Comparative Law Is Not Just One Legal Method, But Collection of Different Approaches

Study of differences and similarities between the laws of different countries is termed as Comparative Law. More specifically, study of the existed different legal systems in the world, such as Civil law, Islamic law, Common law, and Asian law, etc are involved in the comparative approach of a legal study. Analyzing and description of foreign legal systems are also included in this study. In this present age of economic globalization, internationalism, and democratization, the importance of Comparative Law has increase enormously. [1]

Studying separate legal systems academically, analyzing its constitutive elements, and evaluating the difference between these various systems and the grounds on which these components combine into a system is Comparative Law. Separate branches of comparative law have been developed through several disciplines, for example, comparative administrative law, comparative civil law, comparative constitutional law, comparative criminal law, and comparative commercial law.

            When two different countries are compared in detail or they are analyzed through broad-ranging studies, this can be termed as macro or micro comparative legal psychoanalysis. Interpretation and organization of the law of private relations in different systems or countries can be showed by comparative civil law studies.

            Attainments of deeper knowledge of the legal systems in effect, and to perfect these systems are some of the principal purposes of comparative law today. There seems to be a difference in the comparative law from the fields of general legal theories and international law, comprising private and public international law. In spite of these dissimilarities, all of these areas of normativity are informed and helped by the comparative law studies.

For instance, international legal institutions can be helped by the comparative law studies, for example, those of the United Nations System that scrutinizes the laws of different countries regarding their accord responsibilities. At the time of developing an approach to interpretation in a conflicts analysis, comparative law will be applicable to private international law. By creating categories and concepts of general application, this legal study approach may also contribute to legal theory. Insights into the problems of transplanting of law and legal institutions from one system to another can be also be provided by the Comparative Law approach.

            The comparative law can also be very useful to the sociology of law. The reason of the same problem function of different legal regulations in various legal systems can be given out through the comparative studies. Comparative law plays a vital role in the communication between legal systems. Basis for the production of bilingual dictionaries may also be provided by this law, where it comprises of all the necessary information, which would be useful to make legal communication across borders successful.

            In the light of the aforementioned information and by what is commenced under the banner of comparative law, there are some values, which can preponderate, more or less unreservedly in its discussion. Some of those beliefs are defined like transnational legal system or the unification of various legal systems with the help of science and studies on a global scale, where individual cases are resolved before the courts with the support of comparative law.

            All these abovementioned beliefs are termed as inadequate by Pfersmann. In his view, they proceed from “the illusion of a legislator-jurist, whether through projection of an ideal order or through claiming capacity to produce one. The involvement of the naturalistic sophism which results in the induction of the jurist’s habitual fantasy or believing oneself to be a producer of ideal rules in as much as one is an expert on positive rules”.[2] The problem that is identified by Pfersmann, he termed it as ontological and epistemological, and the source is tried to be located in the positive legal order’s nature.

            According to one of the writers, the delusion of a legislator-jurist seems to be an illusion from a level as to achievement and a false impression as to capacity. However, in my opinion, there may not be a complete misapprehension, as a jurist can make law or formulate a legal doctrine. The doctrine that is written by comparators can be taken as transnational positive law, if the legal doctrine may rise and taken as a primary source; simultaneously, when a positive legal order is understood as a source.

            In this case, it would be a doubly faulty hallucination. Firstly, the created standards may not be legal. Then these norms might not fit into the cultural peculiarities between the positive and the natural, neither attributing compulsion through a positive legal order. Secondly, there would not be a specific comparative character of the customs, even if they were legal.

            Consequently, one cannot term the comparative law as a law body. There may not be a comparative legal order, but a comparative law as a discipline. Use of comparative methods at the time of comparing, not only a single legal order, is consisted in it. Therefore, the norms are not produced with the act of comparison. At the most, the production of norms is contributed by it within an accessible international or nationwide legal order.

            In order to assume the causes of creating the previously mentioned illusion that comparative law is a body of law, we know that a proposed lawful norm is not confused by anyone with an actual one, as the moments of legitimate implementation, articulating of judgment, and legislative ratification is known by everyone. It would not be reasonable to assume that a divine will has been seen by any comparator, which may have given some technical details, resulting in the most constructive legal comparison. Except the evolutionist ideology and at the time of foundation of the comparative law discipline that was often tagged as Social Darwinism. The almost forgotten Spencer was its high priest, “whose combination of philosophy, religion, and unified science included a doctrine of natural law”.[3]

            If we assume, the comparative law created when the content of natural law may have been projected as an idealization of positive legal order, so that the comparator’s statement may termed as a statement of the law as natural, when stating the ideal positive law.

            Comparative Law’s issues, which appear, are always in the construction of general theory of law, as the essential constituent of simplification is the comparison. In two ways, the universal theorization of constructive legal orders is possible, either consumption or through recognition. While understanding these ways, the consumption could be within an elevated lawful order, i-e natural law’s order, or the international legal order from the point of view of a monist. Secondly, the recognition could be of alterity and ultimately, regarding closure, where in a theoretical framework, the recognition takes place, which is independent of the matter of its subject.

            In result, laws of general hypothesis and problems regarding the individuality of comparative law are pertinent communally, whether through analogy between the two disciplines or through the legal assessment exercise, which is as mentioned previously, a vital element in the generalization.

            In this light, the curricular standing of comparative law may be more obvious, if the construction of minor servants of the home-authorized order is devoted by the said curriculum. It can become more applicable, if the teachers encourage students for the adoption of a reform of law perception or assuming them as a judge or legislator in near future.

            In addition, general theory’s devoted students of an ordinary regulation arrangement within a prospectus may be introduced to a Romanist mainstream of western legal tradition, where the general theory refers the most.

            For several decades, since the dawn of the 20th century, the comparative law has been a subject of discussion and scholars have tried to scrutinize the matter in everyway, but there still seems to be some vagueness regarding its major description in the juridical sciences these days. Some scholars have assumed this study as an educational discipline, while some regarded it as a scientific method.

            As discussed earlier, we may term the comparative law as the study of different legal systems. While applying the comparative method, the revelation of general and the special has become possible in the today’s world of legal systems. Pollock, Gutteridge, David, Patterson, De Cruz, Grossfeld, and Szabo are some of the adherent scientists of this stream.

            Furthermore, from 1950s to the 20th century, the comparators have been inclined in an irresistible majority, in an attempt to qualm the existence of comparative law science. In this process, some considered it as a distinct science, while others deemed it as a variety of investigating methods or jurisprudence, rather than judging it as only one approach.[4]&[5]

            However, certain discrepancies are always there about the theory of comparative methods regarding its purpose and subject matter. A process should be represented by this comparison. “H. Gutteridge, for example, devoted an entire of his book on comparative law to the comparison process”.[6]

            Various obstacles regarding the comparison have been discussed by the aforementioned writer in his book. Identifying sources and comparison objects have also been included and approaches have been proposed, in order to surmount these issues and problems. Nevertheless, possibilities of determining the comparison process character are very difficult.

            “In this connection, the well-known German comparators K. Zweigert and H. Kotz recognize that the process of comparison represents the most complicated aspect of comparative law and that is deemed rather problematic to establish any rigid rules regulating this process”.[7] “The point of view propounded by H. Gutteridge was further elaborated in scientific works of R. David, the founder of the theory of legal systems”.[8]

            Comparative law is a method of studying different legal systems and nothing else, regarded by R. David. In the USSR, the Central Europe and rest of the East, the theory was very dominant in the second half of the 20th century. However, the comparative method’s role in developing peculiar and original development of socialist jurisprudence was also highlighted by some of the scholars, like, Szabo, Z. Peteri, and W. Knapp.

            The comparative law was also regarded as a tool for a better understanding of legal data and as a method of legal science, playing a vital role in the legal norms interpretation related to different legal systems, In addition to the adaptation of one socio-legal system with one another.

            Enough hypothetical and procedural reputation is not present in the comparative law to claim its survival as an important branch of legal science. However, a vivid refutation was served by the college and university readers, casebooks, and textbooks published recently in Russia for the better understanding of comparative law approach.

In the second half of the 20th century, global cooperation’s concentrated processes with its methodical and technical development, political, economic, and cultural changes in different societies, the European countries amalgamation in the European Union, the decision of making comparative law, an essential module of academic curriculum of law schools, colleges and universities in UK & USA, resulted in the revaluation and reconstruction of comparative law as a legal science method.

“A. Saidov holds that there are autonomous concepts: the 'comparative method' and 'comparative jurisprudence'. If the first definition represents a means of cognition of socio-legal phenomena, the latter is a scientific field aiming at studying contemporary legal systems”.[9]

Some scholars while explaining various legal studies, they believe comparative law as a starting point of all the other comparative legal researches. “They stress that function is the starting point and basis of all comparative law and that different legal systems can be compared only if they solve the same factual problem, satisfying the requirement in adequate legal regulation”.[10], [11] & [12]

Basic specialized method of the research for the legal phenomena is deemed as comparative method is applied in comparative law. Analysis and resolution of different and new problems and issues in common jurisprudence resulted in the materialization of comparative law as a science. In this connection, the previously mentioned writer supports the definition of comparative law and says that it is not necessary to discuss about the institutional recognition of a new discipline, but rather about the acknowledgment of a number of new problems, which have appeared in the legal science.[13]

It would be very interesting if the argument of Nersesyants were noted down, as he disagree the comparative law method, which represents common method legally that was modified to the legal phenomenon perception of different concepts and comparison on the basis of expression of different forms related to the formal equality principle.[14]

In another viewpoint, the synthesis of comparative method with legal philosophy was the reason of origination of the comparative jurisprudence science. If assume in a different way, a philosophical direction with a representation of comparative study of comparative ideas, which constitutes the legal systems’ institutional basis is comparative jurisprudence.

In this case, the comparative jurisprudence’s role constructs the pillars of legal philosophy methodologically and follows the informational function.[15] Since the study of the relations of various legal systems is comparative jurisprudence, the character and reasons for the differences and disparities can be revealed by the legal systems’ theoretical and historical studies.[16]

Some comparators have also reached to an original compromise by stating both, a method of legal science and scientific discipline independently as the comparative law. In order to exemplify the first state, we can take the example of comparative investigations in branches of law, where the tool for collecting information on legal systems is comparative method. Secondly, in an attempt to illustrate the later one, general theory of law is put together with the comparative law, and therefore, it would be more understandable to term the matter as a science having a wide field of knowledge and information, rather than just a single method.

However, it is still very difficult to state regulations regarding the eligibility of being a science and group of different approaches, or a solitary method. Therefore, “a compromise may be a thesis about comparative law as a group of methods that composes in an aggregate a methodological basis of comparative research in any branch of law”.[17] & [18]

At the time of legal researches, notional categories that were elaborated by legal theorists are applied by the comparators. On the other hand, a substantive theoretical evaluation is required by the comparative investigations results. However, the peculiarities of different lawful systems and difficulties can hardly be encompassed by the theoretical jurisprudence categories, which are required at the time of determining facts, valid sources, and juridical systematization, etc.

Nowadays, other trends have also been noticed in the comparative law dialogues, for example, comparative law and sociology, comparative law and culture, comparative law and religion, and some other fields like economics, commerce, and literature, etc. Such triumphant methodical amalgamation is welcomed by some of the researchers, while the comparative law’s individuality is deemed more important by other intellectuals, rather than relating in a group of different approaches. They said that it must retain a separateness and distinctiveness.[19]

“The process of comparison does not itself create legal norms; it only contributes to the creation of legal norms within the framework of one or more legal system”.[20] Similarly, many academics are arguing the existence of comparative law as a legal science, as an educational discipline is exclusively represented by this so-called law, and is taught in the law schools and colleges.

However, nowadays the European Court of Human rights and the courts of member countries of European Union during the judicial proceedings course are analyzing the judicial decisions and member states’ national legislation with the help of comparative practice, the fact might be counter by this thesis. Thus, an evolutionary practical application role of comparative law during the process of European integration will be confirmed by the hypothesis mentioned in this argument.

Irrespective of the way the comparative law is perceived by the scholars and intellectuals, it has become a reality nowadays, a concrete status has been acquired, and it is now applied universally in other legal sciences. One can relate comparative law as a relatively adolescent science in this jurisprudence system. There are still many unrequited queries, which have not been investigated sufficiently regarding its methodological and procedural basis. Therefore, it may continue to be a tentative wall for legal scholars in future.

It is possible to declare with a greater dependence at the sunrise of this 21st century, that both functionally and structurally, comparative law can be represented as a self-governing enlightening discipline systematically. It does have its own method, subject, and its boundaries of application. Thus, it is playing a vital and important in the differentiation of legal systems in the world and therefore, is having its special social designation.[21]

 

 

References

O. Kahn Freund. (1966). Comparative Law as an Academic Subject. Law Quarterly Review Vol. 40, 41.

P. de Cruz, (1999) Comparative Law in a Changing World.

H. Gutteridge. (1949). Comparative Law: An Introduction to the Comparative Method of Legal Study and Research. Cambridge University Press.

 

Djalil. I. Kiekbaev. (2003). Comparative Law: Method, Science of Educational Discipline. Bashkir State University. Vol. 7.

 

R. David. (1967). Sravnitelnoye Pravovedeniye (Pravoviye Systemy Sovremennosti), Moskva.

 

A.H. Saidov. (2000) Sravnitelnoye Pravovedeniye (Osnovniye Pravoviye Systemy Sovremennosti). Moskva.

 

A. Tikhomirov, Kurs Sravnitelnogo Pravovedeniya. Moskva, 1996, pp. 30-31.

 

H.E. Chodosh, Comparing Comparisons: In Search of Methodology, Iowa Law Review, Vol. 84.

 

K. Zweigert and H. Kotz. (2000). Vvedeniye v Sravnitelnoye Pravovedeniye v Sphere Chastnogo Prava. Vol. 1, Ioskva.

 

V.S. Nersesyants, (2001). Sravnitelnoye Pravovedeniye v Systeme Jurisprudentsii, Gosudarstvo i Pravo, Vol. 4.

 

W. Ewald. (1995). Comparative Jurisprudence: What Was It Like to Try a Rat, Pennsylvania Law Review, Vol. 143.

 

M.A. Glendon, M.W. Gordon, and Ch. Osakwe. (1994). Comparative Legal Traditions. St. Paul, Minn.

 

M. Bogdan, (1994). Comparative Law. Kluwer/Stockholm: Norstedts Juridik/Oslo: TANO.

 

I. Winterton. (1975). Comparative Law Teaching, American Journal of Comparative Law.

 

E. Orucu. (2000). Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition, Electronic Journal of Comparative Law, Vol. 4.1. (http://law.kub.nl/ejcl/41/art41-1.html) Retrieved November 16, 2006

 

O. Pfersmann. (2001). Le droit comparé comme interprétation et comme théorie du droit, Revue international de droit  comparé, Vol. 53.

 

M.N. Marchenko. (2001). Sravnitelnoye Pravovedeniye. Obshaya Chast. Moskva, Izdatelstvo 'Zertsalo'.

 

Wikipedia, the free encyclopedia. Comparative Law. (http://en.wikipedia.org/wiki/Comparative_law) Retrieved November 16, 2006

 

Markku Kiikeri. (2001). Comparative Legal Reasoning and European Law. Springer.

Kent C. Olson, Robert C. Berring. (1988). Practical Approaches to Legal Research. Haworth Press.

[1] Comparative Law, Wikipedia; the Free Encyclopedia. (http://en.wikipedia.org/wiki/Comparative_law) Retrieved

   November 15, 2006 [2] Pfersmann 2001: Part I Introduction, part IB. [3] Stewart 1997; naturalistic fallacy that contains philosophical positivist doctrine of natural law [4] O. Kahn Freund, Comparative Law as an Academic Subject, Law Quarterly Review Vol. 40, 41 (1966). [5] P. de Cruz, Comparative Law in a Changing World. Pp. 5 (1999). [6] H. Gutteridge, Comparative Law: An Introduction to the Comparative Method of Legal Study and Research.

   Cambridge University Press. (1949). [7] Djalil. I. Kiekbaev, Comparative Law: Method, Science of Educational Discipline. Bashkir State University.

   Vol. 7(2003) [8] R. David, Sravnitelnoye Pravovedeniye (Pravoviye Systemy Sovremennosti), Moskva, (1967). [9] A.H. Saidov, Sravnitelnoye Pravovedeniye (Osnovniye Pravoviye Systemy Sovremennosti). Moskva, 2000, p. 25 [10] .A. Tikhomirov, Kurs Sravnitelnogo Pravovedeniya. Moskva, 1996, pp. 30-31. [11] H.E. Chodosh, Comparing Comparisons: In Search of Methodology, Iowa Law Review, Vol. 84, pp. 1046-1052 [12] K. Zweigert and H. Kötz, Vvedeniye v Sravnitelnoye Pravovedeniye v Sphere Chastnogo Prava. Vol. 1, Ìoskva, 2000, pp. 68-69. [13] A.H. Saidov, Sravnitelnoye Pravovedeniye (Osnovniye Pravoviye Systemy Sovremennosti). Moskva, 2000, p. 24 [14] V.S. Nersesyants, Sravnitelnoye Pravovedeniye v Systeme Jurisprudentsii, Gosudarstvo i Pravo, Vol. 4, 2001,

     pp. 5-15. [15] W. Ewald, Comparative Jurisprudence (I): What Was It Like to Try a Rat, Pennsylvania Law Review, Vol. 143,

     1995, p. 2115 [16] M.A. Glendon, M.W. Gordon, and Ch. Osakwe, Comparative Legal Traditions. St. Paul, Minn., 1994, pp. 7-8 [17] M. Bogdan, Comparative Law. Kluwer/Stockholm: Norstedts Juridik/Oslo: TANO, 1994, pp. 21-25. [18] I. Winterton, Comparative Law Teaching, American Journal of Comparative Law, 1975, p. 71. [19] E. Orucu, Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition, Electronic Journal of Comparative Law, Vol. 4.1, June 2000, (http://law.kub.nl/ejcl/41/art41-1.html), Retrived November 16, 2006. [20] O. Pfersmann, Le droit comparé comme interprétation et comme théorie du droit, Revue international de droit

     comparé, Vol. 53, (2001), pp. 275-288. [21] M.N. Marchenko, Sravnitelnoye Pravovedeniye. Obshaya Chast. Moskva, Izdatelstvo 'Zertsalo', 2001, pp. 79.