Applied Comparative Law: Theory And Practice

Applied comparative law is a discipline that involves the study of legal systems, their similarities and differences, and how they combine into a system. It is a modern concept, first used in the 19th century, that involves the study of different legal systems or families in existence in the world, including common law, civil law, socialist law, Canon law, Jewish Law, Islamic law, Hindu law, and Chinese law. Comparative law is different from general jurisprudence and from public and private international law, but it helps inform all of these areas. The importance of comparative law has increased in the present age of internationalism, economic globalization, and democratization.

The study of legal systems

Comparative law is a broad academic discipline that encompasses a range of specific areas of study, including comparative constitutional law, comparative administrative law, comparative civil law, comparative commercial law, and comparative criminal law. These studies can take the form of micro- or macro-comparative legal analysis, involving detailed comparisons of two countries or broad-ranging studies of several countries, respectively. For example, a microcomparative study might analyse the civil law of Quebec and the common law of Ontario, while a macrocomparative study might examine the differences between common-law, Roman, and socialist legal systems.

The purposes of comparative law are threefold: firstly, to attain a deeper knowledge of the legal systems in effect; secondly, to perfect the legal systems in effect; and thirdly, to contribute to the unification of legal systems on a smaller or larger scale. Comparative law is distinct from general jurisprudence (legal theory) and public and private international law, but it helps inform these areas by providing insights into the workings of different legal systems.

The origins of modern comparative law can be traced back to Gottfried Wilhelm Leibniz's 1667 book "Nova Methodus Discendae Docendaeque Iurisprudentiae" (New Methods of Studying and Teaching Jurisprudence), in which he introduced the idea of classifying legal systems into several families. However, the true expansion of comparative law was hindered by various obstacles, including the parochialism of social groups and contempt for foreign legal systems. It was not until the 19th century that comparative law was recognised as a separate branch of legal science, with the establishment of the first university course on the subject at the University of Oxford in 1869.

The study of legal families

The concept of legal families is useful for comparative lawyers as it helps them arrange the mass of legal systems in a persuasive order and present them in a comprehensible way. It is also needed to define a mixed legal system, which is characterised by the challenge of assigning it to only one existing legal family. If a legal system is proven to be 'representative' of a certain legal family, it may be more efficient to focus on the study of that system and treat its results as characteristic of the legal family, unless there is proof to the contrary.

Different legal systems can only be treated as belonging to the same legal family if they are sufficiently 'similar', 'related', 'affiliated', or 'close' to each other. However, there is no uniform solution to this problem, as comparative lawyers have different special purposes and particular theses to prove.

In 1961, Konrad Zweigert proposed a number of factors that, when taken together, constitute the specific 'style' of a legal system. These include its historical background and development, its predominant and characteristic mode of thought in legal matters, especially distinctive legal institutions, the kind of sources of European private law it acknowledges and the way it handles them, and ideological factors. Zweigert's proposal led to the identification of several legal families, including the common law family, the civil law family (which can be further subdivided into the Romanistic, German, and Scandinavian legal families), the socialist legal systems, Islamic law, Hindu law, and the family of Far Eastern legal systems.

Other scholars have proposed different methodologies for classifying legal systems into families. For example, René David suggested classifying legal systems according to the different ideologies that inspire them, resulting in five groups or families: Western laws (further divided into civil law and common law subgroups), the French group, the Scandinavian group, the English group, and the Islamic group. H. Patrick Glenn, on the other hand, proposed differentiating legal systems based on major legal traditions rather than legal families.

While the concept of legal families is a useful tool for comparative lawyers, it has received some criticism. One critique is that the classical doctrine tends to focus on the 'law in the books' rather than the 'law in action', relying too heavily on a legal system's legislation, case law, legal institutions, and taxonomic peculiarities. Another criticism is that the criteria used for classification are not fixed and may vary depending on the author's perspective and the subject matter, method, or purpose of their comparative endeavour.

The study of foreign legal systems

Foreign legal systems can be studied through various methods, including legal research, comparative analysis, and interdisciplinary approaches. This involves examining primary sources such as statutes, case law, and legal codes, as well as secondary sources like scholarly articles and books. Comparative law scholars may also draw on fields such as history, sociology, and political science to understand the broader cultural, economic, and political contexts that influence the development and operation of legal systems.

Furthermore, the study of foreign legal systems can inform legal reforms and improvements within a country. By examining the strengths and weaknesses of different legal approaches, policymakers and legal experts can identify best practices and innovative solutions to complex legal challenges. This comparative approach can contribute to the development of more effective, just, and responsive legal institutions.

The study of legal systems in effect

Comparative law can be traced back to Gottfried Wilhelm Leibniz's 1667 book, "Nova Methodus Discendae Docendaeque Iurisprudentiae" (New Methods of Studying and Teaching Jurisprudence), in which he introduced the idea of classifying legal systems into several families. However, the term "comparative law" first appeared in the 19th century, when it became clear that the comparison of legal institutions deserved a systematic approach to increase understanding of foreign cultures and further legal progress.

There are two types of research in comparative law: microcomparison and macrocomparison. Microcomparison involves analyzing the laws belonging to the same legal family and deciding whether innovations in one country's system would be valuable if introduced elsewhere. On the other hand, macrocomparison investigates systems that differ significantly to gain insight into foreign institutions and thought processes.

The study of legal theory

Applied comparative law is the study of the similarities and differences between the legal systems of different countries. It involves a description and analysis of foreign legal systems, even where no explicit comparison is made. The discipline can be traced back to 1667 and Gottfried Wilhelm Leibniz's book, 'Nova Methodus Discendae Docendaeque Iurisprudentiae' (New Methods of Studying and Teaching Jurisprudence).

Comparative law is a distinct academic discipline from general jurisprudence, or legal theory. However, it can contribute to and inform legal theory by creating categories and concepts of general application. Comparative law can also provide insights into the question of legal transplants, or the transplantation of law and legal institutions from one system to another. The concept of legal transplants was first introduced by Alan Watson, one of the world's leading legal scholars in comparative law.

Gunther Teubner expanded on the idea of legal transplants by introducing the concept of legal irritation. This theory suggests that rather than smoothly integrating into a domestic legal system, a foreign rule can disrupt established norms and societal arrangements. This disruption can spark an evolution where the external rule's meaning is redefined, and significant transformations within the internal context are triggered.

Lasse Schuldt added to this theory by noting that irritation does not occur spontaneously but requires institutional drivers. Comparative law can also be useful for the sociology of law and law and economics, and vice versa. The study of various legal systems through a comparative lens can show how different legal regulations for the same problem function in practice.

Comparative law can be further broken down into micro- and macro-comparative legal analysis. Micro-comparative analysis involves detailed comparisons of two countries, while macro-comparative analysis involves broad-ranging studies of several countries. For example, a micro-comparative analysis might compare the civil law system of Quebec with the common law system of Ontario.

The purposes of comparative law are threefold: to attain a deeper knowledge of the legal systems in effect, to perfect the legal systems in effect, and to contribute to a unification of legal systems on a smaller or larger scale.

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