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Definition of Comparative Law
What is comparative law? The answer to this seemingly simple
question has been attempted by more than one generation of
comparative lawyers. In truth, the answer can not be absolutely straightforward.
Comparative law is not, obviously, a school of the modern
general theory of law in the sense in which we speak of, for example,
the neo-Kantian or existential philosophy of law. The socio-political,
practical-applied, scientific-theoretical, and instructional-pedagogical
roles of comparative law in the legal life of various countries shows
that it grew as an integral movement and formed as an autonomous
scientific orientation on legal research.
The term “comparative law” has a triple meaning: a method, a
science, and an instructional discipline.
Comparative law as a method is one of the important scientific
means of studying legal phenomena. Thanks to the application of the
comparative method, it becomes possible to elicit the general, the special,
and the unique in the legal systems of the modern day.
Comparative law as a science is the aggregate of scientific
knowledge about modern legal systems represented materially by the
multiplicity of books, pamphlets, articles, and scholarly papers.
Comparative law as an instructional discipline is the subject
of teaching in higher educational institutions.
In this work comparative law is regarded primarily as a science
and as an instructional discipline. Questions of the use of the comparative
method to resolve specific scientific-practical legal problems, that is,
“comparative legislation”, and the tasks and objects of the use of the
comparative method, that is, the theory of the comparative method, a re
not considered in this study. When using the term “comparative law”,
we speak here of the science of comparative law, the integrated and
comparative study of modern legal systems, and also about (lie
Instructional discipline.
Comparative law as a science and as a course of study in each
country has its specific features. Various doctrinal approaches of
scholars exist in various countries to the subject of comparative law,
and there often are several schools and orientations even within (lie
same country.
The very name “comparative law” has semantic nuances. The
term “comparative” is used in the traditional meaning but it is not the
same in the various languages: the French speak of “droid compare".;
the English and the Americans, of “comparative law”; the Germans, of
“Rechtsvergleichung”, and so on. There are considerable divergences
to be observed not only among the various languages, but even within a
single language: comparative law, law comparison, comparative
jurisprudence; Rechtsvergleichung, vergleichende Rechtslehre,
vergleichcnde Rechtswissenschaft. The term most widely used in most
countries of the world is “comparative law”.
The detractors of comparative law often have used the argil 11 lei 11
that such a law, as a system of norms, does not exist. But no one has
ever asserted that comparative law is a branch of positive law. “Any
doubts relative to comparative law disappear”, stressed (lie English
comparatist, H. Gutteridgc, “if one recognizes that this expression means
national legal systems which incorporated the historical specific features
of the development of each of the Western countries.
The position of the German comparativist, L.-J. Constantinescu, is
typical. Citing the views of the aforesaid two orientations, he wrote:
“One can find arguments in support of both views. Everything depends
on how they define law and its place in science. If it is reduced to a
mental operation comparing similar objects, it seems that the roots of
comparative law do indeed go back to the remote past. And, on the contrary,
if one understands it to be activity for the purpose of the consistent
approximation of legal systems, one must concur with Pollock”.
Thus it historically happened that unlike, for example, the general
theory of law or the philosophy of law, comparative law was formed as
an autonomous scientific discipline only during the second half of the
nineteenth century or, more precisely, in the last quarter of that century.
The origin and formalization of comparative law as an autonomous
branch of legal science is inseparable from the vast complex of sociopolitical
changes which accompanied the development of national legal
systems. This relatively late rise of comparative law is to be explained
by two factors, the rather obvious link between which individual
comparativists either do not recognize or in any event do not emphasize
specially. One factor is of a social nature, and the other is linked with
the inner logic of the development of legal science. This second factor
is often advanced to the forefront in comparativist writings. An example
is the position of Constantinescu, the author of one of the most detailed
surveys of the history of the origin and development of comparative
law. An analogous view is held by other major figures of legal
comparativistics, such as Gutteridge, David, Rheinstein, and others.
The need for comparative law to a certain extent derived from
the inner logic of the development of the legal sciences. In the early
nineteenth century national unilateralism and limitedness became
increasingly impossible. Legal development had reached a high level
and national legal systems had been formed; interest could not fail to
increase in the study of foreign legislation, and in this connection two
trends were visible: on one hand, the commonality and similarity of
national legislation was stressed, and on the other, greater attention
was devoted to the differences between it.
The works which appeared early in the nineteenth century
endeavored to conceptualize legal phenomena on the historical comparative
plane and prepared a favorable foundation on which the
science of comparative law later took root.
Comparative law also received new impulses from other sciences
which at the time had recourse to comparative analysis. This affected
even the natural sciences: comparative anatomy, comparative physiology,
and later, comparative linguistics.' All the research of these science's
developed simultaneously with comparative law and facilitated its coming
into being.
At the same time, the reasons for the solitary and intensive
development of comparative law into an autonomous discipline should
be sought above all in its practical aims and not in methodological
argumentation. The first steps along the path of comparative law (jus
as the beginning of any scientific knowledge) were made, as Sir
Frederick Pollock, the English jurist, said, for a purely practical purpose,
Historical reality itself exerted a decisive influence on the origins
of comparative law, that is, the internationalization of the economy, I lie
development of international relations, trade links, an increase of the
export of capital and the expansion of colonialism, which led to legal
science being forced to transcend the framework of national law and
national legislation.
These social factors placed comparative law on a practical
foundation. The purely theoretical approach was combined with a
practical-applied one. Therefore the Russian scholar, F. V. Taranovskii,
had every reason to write that “comparative law is the most important
legacy which the nineteenth century left to legal science. Reasons of a
dual nature led to the renaissance and facilitated the development in
the nineteenth century of this new orientation of legal thought
theoretical and practical”.
One should note in this connection the institutionalization of
comparative legal research, the growing separation of comparative law
from the history of law and from the theory and philosophy of law.
Scholarly institutions emerged, such as the Society of Comparative
Legislation in France, founded in 1869 for practical purposes; the Society
of Comparative Legislation in England, created in 1898, the International
Association of Comparative Law and Science of the National Economy,
established at Berlin in 1899, and others.
Institutionalization was expressed further in the creation and
publication of specialized journals, the regular convocation of international
congresses, and the like. Considerations of a practical nature led in
certain countries (France, Germany, England, the United States) to
incorporating comparative law into the programme of legal education,
the basis of which comprised research into foreign legal systems and
the formation of special chairs of comparativistic nature.
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