“The reception of foreign institution is not a matter of nationality, but of usefulness and need. No one bothers to fetch a thing from afar when he has one as good or better at home but only a fool would refuse quinine just because it did not grow in his back garden”.
(Geist des römischen Rechts, Part I (9th edn. 1955 )8 f.)
WHAT IS COMPARATIVE LAW?Is it a body of rules and principles?
Is it a science?
Is it a body of binding rules or legislation?
Comparative Law is not a body of rules and principles.
It is a method, a way of looking at legal problems, legal institutions, and legal systems.
It means comparing two different legal systems with the purpose of finding a solution.
It is not a body of bindingnorms, or a distinct branch of law, in the sense in which we speak of “Torts Law, Criminal law, Civil Law, Labor Law, Administrative Law”, etc.
UNDERSTANDING COMPARATIVE LAW:
This means comparing the spirit and style of different legal systems, the methods of thought and procedure. Comparative Lawyers use:
MACROCOMPARISON (deductive method):
Instead of concentrating on individualconcrete problems and their solutions, they study the methods of handling legal materials, procedures for solving a dispute, or the roles of those engaged in the law.
It means to compare the spirit and style of different legal systems and the methods of thought and the procedures they use.
MICROCOMPARISON (inductive method):
It involves comparing specific legal institutions or problems, itmeans comparing the rules used to solve actual problems or conflicts of interest in two different legal systems. This means to compare specific legal institution or problem.
WHEN COMPARING TWO DIFFERENT LEGAL SYSTEMS:
▪ Word it as a question
▪ Compare and contrast (do a critical analysis)
▪ Use inductive or deductive methods
▪ Be objective (leavepreconceptions behind)
▪ Different legal systems may have different solutions to similar problems.
▪ Analyze social needs behind problems and solutions.
▪ Consider differences in culture, economy, and language, among others.
The neighboring legal areas of Comparative Law:
Comparative Law and Conflict of Laws
Conflict of laws addresses the jurisdiction rulesthat determine which specific law will applied to solve a dispute.
On the other hand, Comparative Law analyzes several legal aspects, issues, laws or institutions at the same time; looking for similarities and differences. This analysis may lead to a solution but the principal aim is to learn.
Comparative Law and Public International Law.
- It is essentially asupranational and global system of law.
Yet, comparative law is essential to the understanding of ‘the general principles of recognized by civilized nations” which are laid down as being one of the sources of Public International law.
“CHAPTER II - COMPETENCE OF THE COURT. Art. 38
The Court, shall apply:
a. international conventions establishing rules expresslyrecognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
Conclusion: The aims of comparative law are to discover which solution of a problem is best.
Comparative Law and Legal History:
- While Comparative Law studies legal systems coexist inspace, Legal history studies systems in different times.
- Legal historians are bound to use the comparative method by making comparisons while studying the chosen topic.
For example: Roman Law v. Common Law.
We can conclude that:
Legal History contributes to a critical evaluation of the law.
PRACTICAL BENEFITS OF COMPARATIVE LAW’:
I. Comparative Law as...