This chapter sets out to clarify the ideas of comparison and comparative knowledge. It analyses different approaches to these two issues, both from an analytical perspective and by means of a comparison with other disciplines, such as historical linguistics, comparative religion, and comparative history. The chapter describes the core of comparative knowledge as a structured description of a set of similarities and differences of the objects compared. Analytically, the article is based on the distinction of classifying comparison, qualifying comparison, and complex comparisons. Although qualifying and complex judgments of similarity and difference are irreducibly subjective, they are not meaningless if they relate to a clearly defined epistemological perspective or to a common understanding of the relevant circumstances; moreover they can be rationalized by a number of different tecniques. Those methodological techniques are presented in a list of nine basic conclusions.
The contribution of Critical Legal Studies to comparative law is a matter of considerable international interest, not only in light of the remarkable presence of the movement in several leading US-American academic institutions but also in view of the rather desperate need for comparative law as an academic discipline for theoretical revision and reorientation. This article examines the contributions Critical Legal Studies has really made to comparative law, and how original they are. First, it describes the emergence, as well as some of the work, of Critical Legal Studies in terms of comparative law. Second, it pursues to what extent the Critical Legal Studies approach breaks with, or rather continues, the agenda of the discipline’s mainstream. Third, it presents a sympathetic analysis of the critique, evaluating the actual political and scholarly contribution of the Critical Legal Studies approach to comparative law.
Vivian Grosswald Curran
The study of language is a cognitive model for comparative law. Language’s own dependence on translation is instructive in understanding comparative law in terms of the contrasting categories that undergird the civil and common law legal systems. Comparative law is situated between deeply entrenched, mutually contradictory aspirations of universalism and pluralism. While former domains of pluralism and difference are receding, difference itself remains undiminished. Comparative law’s effectiveness as a translator of the foreign depends on how well its acquired skills and methods can be adapted to new kinds of foreignness.
The idea of legal culture has had an important place in major recent debates about the nature and aims of comparative law. The idea of legal culture entails that law should be treated as embedded in a broader culture of some kind. This culture may, but need not necessarily, be seen as wider than the lawyer’s or lawmaker’s professional realm of law. Often, however, conceptions of legal culture encompass much more than this professional juristic realm. They refer to a more general consciousness or experience of law that is widely shared by those who inhabit a particular legal environment, for example, a particular region, nation, or group of nations. Culture appears fundamental—a kind of lens through which all aspects of law must be perceived, or a gateway of understanding through which every comparatist must pass so as to have any genuine access to the meaning of foreign law.
Nora V. Demleitner
This chapter discusses comparative law within the framework of legal education in North America and Europe. It first considers some of the key debates surrounding the teaching of comparative law before providing a historical overview of major developments on both sides of the Atlantic since the nineteenth century. It then examines the post-World War II resurgence of comparative law in US legal education and the ascent of comparative law teaching in Europe, as well as the place of comparative law in legal education today. It also analyzes the present role of comparative law teaching in the European Union, the impact of international and transnational law on comparative legal education in the United States, and comparative law in Australia and Canada. The chapter concludes with a review of some of the current challenges to comparative law as a subject of teaching and scholarship and how comparative law fits into legal education more generally.
The comparative study of transplants and receptions investigates the patterns of change triggered by contacts among laws and legal cultures. The study of legal transfers offers considerable intellectual rewards. It shows that the law is a complex phenomenon and corrects simplistic views regarding what law is and how it develops. Furthermore, it highlights how the language of the law is transformed as a consequence of such a dynamic through translations and adaptations. The spread of legal institutions, ideals, ideologies, doctrines, rules, and so on, is often in the hands of professional elites. The study of transplants and receptions demonstrates that the knowledge and standing of those elites comes from interactions between the local and non-local dimensions of the law. This picture is true in Berlin, in New York, in London, and in Lima, but it is also true in less cosmopolitan environments. The study of legal transplants has sometimes been accused of embracing a conservative orientation. Yet, this study simply subjects the law’s pretensions concerning its origins and ends to critical analysis. Doing so is not inconsistent with advancing progressive goals at all; in fact, it may be vital to a progressive agenda.
Comparing legal systems involves, at least to some degree, exploring both similarities and differences. For some writers, this forms part of the definition of comparative law. Some comparative lawyers have generally emphasized differences, while others see similarities, particularly in problems and their results, and a third group has sought to strike a balance between observing and analyzing similarities and differences. Drawing on a debate in comparative history, this article argues that the proper balance between looking for similarities and for differences depends on the purpose of the comparative enquiry. Furthermore, it links the issue of difference or similarity to the various steps which are involved in a comparative legal enquiry, suggesting that some steps require more focus on similarity, others on difference, and many call for a balance of both.
The functional method has become both the mantra and the bête noire of comparative law. For its proponents it is the most, perhaps the only, fruitful method. For its opponents, it represents everything bad about mainstream comparative law. This chapter tries to reconstruct and evaluate functionalist comparative law by placing it within the larger framework of other disciplines, especially the social sciences. Such an interdisciplinary analysis yields three promises. First, the interdisciplinary look makes possible a (re-) construction of a more theoretically grounded functional method of comparative law than is usually presented. Second, the interdisciplinary approach helps formulate and evaluate the concept in order to determine how functional the method really is. Third, comparison with functionalism in other disciplines can reveal what is special about functionalism in comparative law, and why what in other disciplines would rightly be regarded as methodological shortcomings may in fact be fruitful for comparative law. This opens the way to a reformulated functional method of comparative law.
Constitutional courts have made a fundamental contribution in clarifying the domestic binding force of the European Convention on Human Rights, in spite of the divergences as to its status in domestic law. This article examines the status of the Convention in domestic legal systems, which remains a question of constitutional law; and the status and implementation of the judgments of the European Court of Human Rights. It looks at four domestic systems, selected for their particular relevance. Three of them have a written constitution (Germany, France, and Belgium) and the fourth, the United Kingdom, has a human rights ‘catalogue’ (the Human Rights Act 1998) comparable to a constitution.