC SUBJECT
WRAP-UP OF CLASS ONE: SOME PURPOSES OF
STUDYING COMPARATIVE LAW
Professional Purpose – help lawyers to
work in a global village
Cultural Purpose – broaden
perspectives, give comparative insights
into our own legal system
Scientific Purpose – universal legal
truths, harmonization of legal rules
Reform Purpose – helps us to make
changes to our own legal system
Comparative Law as an
Academic Subject
Sir Otto Kahn-Freund’s Inaugural
Lecture at the University of Oxford on
“Comparative Law as an Academic
Subject”, delivered on May 12, 1965 and
published in (1966) 82 LQR 41.
Kahn-Freund (1900-1979), who
emigrated from Germany to Britain, was
Professor of Comparative Law at the
University of Oxford. He also taught at
the London School of Economics. He
was an eminent labor lawyer and was
interested in law’s social context.
Comparative Law as an
Academic Subject
To what extent does Sir Otto
Kahn-Freund think Comparative
Law is an academic subject?
Comparative Law as an
Academic Subject
Comparative law can help to
understand the teleological and
deductive elements of the law.
What are some examples of this?
Comparative law can also help to
find the structure and locus of
power in a given society.
Kahn-Freund’s Warnings
What does Kahn-Freund warn us
against?
Kahn-Freund’s Warnings
Don’t be lured by homonyms
Don’t be afraid of synonyms
Kahn-Freund on Legal
Transplants
Famous 1974 dispute with another
comparativist, Alan Watson based on different
view of relationship between law and society
Watson thought that no inherent relationship
between law and society – law is autonomous
and develops by transplanting, not because it
is inevitable consequence of social structure
Kahn-Freud disagreed. He believed law can’t
be separated from purpose or circumstances
in which they are made.
Kahn-Freund on Legal
Transplants
Kahn-Freund set out a 2 step process
to determine if a legal transplant was
viable.
STEP ONE: Look at the relationship
between the legal rule that you want
to transplant, and the socio-political
structure of the donor state.
STEP TWO: Compare the sociopolitical structure of donor and
receiving states.
Required Reading for Wednesday
Basil Markesinis, Comparative Law
– A Subject in Search of an
Audience, 53 Modern Law Review
1-21 (Jan. 1990)
Basil Markesinis QC
Professor of
Common and Civil
Law, University
College, London
Jamail Regents Chair
in Law, University of
Texas School of Law
Leading Englishlanguage authority
on European private
law
Basil Markesinis has stated:
Comparative law “is still searching for
an audience even where it has found a
place of sorts in the university
curriculum.”
What does Markesinis mean?
Do you agree? Why or why not?
Markesinis: Using Comparative
Law in Practice
Wants English judges to use foreign
material in their decision making
Indeed, Markesinis believes that if
judges in both common law and civil
law systems use foreign authorities to
provide guidance, they will be better
equipped to find solutions to difficult
legal problems
Markesinis: Convergence of Civil
and Common Law Systems?
Markesinis believes that civil and common law
systems are moving closer together.
He thinks that civil lawyers are increasingly
relying on case law and English judges are
relying more on scholarship and foreign law.
He thinks this has been brought about by
human rights treaties and the European
Union.
IMPORTANT THEME: How different are
the civil and common law traditions?
Are they converging?
Is it acceptable for American
judges to be monolingual?
Markesinis (who speaks excellent
German, French, Italian, English and
Greek) believes that English judges
should learn languages so that they
effectively take a comparative approach
to the legal problems they confront.
What do you think?