Comparative law: Difference between revisions

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{{short description|Study of relationship between legal systems}}

[[File:Map of the Legal systems of the world (en).png|thumb|Legal Systems of the World]]

'''Comparative law''' is the study of differences and similarities between the [[law]] and [[Legal system|legal systems]] of different countries. More specifically, it involves the study of the [[List of national legal systems|different legal systems]] (or "families") in existence around the world, including [[common law]], [[Civil law (legal system)|civil law]], [[socialist law]], [[~~Canon~~ law]], [[Halakha|Jewish ~~Law~~]], [[Sharia|Islamic law]], [[Hindu law]], and [[Chinese law]]. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of [[Internationalism (politics)|internationalism]] and [[economic globalization]].

'''Comparative law''' is the study of differences and similarities between the [[law]] and [[Legal system|legal systems]] of different countries. More specifically, it involves the study of the [[List of national legal systems|different legal systems]] (or "families") in existence around the world, including [[common law]], [[Civil law (legal system)|civil law]], [[socialist law]], [[canon law]], [[Halakha|Jewish law]], [[Sharia|Islamic law]], [[Hindu law]], and [[Chinese law]]. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of [[Internationalism (politics)|internationalism]] and [[economic globalization]].

==History==

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The modern founding figure of comparative and [[legal anthropology|anthropological]] jurisprudence was Sir [[Henry Maine]], a British jurist and legal historian.<ref>{{cite book|url=https://books.google.com/books?id=iEk-Fpdw4MYC|title=Sir Henry Maine: A Study in Victorian Jurisprudence|author=Raymond Cocks|year=2004|publisher=Cambridge University Press|page=34|isbn=9780521524964}}</ref> In his 1861 work ''[[Ancient Law|Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas]]'', he set out his views on the development of legal institutions in primitive societies and engaged in a comparative discussion of [[Far East|Eastern]] and [[Western culture|West]]ern legal traditions. This work placed comparative law in its historical context and was widely read and influential.

The first university course on the subject was established at the [[University of Oxford]] in 1869, with Maine taking up the position of professor.<ref>{{Cite ~~web~~|url=https://www.britannica.com/EBchecked/topic/358681/Sir-Henry-Maine|title=Sir Henry Maine|access-date=2012-12-17}}</ref>

The first university course on the subject was established at the [[University of Oxford]] in 1869, with Maine taking up the position of professor.<ref>{{Cite encyclopedia|url=https://www.britannica.com/EBchecked/topic/358681/Sir-Henry-Maine|title=Sir Henry Maine|encyclopedia=Encyclopedia Britannica |access-date=2012-12-17}}</ref>

Comparative law in the US was brought by a legal scholar fleeing persecution in Germany, [[Rudolf Schlesinger]]. Schlesinger eventually became professor of comparative law at [[Cornell Law School]] helping to spread the discipline throughout the US.{{~~citation needed~~|date=~~May 2023~~}}

Comparative law in the US was brought by a legal scholar fleeing persecution in Germany, [[Rudolf Schlesinger]]. Schlesinger eventually became professor of comparative law at [[Cornell Law School]] helping to spread the discipline throughout the US.<ref>{{Cite journal |last1=Schlesinger |first1=Rudolf |last2=Bruce |first2=Thomas |date=1988-04-16 |title=Rudolf B. Schlesinger - Clip 1 |url=https://scholarship.law.cornell.edu/lawschool_heritage/43 |journal=Cornell University Law School Heritage Project}}</ref>

==Purpose==

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For example, comparative law can help international legal institutions, such as those of the [[United Nations System]], in analyzing the laws of different countries regarding their treaty obligations. Comparative law would be applicable to private international law when developing an approach to interpretation in a conflicts analysis. Comparative law may contribute to legal theory by creating categories and concepts of general application. Comparative law may also provide insights into the question of [[legal transplants]], i.e. the transplanting of law and legal institutions from one system to another. The notion of [[legal transplants]] was coined by [[Alan Watson (legal scholar)|Alan Watson]], one of the world's renowned legal scholars specializing in comparative law. [[Gunther Teubner]] expanded the notion of legal transplantation to include ''legal irritation'': Rather than smoothly integrating into domestic legal systems, a foreign rule disrupts established norms and societal arrangements. This disruption sparks an evolution where the external rule's meaning is redefined and where significant transformations within the internal context are triggered.<ref>{{Cite journal |last=Teubner |first=Gunther |date=1998 |title=Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=876950 |journal=The Modern Law Review |volume=61 |issue=1 |pages=11–32|doi=10.1111/1468-2230.00125 |ssrn=876950 }}</ref> Lasse Schuldt added that irritation is not spontaneous, but requires institutional drivers.<ref>{{Cite journal |last=Schuldt |first=Lasse |date=2023-09-25 |title=Driving Irritation: Thailand's Supreme Court and the English Roots of Corporate Criminal Liability |url=https://www.cambridge.org/core/journals/asian-journal-of-comparative-law/article/driving-irritation-thailands-supreme-court-and-the-english-roots-of-corporate-criminal-liability/A5C74EAC37FB689A03E54F5EBB6B1409/share/bb0af930ebdb2439ba3e100ae30a2ee0cf5d32ab19310b744e9142b2f1e3b2c5 |journal=Asian Journal of Comparative Law |volume=19 |language=en |pages=142–158 |doi=10.1017/asjcl.2023.29 |s2cid=263007531 |issn=2194-6078|url-access=subscription }}</ref>

Also, the usefulness of comparative law for [[sociology of law]] and [[law and economics]] (and vice versa) is very large. The comparative study of the various legal systems may show how different legal regulations for the same problem function in practice. Conversely, sociology of law and law & economics may help comparative law answer questions, such as:

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===Arminjon, Nolde, and Wolff===

Arminjon, Nolde, and Wolff<ref>''Traité de droit comparé'' – in French; Paris 1950–1952</ref> believed that, for purposes of classifying the (then) contemporary legal systems of the world, it was required that those systems ''per se'' get studied, irrespective of external factors, such as geographical ones. They proposed the classification of legal system into seven groups, or so-called 'families', in particular the:<ref name="VARGA-p59-WOLFF">{{cite book |last=Varga |first=Csaba |date=2012 |title=COMPARATIVE LEGAL CULTURES |url=https://philarchive.org/archive/VARCLC |location=Budapest |publisher= |page=59 |isbn=9789632773377}}</ref>

* [[Law of France|French group]], under which they also included the countries that codified their law either in 19th or in the first half of the 20th century, using the [[Napoleonic ~~code~~|Napoleonic ''code civil'']] of year 1804 as a model; this includes countries and jurisdictions such as Italy, Portugal, Spain, Romania, [[Louisiana]], various South American states such as Brazil, [[Quebec]], [[Saint Lucia]], the [[Ionian Islands]], Egypt, and [[Lebanon]]

* [[Law of France|French group]], under which they also included the countries that codified their law either in 19th or in the first half of the 20th century, using the [[Napoleonic Code|Napoleonic ''code civil'']] of year 1804 as a model; this includes countries and jurisdictions such as Italy, Portugal, Spain, Romania, [[Louisiana]], various South American states such as Brazil, [[Quebec]], [[Saint Lucia]], the [[Ionian Islands]], Egypt, and [[Lebanon]]

* [[Law of Germany|German group]]

* Scandinavian group, comprising the laws of Denmark, Norway, Sweden, Finland, and Iceland

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* [[Islamic law]]

* [[Hindu law]]

* [[Chinese law#Confucianism|~~Confucianism~~ law]]

* [[Chinese law#Confucianism|Confucian law]]

* [[Civil law (legal system)|Civil law]]

* [[Common law]]

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* Glendon, Mary Ann, Paolo G. Carozza, & Colin B. Picker (2014). ''Comparative Legal Traditions: Text, Materials and Cases on Western Law'', 4th edn. West Academic Publishing.

* Glenn, H. Patrick. ''Legal Traditions of the World'', 5th edn. Oxford: Oxford University Press, 2014 (1st edn 2000).

* Varga, Csaba, ed. ''Comparative Legal Cultures'', Aldershot: Dartmouth Dartmouth & New York: The New York University Press, 1992.

;Fields

* Bignami, Fracesca & David Zaring, eds. ''Comparative Law and Regulation: Understanding the Global Regulatory Process''. Edward Elgar, 2018.

@@ Line 1: / Line 1: @@
 {{short description|Study of relationship between legal systems}}
 [[File:Map of the Legal systems of the world (en).png|thumb|Legal Systems of the World]]
-'''Comparative law''' is the study of differences and similarities between the [[law]] and [[Legal system|legal systems]] of different countries. More specifically, it involves the study of the [[List of national legal systems|different legal systems]] (or "families") in existence around the world, including [[common law]], [[Civil law (legal system)|civil law]], [[socialist law]], [[Canon law]], [[Halakha|Jewish Law]], [[Sharia|Islamic law]], [[Hindu law]], and [[Chinese law]]. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of [[Internationalism (politics)|internationalism]] and [[economic globalization]].
+'''Comparative law''' is the study of differences and similarities between the [[law]] and [[Legal system|legal systems]] of different countries. More specifically, it involves the study of the [[List of national legal systems|different legal systems]] (or "families") in existence around the world, including [[common law]], [[Civil law (legal system)|civil law]], [[socialist law]], [[canon law]], [[Halakha|Jewish law]], [[Sharia|Islamic law]], [[Hindu law]], and [[Chinese law]]. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of [[Internationalism (politics)|internationalism]] and [[economic globalization]].
 ==History==
@@ Line 19: / Line 19: @@
 The modern founding figure of comparative and [[legal anthropology|anthropological]] jurisprudence was Sir [[Henry Maine]], a British jurist and legal historian.<ref>{{cite book|url=https://books.google.com/books?id=iEk-Fpdw4MYC|title=Sir Henry Maine: A Study in Victorian Jurisprudence|author=Raymond Cocks|year=2004|publisher=Cambridge University Press|page=34|isbn=9780521524964}}</ref> In his 1861 work ''[[Ancient Law|Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas]]'', he set out his views on the development of legal institutions in primitive societies and engaged in a comparative discussion of [[Far East|Eastern]] and [[Western culture|West]]ern legal traditions. This work placed comparative law in its historical context and was widely read and influential.
-The first university course on the subject was established at the [[University of Oxford]] in 1869, with Maine taking up the position of professor.<ref>{{Cite web|url=https://www.britannica.com/EBchecked/topic/358681/Sir-Henry-Maine|title=Sir Henry Maine|access-date=2012-12-17}}</ref>
+The first university course on the subject was established at the [[University of Oxford]] in 1869, with Maine taking up the position of professor.<ref>{{Cite encyclopedia|url=https://www.britannica.com/EBchecked/topic/358681/Sir-Henry-Maine|title=Sir Henry Maine|encyclopedia=Encyclopedia Britannica |access-date=2012-12-17}}</ref>
-Comparative law in the US was brought by a legal scholar fleeing persecution in Germany, [[Rudolf Schlesinger]]. Schlesinger eventually became professor of comparative law at [[Cornell Law School]] helping to spread the discipline throughout the US.{{citation needed|date=May 2023}}
+Comparative law in the US was brought by a legal scholar fleeing persecution in Germany, [[Rudolf Schlesinger]]. Schlesinger eventually became professor of comparative law at [[Cornell Law School]] helping to spread the discipline throughout the US.<ref>{{Cite journal |last1=Schlesinger |first1=Rudolf |last2=Bruce |first2=Thomas |date=1988-04-16 |title=Rudolf B. Schlesinger - Clip 1 |url=https://scholarship.law.cornell.edu/lawschool_heritage/43 |journal=Cornell University Law School Heritage Project}}</ref>
 ==Purpose==
@@ Line 36: / Line 36: @@
 For example, comparative law can help international legal institutions, such as those of the [[United Nations System]], in analyzing the laws of different countries regarding their treaty obligations. Comparative law would be applicable to private international law when developing an approach to interpretation in a conflicts analysis. Comparative law may contribute to legal theory by creating categories and concepts of general application. Comparative law may also provide insights into the question of [[legal transplants]], i.e. the transplanting of law and legal institutions from one system to another. The notion of [[legal transplants]] was coined by [[Alan Watson (legal scholar)|Alan Watson]], one of the world's renowned legal scholars specializing in comparative law. [[Gunther Teubner]] expanded the notion of legal transplantation to include ''legal irritation'': Rather than smoothly integrating into domestic legal systems, a foreign rule disrupts established norms and societal arrangements. This disruption sparks an evolution where the external rule's meaning is redefined and where significant transformations within the internal context are triggered.<ref>{{Cite journal |last=Teubner |first=Gunther |date=1998 |title=Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=876950 |journal=The Modern Law Review |volume=61 |issue=1 |pages=11–32|doi=10.1111/1468-2230.00125 |ssrn=876950 }}</ref> Lasse Schuldt added that irritation is not spontaneous, but requires institutional drivers.<ref>{{Cite journal |last=Schuldt |first=Lasse |date=2023-09-25 |title=Driving Irritation: Thailand's Supreme Court and the English Roots of Corporate Criminal Liability |url=https://www.cambridge.org/core/journals/asian-journal-of-comparative-law/article/driving-irritation-thailands-supreme-court-and-the-english-roots-of-corporate-criminal-liability/A5C74EAC37FB689A03E54F5EBB6B1409/share/bb0af930ebdb2439ba3e100ae30a2ee0cf5d32ab19310b744e9142b2f1e3b2c5 |journal=Asian Journal of Comparative Law |volume=19 |language=en |pages=142–158 |doi=10.1017/asjcl.2023.29 |s2cid=263007531 |issn=2194-6078|url-access=subscription }}</ref>
 Also, the usefulness of comparative law for [[sociology of law]] and [[law and economics]] (and vice versa) is very large. The comparative study of the various legal systems may show how different legal regulations for the same problem function in practice. Conversely, sociology of law and law & economics may help comparative law answer questions, such as:
@@ Line 62: / Line 61: @@
 ===Arminjon, Nolde, and Wolff===
 Arminjon, Nolde, and Wolff<ref>''Traité de droit comparé'' – in French; Paris 1950–1952</ref> believed that, for purposes of classifying the (then) contemporary legal systems of the world, it was required that those systems ''per se'' get studied, irrespective of external factors, such as geographical ones. They proposed the classification of legal system into seven groups, or so-called 'families', in particular the:<ref name="VARGA-p59-WOLFF">{{cite book |last=Varga |first=Csaba |date=2012 |title=COMPARATIVE LEGAL CULTURES |url=https://philarchive.org/archive/VARCLC |location=Budapest |publisher= |page=59 |isbn=9789632773377}}</ref>
-* [[Law of France|French group]], under which they also included the countries that codified their law either in 19th or in the first half of the 20th century, using the [[Napoleonic code|Napoleonic ''code civil'']] of year 1804 as a model; this includes countries and jurisdictions such as Italy, Portugal, Spain, Romania, [[Louisiana]], various South American states such as Brazil, [[Quebec]], [[Saint Lucia]], the [[Ionian Islands]], Egypt, and [[Lebanon]]
+* [[Law of France|French group]], under which they also included the countries that codified their law either in 19th or in the first half of the 20th century, using the [[Napoleonic Code|Napoleonic ''code civil'']] of year 1804 as a model; this includes countries and jurisdictions such as Italy, Portugal, Spain, Romania, [[Louisiana]], various South American states such as Brazil, [[Quebec]], [[Saint Lucia]], the [[Ionian Islands]], Egypt, and [[Lebanon]]
 * [[Law of Germany|German group]]
 * Scandinavian group, comprising the laws of Denmark, Norway, Sweden, Finland, and Iceland
@@ Line 87: / Line 86: @@
 * [[Islamic law]]
 * [[Hindu law]]
-* [[Chinese law#Confucianism|Confucianism law]]
+* [[Chinese law#Confucianism|Confucian law]]
 * [[Civil law (legal system)|Civil law]]
 * [[Common law]]
@@ Line 152: / Line 151: @@
 * Glendon, Mary Ann, Paolo G. Carozza, & Colin B. Picker (2014). ''Comparative Legal Traditions: Text, Materials and Cases on Western Law'', 4th edn. West Academic Publishing.
 * Glenn, H. Patrick. ''Legal Traditions of the World'', 5th edn. Oxford: Oxford University Press, 2014 (1st edn 2000).
+* Varga, Csaba, ed. ''Comparative Legal Cultures'', Aldershot: Dartmouth Dartmouth & New York: The New York University Press, 1992.
 ;Fields
 * Bignami, Fracesca & David Zaring, eds. ''Comparative Law and Regulation: Understanding the Global Regulatory Process''. Edward Elgar, 2018.

Comparative law: Difference between revisions

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