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Significance of Comparative Law
Great attention is devoted in legal science to comparative law,
And although disputes and discussions concerning the status of l hr.
scientific orientation and the group of problems within its jurisdiction
continue to this day, it is now generally recognised that comparative
studies of law are important for the future development of legal science
Comparative legal research in combination with traditional
historical, normative, and sociological views of law enable:
first, the phenomena of legal reality to be studied which previously
were not encompassed by jurisprudence and to depart from the national
frameworks of a legal system;
second, to examine from a special vantage point a number of
traditional problems of legal science taking into account the I rends in
the development of law in the modern world.
For legal science devoted principally to national law the use of
comparative law is especially important since comparative law helps to
establish how the same legal problem is resolved in various countries,
enlarges the horizons of legal research, and enables both the positive
and the negative foreign legal experience to be taken into account.
Without taking into account the data of comparative law, general
theoretical conclusions these days can not pretend to have a universal
and general character. On the other hand, certain concepts of legal
science need clarification by taking into account foreign legal experience
and world legal thought.
The growing trend towards the interdependence of States of the
world community is characteristic of the modem epoch. Modern
civilisations can not close themselves off and reject contacts and links,
and consequently, a cognition of one another. A socially and politically
diverse world, but simultaneously an interlinked and to a great extent
integral world, is being formed. This unity and international mutual
dependence with the inevitable mutual approximation underlies the
contrast and comparison of modern legal systems. Comparative law is
called upon to show all of this diversity in its legal aspects, thereby
stressing the priority of universal human values in the development of
law in civilised societies.
The need for international cooperation and modern global
problems (scientific-technical progress, ecology, demography, and others)
require unswerving attention to the principal legal systems of the world
and a new view of existing legal problems. On this plane the role of
comparative law is growing as a means of studying and assessing legal
spheres in which this cooperation is proceeding. Broad opportunities
have opened to use comparative law for the purposes of international
cooperation and the formation of a single world rule-of-law State.
Comparative law is endeavouring to hold in view all of the principal
modern legal systems. In so doing the equality of legal systems on the
scientific plane arises, of their theoretical study and classification.
Recognition of the parallel existence of various legal systems creates a
favourable foundation for the fruitful cooperation of jurists from various
countries, irrespective of whether their socio-political systems and legal
structures differ. The legal comparatist faces the task by means of the
objective study and contrast of existing legal systems of finding the
best legal solutions for specific social problems in a determined socioeconomic,
political, and cultural context.
Comparative law is multi-dimensional. First, it is concerned with
general theoretical conceptions of law in general (and they do not
coincide with the representatives of various legal systems) and
demonstrate the pluralism of legal conceptions and understandings of
law. Second, problems are analyzed within the framework of
comparative law not only at the level of the general theory of law, but
also of the branch legal sciences; in this connection comparative legal
studies acquire an interdisciplinary legal character. Third, the
consideration of the problems of comparative law has a profound legal
and socio-political significance insofar as they are closely linked with
ensuring the legal foundations for the unfolding of democracy,
strengthening of legality, and effectuation of the justness of justice.
Comparative law is an integrated orientation of legal scientific
research having scientific-theoretical and practical applied importance.
It is the most adequate instrument for the cognition of the principal
trends of legal development in the modern epoch. The level of
development achieved does not fully satisfy the queries of legal science
and the requirements of legal practice, offers insufficient material for
fundamental theoretical conclusions, and lags behind the requirements
advanced by reforms of the political and legal systems. There are a
number of reasons for this.
First. Many legal scholars in the Soviet period, when conducting
specialized studies of the problems of the theory and practice of
comparative law, pursued an unequivocal critical purpose which was
realised principally on the level of “unmasking” bourgeois law through
contrastive comparison. To be sure, under conditions of rivalry and
ideological confrontation of two opposed socio-political systems such a
critical analysis was to a certain extent justified; however, it should not
have been reduced to a tendentious selection of materials, the
withholding of individual facts, and unequivocal negative assessments.
Just as any other scientific analysis, comparative research of the
legal reality of foreign countries is called upon to give an accurate
picture and not to squeeze complex, contradictory, dynamic processes
into tight, previously conceived ideological schemes formed in the past.
Second. Specialized studies of the problems of one’s own national
legal system were not accompanied by a constructive legal analysis of
foreign legal institutions. In its day the “campaign against
cosmopolitanism” played an especially negative role in cutting back
studies and the comparative analysis of foreign State and law in all of
I heir diversity; at the end of the 1940s such research was deemed to be
a “manifestation of a low genuflection towards bourgeois culture”. As
a result, these two inextricably linked orientations of legal research
virtually never crossed when resolving internal problems of national
law.
I u the meantime life showed the need to develop comparative
law in its modern understanding: to study foreign law specially, showing both
its common laws of societal development and features and the
specific properties of the principal legal families and individual national
legal systems; to consider foreign forms with the assistance of the
comparative method and the experience of resolving specific legal
problems put by politico-legal reform on the agenda, especially in
connection with the task of forming a democratic rule-of-law State and
a just civil society.
In recent decades legal comparativistics has been significantly
enriched in the world: the rapid tempo in the growth of the number and
thematic diversity of comparative legal research; the creation of new
specialized institutions, the number of publications on comparative law.
Comparative law is especially fruitful both in the domain of improving
national legislation and in the cause of working out, adopting, and unifying
international legal acts, and also in the teaching of legal disciplines, as
experience has accumulated with the generalization of empirical material
and the techniques and methodologies of comparative law studies.
5. Comparative Law as Science and Instructional Discipline
Comparative law is in a certain sense a structured conceptual
system of legal knowledge, systematized notions linked with one another
somehow concerning the principal modem legal systems and the theories
of the application of the comparative method both in the scientific cognitive
and in the practical applied aspects. It is understandable that
the balance of each of these aspects and each of the problems of
comparative law is various in different countries. Some problems are
at the forefront and intensively worked out in some social and cognitive
conditions, whereas others are pursued under difference circumstances.
Comparative law is not so much a chronological, temporal
measure as a spatial one. This is conditioned by the fact that its
development has occurred and proceeds within the limits of rather
precisely demarcated culturo-historical regions and simultaneously
conditions of a significant expansion of the geography of modern legal
comparativistics.
Comparativist conceptions of the past act with respect to modern
comparative law as the historical foundation of its concepts and
doctrines, its structure, and its language. Passing beforehand through
respective cognitive and social filters, they naturally become part o f
the fabric of modern legal comparativistics. It is entirely just to say in
this connection that the history of comparative law represents an actual
legal theory today but taken from the standpoint of its genesis and
development.
The history of comparative law plays the role not only of a living
memory and methodological laboratory of modem legal comparativistics.
It also is a type of test site in which legal concepts are tested, a
multiplicity of types of legal understandings of various scientific
orientations and schools. A comprehensive, careful analysis and
profound generalisation of the peculiarities, trends, and laws of societal
development of the historical development of comparativistic thought
is essential in order to forecast the ways and means of the further
development and improvement of modem theoretical knowledge about
the legal map of the world. Recourse to the history of comparative law
often proves to be most effective means to find the key to resolve an
entire complex of problems of modern legal science.
Without actively working out the history of comparativistics
conceptions, without mastering the materials thereof, without an
assessment of that learned, one can not elicit the group of basic questions
well-foundedly, the study of which constitutes the subject of modern
comparative law. Such a working out facilitates the precise discovery
of key points for the development of legal comparativistics, facilitates
uncovering its links with various legal disciplines and orientations of
legal ideology, promotes the realization of all of its theoretical-cognitive,
ideological, and practical applied possibilities.
Today comparative law is more differentiated and more profound
than previously and is thinking through the complex processes occurring
on the legal map of the world. In addition, the structure of modern legal
comparativistics is complex; in it one may single out, in particular, the
conceptual nucleus thereof, the significance reflecting primarily specific
historical peculiarities of the object being studied, and personal initiatives
and cognitive propositions of its leading representatives.
The presence in comparative law, together with the transient
problems and transient knowledge of a certain nucleus of “eternal
problems” and relatively stable scientific language corresponding to
them, ensure not only the stability and succession of its conceptual and
categorization apparatus, but also the status of an autonomous and
developing branch of legal knowledge.
As criteria for determining the character of comparative law as
a confirmed autonomous branch of scientific legal knowledge it is
necessary to accept the following factors:
the intensive growth of comparative legal research being
conducted and of scholarly publications;
- the emergence of systematized and survey works, including
retrospective bibliographies, anthologies, international and
bilateral colloquiums and conferences on the most urgent
problems;
- the publication of specialist periodical literature with permanent
methodological sections devoted to comparative law;
- the creation of systems for the training of comparative
specialists at the faculties of universities or in other scholarly
centres and the publication of instructional syllabi and
manuals;
- the formation of national and international scientific research
centres, schools, and orientations.
The development of comparative law as a scientific orientation,
of course, has more than “external” characteristics. The specific
distinctive features of the subject of research which underlie disciplinary
work and establish the significance and autonomy of this branch of
legal knowledge and its status within the system of legal sciences as a
whole should be regarded as a constructive indicator determining the
origin of this autonomous scientific discipline. In other words, the origins
and development of comparative law are linked with the specific
approach and subject ensuring the general recognition thereof.
Comparative law shows the relativity of existing national law. It
enables one to go beyond the limits of a simple definition of a written
norm as the sole expression of law operating on a determined State
territory, or as the sole purpose for the use of a determined legal
technique, and to make certain adjustments in our concepts relative to
I lie place and role of each national legal system on the legal map of the
world.
Comparative law enables the legal policy of various States to be
elicited and comprehended. It helps us to see and contrast priority
legislative trends in various countries or, more precisely, the principal
orientations of legislative reforms in the international context. Because
the use of comparative law data enable the accumulated foreign
experience to be borrowed in order to satisfy the requirements of legal
development, one may say that comparative law leads to forecasting
I he prospects for legislative development.
The legislator may use comparative legal materials when resolving
certain cardinal complex problems of legislative policy; when resolving
individual problems by means of working out acts of national legislation;
when improving legislative technique.
It is now extremely important to transcend the ideological
schemes, to seek and find everything that is best in the law and State of
all epochs (not excluding, of course, the present) which may serve the
cause of law reform. Comparative legal research, on one hand, helps
to disclose everything that is useful, that has justified itself abroad when
resolving basic problems, to avoid unnecessary labour to “reinvent the
bicycle”, and, on the other hand, makes it possible to take into account
the negative aspects of foreign experience and the ineffectiveness of
particular legal decisions. Especially material is the circumstance that
when creating a new legal act the national legislator turns to existing
norms of foreign law, that is, to those with respect to which practical
experience has accumulated. We have in view, of course, not to suggest
to the legislator finished samples and models taken from abroad, but
the study of foreign legal experience, both positive and negative. Such
a study does not have the purpose solely to borrow or reject, although
such a result is not precluded. It enlarges the worldview of science and
makes possible a more expansive approach to the problems.
The teaching of comparative law - on the plane of introducing
the principal modern legal systems for study or on the place of the
comparative study of branches and institutions of law - is an important
panorama for the development of modern legal science and legal
education.
Their task, together with the study of national law, is also to
investigate the global laws of societal development and the
developmental trends of law in the modern era. Therefore legal science
should rest on serious theoretical propositions, the object of which is
other, foreign, legal systems. The importance of the analysis of the
experience of world development, including the study of processes
emanating in modern society, arises from the requirements of political
and legal reforms.
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