T. W. Bennett
Customary law grows out of the social practices which a given jural community has come to accept as obligatory. It is a pervasive normative order, providing the regulatory framework for spheres of human activity as diverse as the family, the neighbourhood, the business of merchant banking, or international diplomacy. This article looks at the indigenous customary laws of sub-Saharan Africa. It deals with the preservation of the law in an oral tradition and how it has been influenced by certain social, economic, and political structures. This focus requires, in turn, that particular attention be paid to factors influencing the production of texts on customary law. Because textual information on the subject is limited, often outdated, and somewhat subjective, readers must be made aware of how changes in the theories of jurisprudence and anthropology have affected ideas and preconceptions.
Jan M. Smits
This article assesses the scholarly state of affairs regarding the influence of comparative law in national systems. In so doing, emphasis is put on private law and constitutional law, as these are the two areas where comparative inspiration is discussed most vigorously. The second and third section distinguishes several types of use of comparative law by national legislatures and courts, providing the background for a critical evaluation of this influence in the subsequent sections. The fourth section discusses the legitimacy question and the question of how to categorize the different uses of foreign law. The fifth section addresses why a legislature or court actually refers to foreign law and is how to explain the different extent to which countries are open to foreign influence. The last section considers the exact influence of comparative law arguments on the legislature’s or court’s reasoning.
This article examines comparative law in Islamic/Middle Eastern legal culture. The first section discusses the comparative framework in Islamic law and civilization. The second section describes the rule of law in the prism of the legal profession. The third section discusses the notions of public and private in issues such as constitutions, contracts, and torts, and family law. A millennium and a half after the Islamic revelation, unrest and violence associated with the Islamic/Middle Eastern world make one wonder, from a comparative perspective, whether West and East are not on a collision course precisely because of their diametrically opposed concepts of law. On the Western side, law is associated with nation-states and their territory; on the Islamic/Middle Eastern side, law is dominated by the personal dimension, defined by an individual’s religious, and often sectarian identity.
Jacques Du Plessis
Legal systems generally are ‘mixed’ in the sense that they have been influenced by a variety of other systems. However, while some legal systems, for a period of time at least, reach a certain level of uniformity, the diversity or ‘mixedness’ of the origins of other systems is more pronounced. This chapter deals with the experiences of the latter systems, and especially with their relevance to the discipline of comparative law. The focus is first on the concept of a mixed legal system, as well as related concepts, such as legal pluralism and hybridity, that have gained prominence in comparative analyses. Thereafter key questions that arise from these analyses are then considered in detail. These questions include how the mixed nature of legal systems is to be dealt with in representations of legal diversity of the world, how mixed legal systems are formed, and what could be learned from their experiences.
The region of Central and Eastern Europe covers many of the European nations east of Germany. The dominant nation of the region is Russia. Between Russia and Germany there are, first, a number of small nations composing the region known as Central Europe (Poland, Hungary, the Czech Republic, and Slovakia); second, the nations which formed the western part of the Soviet Union; and, third, the states on the Balkan peninsula. This article shows the rich history of comparative law before the installment of communist regimes, such as the era of Stalin, and then discusses comparative law under communism and the role and status of comparative law after the fall of communist rule.
France has a long and solid tradition of comparative law. This article traces the discipline’s development in France, describing its strengths and weaknesses. As universal a science as it is, comparative law has distinctive features in each country. While there is currently no such thing as French or Italian comparative law in the sense that there is French or Italian contracts law, there is an identifiable French style in comparative law that is closely related to the development of French legal thought in general. The never-ending question of the purpose of comparative law emerges as one of the fundamental jurisprudential debates of the twentieth century. The first section of this article details the historical rise of comparative law in France. The second section chronicles its decline. The third section predicts its renaissance, provided French scholars, practitioners, and judges give the study of comparative law the regard it is due, in the light of the internationalization and Europeanization of the law.
This article provides an overview both of the development of comparative law as a field of research, and of its impact on legal changes in Germany, Switzerland, and Austria. It focuses on the development of comparative law in the field of the law of obligations. The second section deals with the long nineteenth century. The third section considers the golden age of comparative law, which covers the period of the Weimar Republic. The fourth section discusses the ‘dark age’ of the 1930s and the first half of the 1940s. The fifth section describes recovery and post-war developments until the end of the cold war. The final section focuses on attempts to unify the law and on new approaches to comparative law which have gained in importance in the course of the Europeanization of private law.
John W. Cairns
Comparative law developed in Great Britain in the second half of the nineteenth century. The discipline focused mainly on imperial problems of foreign law and the assimilation of the laws of the different dominions of the Empire. Despite an interest in evolutionary jurisprudence, British scholars generally did not view the discipline as involving a search for universal principles. Through the twentieth century, there was a tendency to focus on comparison of the common law with the civil law, especially that of France. The discipline started to be significant in the universities with the expansion of legal education after the Second World War. Some aspects of the discipline developed into more anthropological studies, others remained more traditionally academic, while British membership of the European Economic Community (EEC) and more global pressures engendered interest in issues such as legal transplants and mixed systems, even if British scholars have traditionally been sceptical of unification of laws as an aim.
Since Italy’s unification in 1861, Italian law has mainly been a ‘context of reception’. In contrast to contexts of production, where legal scholarship tends to unfold in a self-centred mode, contexts of reception tend to search for legal innovation abroad. Italian legal culture has often copied legal ideas, norms, and institutions from foreign countries but only rarely produced original work of its own. The article begins the story of comparative law in Italy in the early part of the twentieth century. It distinguishes three fundamental layers: a commercial law branch, a reformist tradition, and a mainstream, ‘scientific’, approach. It discusses the current state of Italian comparative law resulting from the academic and cultural influence of these three layers. It also attempts to assess the impact of the more significant and original contributions of Italian comparative law at the European and global levels.
This chapter discusses the historical development of comparative law in Japan, beginning with the Meiji government’s review of Western legal systems in order to craft its own modern legal system. In particular, it explains how foreign and comparative laws were imported into Japan and how the country’s ‘comparative law era’ began. The chapter then considers how Japanese law impacted legal developments in other countries, such as those in Asia and how comparative law studies are carried out within Japan today, with emphasis on consumer and civil law amendments, gradual transformation in corporate law and practice, and reforms within the civil and criminal justice systems. It also examines two major areas of interest among comparative law scholars focused on Japan: civil dispute resolution and corporate governance. Finally, it analyzes opportunities as well as challenges for comparative law scholarship in Japan.
Latin American law has largely been neglected by mainstream comparative law. The presumed ‘familiarity’ and the consequent perception of Latin American law as lacking sufficient originality, or rather exoticism, may explain why comparative works have often dedicated considerably more attention to other jurisdictions. The topics of both Latin American law as the object of comparative law, and comparative law as a subject in Latin American jurisprudence, have remained in the shade with the result that they have become battlegrounds for influence and domination. This article provides a rough sketch of the historical development of comparative law in Latin America and its significance for, and impact on, the legal systems of the Latin American countries today.
This chapter discusses the historical development of comparative law in modern China, from the late Qing dynasty to the present day. It first traces the origins of China’s reception of foreign law in the late Qing period, citing the Opium War as a watershed moment in the development of Chinese law and the elites’ efforts to transplant Western law. It then considers how ‘comparative law’ as a formal academic discipline took shape during the Republican era. It also examines the emergence of a completely different paradigm for legal reform under the People’s Republic of China (1949–78), with Soviet law replacing Western European and American law as the primary source of foreign influence. Finally, it describes the new era of political and legal reform that came after the death of Mao Zedong in 1976, focusing on Chinese politics in relation to Confucian pragmatism, nationalism, communism, and Western liberalism.
David S. Clark
This chapter examines the origins of comparative law activities during the colonial British American period and the formative era of the United States. During the eighteenth and nineteenth centuries, knowledge of Enlightenment philosophy and Roman and continental European legal systems acted as a filter for the importation of rules and structures to serve a culturally diverse people and to construct an emerging nation in the new world. Nevertheless, the first 125 years of United States history saw some exportation of American laws and legal institutions, primarily to the newly independent Latin American nations in the 1820s. These included concepts from the Constitution of 1789, the 1791 Bill of Rights, and public law structures such as federalism, a presidential executive, and judicial review of legislative and executive action. By the twentieth century, American comparative law began to form as an organized activity, with its own institution, journal, and annual meetings. This process was uneven, but steady. When the Comparative Law Bureau folded into a more comprehensive ABA section, the American Foreign Law Association kept the flame alive. Comparatists dealt with more complex methods and issues, some debated in international meetings. After World War II, law school professors established American comparative law on a firmer institutional basis with a new association, journal, and scholarly meetings.
The aim of this article is to give an account of legal families as a comparative law approach and as a classification of legal systems. The text discusses especially the future of legal families. The article begins with a short review of macro-comparative law’s basic approaches and concepts. It then considers the past and present of the basic notions of macro-comparative law, focusing on the classification of legal families and the recent critique of them. Finally, this article examines the new roles of legal families and, in particular, it addresses the possible future utility of legal family as a basic notion and as an approach in macro-comparative law.
This article begins with discussions of what constitutional law is and general views on the place of constitutional law. It then considers the role of constitutional law versus ordinary law, and the political process that makes and executes it in certain specific and contested areas. In particular, it discusses rights protection and the structure of government; private law and the conduct of private individuals; and entitlements to state protection and socio-economic benefits.