It is not a law in itself but a method of looking at legal problem, a comparative approach to the study of laws and legal institutions of two or more countries. Comparative law is the systematic application of the comparative technique, a discipline and a method by which the values of human life are known and evaluated. The essence of comparative law is the act of comparing the law of one country to that of another. The argument has thus already been made that comparative law should disappear as an autonomous subject reimann, 1996 or at least be seen as an integral dimension of all forms of legal endeavour glenn, 1999.
Functions of comparative law and practical methodology of comparing. Definition of comparative law llb law lecture notes. This environmental damage in international and comparative law. Jan 01, 1987 52 comparative law and international law merely a method should be that it is both. Comparative law is not a body of rules and principles. This texts structure, now in its second edition, solves that dilemma. It also presupposes an encounter between a method comparative law and a corpus of. Functions of comparative law and practical methodology of.
Comparative law is the study of differences and similarities between the law of different countries. The importance of comparative law has increased enormously in. Some comparatists are inclined to regard the applicability of comparative jurisprudence as a tool for a more profound understanding of legal data, whereas such purposes of comparative jurisprudence as legal reform and the interpretation of laws are regarded as minor or subsidiary in comparative legal. The functional and the dysfunctional in the comparative. Perhaps as a legacy of this era, comparative law was to focus heavily on the private law core of western legal systems for much of the next century. Nearly every law school, therefore, is investigating the social and economic consequences of legal rules through clinical legal education, which attempts to provide a real or simulated laboratory experience for law students. The topic includes different conceptions of comparative law such as a method of study or distinct science of law. Comparative law in the classroom visavis in the court are certainly two very different animals. The evolving jurisprudence of the crime of rape in. Your story matters citation holger spamann, empirical comparative law, harvard john m. That said, it is an important subsystem and one that many practitioners will be working with on a daytoday basis. Introduction and objectives law nujs kolkata wb national.
Comparative law is not a branch of law or of legal science, such as family law. Dictionary of international and comparative law world. Some reg ard it both as a compar ative method a nd a comparative sc ience of law, or see in comp arative l aw more. Second, the interdisciplinary approach should help formulate and evaluate the concept in. Olin center for law, economics, and business, discussion paper no. Nationality law does not say much about the position of nationals in order to better understand meaning of concept, need to have a good grasp of its consequences nationality is a right to have rights h. It analyses important policy issues in the area of company law, including the emergence and nature of the business corporation, eu company law, incorporation and corporate representation, agency problems in the firm, rights of stakeholders and shareholders, minority shareholder protection in corporate control. Some comparatists are inclined to regard the applicability of comparative jurisprudence as a tool for a more profound understanding of legal data, whereas such purposes of comparative jurisprudence as legal reform and the interpretation of laws are regarded as minor or subsidiary in comparative legal research. In this sense, comparative law is an historical science. General principles and comparative law oxford academic journals.
This should reveal its connections with and its peculiarities within both the development of comparative law and the development of functionalism in other disciplines. If law comparison is to serve the legal science, it will have to be defined in what way it should do so, in other words, again, we shall have to reflect first on the functions we want to pursue with the legal comparison, the standard to establish the value of the comparative activity again being set by their feasibility to serve these functions. Environmental damage in international and comparative law. In ancient law, there was an intimate relationship between comparative law and historical research. The differing federalisms of canada and the united states, 55 law and contemp. In contrast, private law was seen as embodying common and universal features, derived ultimately from the roman tradition. The expression comparative law is a modern one, first used in the 19th century when it became clear that the comparison of legal institutions deserved a systematic approach, in. We rather examine what could be the functions of law comparison in the broadest and simplest meaning, i.
In our increasingly globally linked world, comparative law needs to. Empirical comparative law the harvard community has made this article openly available. Comparative law is the study of differences and similarities between the law legal systems of different countries. This article explores the source general principles of international law from the point of view. Comparative scholarship is an obvious, rich, and strangely neglected source of guidance for international judges who wish to draw insights from legal systems outside international law. Eu instruments, this court tends to give their words an autonomous meaning. Primarily, it is a method, a way of looking at legal problems, legal institutions, and entire legal systems. The currently accepted definition of general principles and.
Western comparative law did not place public law in their sights, preferring to ascribe to the public law a particularity and responsiveness to local values. I raise this question because i am not convinced that comparative constitutional law is so clearly behind in the field of law more generallywhich across many areas could benefit from more of. Comparative law in the strict sense which includes two stages. Legal tradition, legal culture, legal families, and legal systems. Introduction all of in isola at university college cork. Origin and development of comparative law srd law notes. Thus, the principle of functionality governs the comparative method of law and in turn the comparative method governs what we generically call comparative law. As a discipline, it emerged between 193060 in response to legal formalism, and builds on scattered uses of legal historical comparison since antiquity. Comparative legal research increases our knowledge of the legal system as a. Comparative law, function and methods sciencedirect. Comparative legal families and comparative legal traditions.
The oxford handbook of comparative law, oup, oxford. Functional method of comparative law oxford handbooks. Comparative company law today is conceived and created equally by legislators, lawyers, academics, and courts. Environmental damage in international and comparative law problems of definition and valuation. Read pdf environmental damage in international and comparative law problems of definition and valuation comparative law problems of definition and valuation that we will certainly offer.
It utilises the techniques of legal history and comparative law. Term and purpose comparative law describes the comparison of various laws. Comparative law studies various phenomena of legal life operating in the past or the present, considers legal propositions as historical facts including those. With regards the meaning of comparative legal research, this has been giving meaning to in the work of w. With a preliminary remark that legal definitions are notoriously unsatis factory, h. In september 2018, the supreme court in tripathi v supreme court of india 2018.
While the former represents the comparison of two or more legal systems as a whole, the latter describes the analysis of a specific legal issue and how it is treated in two or more legal systems. Oct 31, 2012 comparative law is increasingly integrated into law itself, as a fundamental technique and means of support. We must also understand what meaning the words have within the context of the case, statute, or other legal norm. Descriptive comparative law is notdirected to the solutionofany problem ofanabstract or a practical nature. Comparative law studies various phenomena of legal life operating in the past or the present, considers legal propositions as historical facts including those formulated by legislators, judges and scholars, and so verifies what genuinely occurred. Comparative law as the study of transplants and receptions. This is clearer from the term in german rechtsvergleichung than from the term in other languages comparative law, droit compare. Extract chapter 1 comparative law and its importance in legal translation 1. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. Jul 29, 2005 in addition, law schools are increasingly exploring the ways in which the law in textbooks may differ from the law in action. Comparative law, examination of comparative legal systems and of the relationships of the law to the social sciences. Comparative law and the study of mixed legal systems.
The importance of comparative law in legal education. Comparative law comparative law may be defined as the study of the similarities and differences between the laws or legal rules of two or more countries, or between two or more legal systems i. Established methodologies within comparative legal studies tap up intellectual vigour and generosity of wisdom for comparative approach. It is comparison of law, not really a field of substantive law. Arendt rules on acquisition and loss of nationality only. Comparative law can be of great utility when applied to historical research. This is particularly problematic in comparative company law, where students hope both to understand the overall framework of the law and grasp its practical application. Mar 31, 2014 in general, comparative legal studies can be divided into two main groups. Most frequently, the basis for comparison is a foreign law juxtaposed against the measure of ones own law. The making and meaning of the australian constitution, cambridge university press, cambridge. Comparative law, university of queensland, founded 2003. Neal devins and louis fisher, the democratic constitution oxford university press, 2010 10. The value utility of comparative law srd law notes. Kamba 1974 where he defined the concept of comparative legal research as it means the study of and research in, law by the systematic comparison of two or more legal systems.
Pdf general principles and comparative law researchgate. We are pleased to present the journal of comparative law. Mark tushnet, the possibilities of comparative constitutional law, 108 yale. The possibilities of comparative constitutional law, 108 yale. Comparative legal history is the study of law in two or more different places or at different times. Gutteridge, the doyen of the discipline, dismisses the question of definition thus. Chapter 1 comparative law and its importance in legal translation 1. Comparative law is not a branch of law or of legal science, such as family law, administrative law or criminal law, among. This book provides an exposition of company law from a comparative perspective. Second, the interdisciplinary approach should help formulate and evaluate the concept in order to.
Process theories governing comparative law comparative law as a educational tool. Methods of comparative law brings to bear new thinking on topics including. This article explores the source general principles of international law from the point of view of comparative law scholarship. The term legal history records simply the changes which have accrued in the development of law whereas comparative legal history signifies the process of changes in the. Dec 01, 2006 comparative company law is about learning from each others experience in a competitive way, and solving together the crossborder problems arising for and from companies that are facing global competition. Comparative law is by definition the study of foreign law. The method and role of comparative law washington university. Singh, comparative constitutional law eastern book company, 1989. Second are materials on the development of comparative legal. Comparative constitutional law, satyam law international. Comparative law and the europeanization of private law. When comparing the laws of different jurisdictions, one often sees only the forest or the trees. By and large, the great figures of western comparative law did not place public law in their sights, preferring to ascribe to the public law a particularity and responsiveness to local values. Jun 29, 2012 methods of comparative law brings to bear new thinking on topics including.
1514 1060 705 1331 715 258 971 1176 820 700 181 987 839 903 1477 358 1298 595 478 1251 604 28 841 1512 1 941 145 1051 304 2 1266 1369 992