Map of the Legal systems of the world (en)

Comparative law is the study of differences and similarities between the

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...

(

legal systems The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history and ...

) of different countries. More specifically, it involves the study of the different legal "systems" (or "families") in existence in the world, including the

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...

, the civil law,

socialist law Socialist law or Soviet law denotes a general type of legal system which has been (and continues to be) used in socialist and formerly socialist states. It is based on the civil law system, with major modifications and additions from Marxis ...

Canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...

, Jewish Law,

Islamic law Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the ...

Hindu law Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India. Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nat ...

, 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, economic globalization, and democratization.

History

The origins of modern Comparative Law can be traced back to

Gottfried Wilhelm Leibniz Gottfried Wilhelm (von) Leibniz . ( – 14 November 1716) was a German polymath active as a mathematician, philosopher, scientist and diplomat. He is one of the most prominent figures in both the history of philosophy and the history of math ...

in 1667 in his Latin-language book ''Nova Methodus Discendae Docendaeque Iurisprudentiae'' (New Methods of Studying and Teaching Jurisprudence). Chapter 7 (Presentation of Law as the Project for all Nations, Lands and Times) introduces the idea of classifying Legal Systems into several families. Notably, a few years later, Leibniz introduced an idea of Language families. Although every Legal System is unique, Comparative Law through studies of their similarities and differences allows for classification of Legal Systems, wherein Law Families is the basic level of the classification. The main differences between Law Families are found in the source(s) of Law, the role of court precedents, the origin and development of the Legal System.

Montesquieu Charles Louis de Secondat, Baron de La Brède et de Montesquieu (; ; 18 January 168910 February 1755), generally referred to as simply Montesquieu, was a French judge, man of letters, historian, and political philosopher. He is the princi ...

is generally regarded as an early founding figure of comparative law. His comparative approach is obvious in the following excerpt from Chapter III of Book I of his masterpiece, '' De l'esprit des lois'' (1748; first translated by Thomas Nugent, 1750): Also, in Chapter XI (entitled 'How to compare two different Systems of Laws') of Book XXIX, discussing the French and English systems for punishment of false witnesses, he advises that "to determine which of those systems is most agreeable to reason, we must take them each as a whole and compare them in their entirety." Yet another place where Montesquieu's comparative approach is evident is the following, from Chapter XIII of Book XXIX: The modern founding figure of comparative and

anthropological Anthropology is the scientific study of humanity, concerned with human behavior, human biology, cultures, societies, and linguistics, in both the present and past, including past human species. Social anthropology studies patterns of behav ...

jurisprudence was Sir Henry Maine, a British jurist and legal historian. In his 1861 work '' 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

Eastern Eastern may refer to: Transportation *China Eastern Airlines, a current Chinese airline based in Shanghai *Eastern Air, former name of Zambia Skyways *Eastern Air Lines, a defunct American airline that operated from 1926 to 1991 *Eastern Air Li ...

and

West West or Occident is one of the four cardinal directions or points of the compass. It is the opposite direction from east and is the direction in which the Sun sets on the Earth. Etymology The word "west" is a Germanic word passed into some ...

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 , mottoeng = The Lord is my light , established = , endowment = £6.1 billion (including colleges) (2019) , budget = £2.145 billion (2019–20) , chancellor ...

in 1869, with Maine taking up the position of professor. 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.

Purpose

Comparative law is an academic discipline that involves the study of legal systems, including their constitutive elements and how they differ, and how their elements combine into a system. Several disciplines have developed as separate branches of comparative law, including comparative

constitutional law Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in fe ...

, comparative

administrative law Administrative law is the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as "regulations"), ad ...

, comparative civil law (in the sense of the law of

tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...

contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...

property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...

and

obligations An obligation is a course of action that someone is required to take, whether legal or moral. Obligations are constraints; they limit freedom. People who are under obligations may choose to freely act under obligations. Obligation exists when ther ...

), comparative commercial law (in the sense of business organisations and trade), and comparative criminal law. Studies of these specific areas may be viewed as micro- or macro-comparative legal analysis, i.e. detailed comparisons of two countries, or broad-ranging studies of several countries. Comparative civil law studies, for instance, show how the law of private relations is organised, interpreted and used in different systems or countries. The purposes of comparative law are: * To attain a deeper knowledge of the legal systems in effect * To perfect the legal systems in effect * Possibly, to contribute to a unification of legal systems, of a smaller or larger scale (cf. for instance, the

UNIDROIT UNIDROIT (formally, the International Institute for the Unification of Private Law; French: ''Institut international pour l'unification du droit privé'') is an intergovernmental organization whose objective is to harmonize international privat ...

initiative)

Relationship with other legal subjects

Comparative law is different from general

jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...

(i.e. legal theory) and from

public In public relations and communication science, publics are groups of individual people, and the public (a.k.a. the general public) is the totality of such groupings. This is a different concept to the sociological concept of the ''Öffentlichk ...

and private international law. However, it helps inform all of these areas of normativity. For example, comparative law can help international legal institutions, such as those of the

United Nations System The United Nations System consists of the United Nations' six principal organs (the General Assembly, Security Council, Economic and Social Council (ECOSOC), Trusteeship Council, International Court of Justice (ICJ), and the UN Secretariat) ...

, 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 The term legal transplant was coined in the 1970s by the Scottish legal scholar W.A.J. 'Alan' Watson to indicate the moving of a rule or a system of law from one country to another (A. Watson, ''Legal Transplants: An Approach to Comparative Law'', ...

, i.e. the transplanting of law and legal institutions from one system to another. The notion of

was coined by Alan Watson, one of the world's renowned legal scholars specializing in comparative law. Also, the usefulness of comparative law for

sociology of law The sociology of law (legal sociology, or law and society) is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies. Some see sociology of law as belonging "necessarily" to the field of sociology, ...

and

law and economics Law and economics, or economic analysis of law, is the application of microeconomic theory to the analysis of law, which emerged primarily from scholars of the Chicago school of economics. Economic concepts are used to explain the effects of law ...

(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: * How do regulations in different legal systems really function in the respective societies? * Are legal rules comparable? * How do the similarities and differences between legal systems get explained?

Classifications of legal systems

David

René David proposed the classification of legal systems, according to the different ideology inspiring each one, into five groups or families: *

Western Western may refer to: Places *Western, Nebraska, a village in the US *Western, New York, a town in the US *Western Creek, Tasmania, a locality in Australia *Western Junction, Tasmania, a locality in Australia *Western world, countries that id ...

laws, a group subdivided into the: ** Civil law subgroup (whose jurisprudence is based on post-classical

Roman Law Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor Ju ...

) ** Common law subgroup (originating in English law) * Soviet Law *

Muslim Law Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the ...

Hindu Law Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India. Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nat ...

* Chinese Law * Jewish Law Especially with respect to the aggregating by David of the Civil and Common laws into a single family, David argued that the antithesis between the Common law and Civil law systems, is of a technical rather than of an ideological nature. Of a different kind is, for instance, the antithesis between, say, Italian and American laws, and of a different kind than between the Soviet, Muslim, Hindu, or Chinese laws. According to David, the Civil law legal systems included those countries where legal science was formulated according to Roman law, whereas Common law countries are those dominated by judge-made law. The characteristics that he believed uniquely differentiate the Western legal family from the other four are: * liberal democracy * capitalist economy * Christian religion

Arminjon, Nolde, and Wolff

Arminjon, Nolde, and Wolff 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: * 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 civil'' of year 1804 as a model; this includes countries and jurisdictions such as Italy, Portugal, Spain, Romania,

Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...

, various South American states such as Brazil,

Quebec Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirtee ...

, Saint Lucia, the Ionian Islands, Egypt, and

Lebanon Lebanon ( , ar, لُبْنَان, translit=lubnān, ), officially the Republic of Lebanon () or the Lebanese Republic, is a country in Western Asia. It is located between Syria to Lebanon–Syria border, the north and east and Israel to Blue ...

* German group * Scandinavian group, comprising the laws of Denmark, Norway, Sweden, Finland, and Iceland * English group, including, ''inter alia'', England, the United States, Canada, Australia, and New Zealand * Russian group * Islamic group (used in the

Muslim world The terms Muslim world and Islamic world commonly refer to the Islamic community, which is also known as the Ummah. This consists of all those who adhere to the religious beliefs and laws of Islam or to societies in which Islam is practiced. I ...

) * Hindu group

Zweigert and Kötz

Konrad Zweigert and Hein Kötz propose a different, multidimensional methodology for categorizing laws, i.e. for ordering families of laws. They maintain that, to determine such families, five criteria should be taken into account, in particular: the historical background, the characteristic way of thought, the different institutions, the recognized sources of law, and the dominant ideology. Using the aforementioned criteria, they classify the legal systems of the world into six families: * Roman family * German family * Common law family * Nordic family * Family of the laws of the

Far East The ''Far East'' was a European term to refer to the geographical regions that includes East and Southeast Asia as well as the Russian Far East to a lesser extent. South Asia is sometimes also included for economic and cultural reasons. The ter ...

(China and Japan) * Religious family (Jewish, Muslim, and Hindu law) Up to the second German edition of their introduction to comparative law, Zweigert and Kötz also used to mention Soviet or socialist law as another family of laws.

Glenn

H. Patrick Glenn''Legal Traditions of the World'' - Oxford University Press, 2000 proposed the classification of legal systems places national laws in the broader context of major legal tradition: * Chthonic (or indigenous) law *

Talmudic law Talmudic law is the law that is derived from the Talmud based on the teachings of the Talmudic Sages. * See Talmud or Talmudical Hermeneutics Talmudical hermeneutics (Hebrew: מידות שהתורה נדרשת בהן) defines the rules and metho ...

* Confucianism law * Civil law *

Common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...

Professional associations

American Association of Law Libraries The American Association of Law Libraries "is a nonprofit educational organization with over 5,000 members nationwide. AALL's mission is to promote and enhance the value of law libraries to the legal and public communities, to foster the professio ...

* American Society of Comparative Law * International Association of Judicial Independence and World Peace * International Association of Procedural Law *

International Law Association The International Law Association (ILA) is a non-profit organisation based in Great Britain that — according to its constitution — promotes "the study, clarification and development of international law" and "the furtherance of international ...

Comparative law periodicals

* American Journal of Comparative Law *

German Law Journal The ''German Law Journal'' is a peer-reviewed, online-only open access law journal reporting on the developments in German, European and international jurisprudence. It is published by Washington & Lee University School of Law. Publication of t ...

* Journal of Comparative Legislation and International Law
The Journal of Comparative Law

References

Notes

Citations

Sources

*Billis, Emmanouil. 'On the methodology of comparative criminal law research: Paradigmatic approaches to the research method of functional comparison and the heuristic device of ideal types', ''Maastricht Journal of European and Comparative Law'' 6 (2017): 864–881. * H Collins, 'Methods and Aims of Comparative Contract Law' (1989) 11 OJLS 396. * Cotterrell, Roger (2006). ''Law, Culture and Society: Legal Ideas in the Mirror of Social Theory''. Aldershot: Ashgate. * De Cruz, Peter (2007) ''Comparative Law in a Changing World'', 3rd edn (1st edn 1995). London: Routledge-Cavendish. * Donahue, Charles (2008) 'Comparative Law before the "Code Napoléon"' in ''The Oxford Handbook of Comparative Law''. Eds. Mathias Reimann & Reinhard Zimmermann. Oxford: Oxford University Press. * Glanert, Simone (2008) 'Speaking Language to Law: The Case of Europe', ''Legal Studies'' 28: 161–171. * Hamza, Gabor (1991). ''Comparative Law and Antiquity''. Budapest: Akademiai Kiado. * Husa, Jaakko. ''A New Introduction to Comparative Law''. Oxford–Portland (Oregon): Hart, 2015. *

O Kahn-Freund Sir Otto Kahn-Freund QC (17 November 1900 – 16 August 1979) was a scholar of labour law and comparative law. He was a professor at the London School of Economics and the University of Oxford. Biography Kahn-Freund was born in Frankfurt am ...

, 'Comparative Law as an Academic Subject' (1966) 82 LQR 40. * Kischel, Uwe. ''Comparative Law''. Trans. Andrew Hammel. Oxford: Oxford University Press, 2019. * Legrand, Pierre (1996). 'European Legal Systems Are Not Converging', ''International and Comparative Law Quarterly'' 45: 52–81. * Legrand, Pierre (1997). 'Against a European Civil Code', ''Modern Law Review'' 60: 44–63. * Legrand, Pierre and Roderick Munday, eds. (2003). ''Comparative Legal Studies: Traditions and Transitions''. Cambridge: Cambridge University Press. * Legrand, Pierre (2003). 'The Same and the Different', in ''Comparative Legal Studies: Traditions and Transitions''. Eds. Pierre Legrand & Roderick Munday. Cambridge: Cambridge University Press. * Leibniz, Gottffried Wilhelm (2017) ''The New Method of Learning and Teaching Jurisprudence... Translation of the 1667 Frankfurt Edition''. Clark, NJ: Talbot Publishing. * Lundmark, Thomas, Charting the divide between common and civil law, Oxford University Press, 2012. * MacDougal, M.S. 'The Comparative Study of Law for Policy Purposes: Value Clarification as an Instrument of Democratic World Order' (1952) 61 Yale Law Journal 915 (difficulties and requirements of good comparative law). * . * Menski Werner (2006) ''Comparative Law in a Global Context: the Legal Traditions of Asia and Africa''. Cambridge: Cambridge University Press. * Orucu, Esin and David Nelken, eds. ''Comparative Law: A Handbook''. Oxford: Hart, 2007. * Reimann, Mathias & Reinhard Zimmermann, eds. ''The Oxford Handbook of Comparative Law'', 2nd edn. Oxford: Oxford University Press, 2019 (1st edn. 2008). * Samuel, Geoffrey. ''An Introduction to Comparative Law Theory and Method''. Oxford: Hart, 2014. * Siems, Mathias. ''Comparative Law''. Cambridge: Cambridge University Press, 2014. * Watson, Alan. ''Legal Transplants: An Approach to Comparative Law'', 2nd edn. University of Georgia Press, 1993. * Zweigert, Konrad & Hein Kötz. ''An Introduction to Comparative Law'', 3rd edn. Trans. Tony Weir. Oxford: Oxford University Press, 1998. ;Legal systems * . * Glendon, Mary Ann, Paolo G. Carozza, & Colin B. Picker. ''Comparative Legal Traditions in a Nutshell'', 4th edn. West Academic Publishing, 2015. * 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). ;Fields * Bignami, Fracesca & David Zaring, eds. ''Comparative Law and Regulation: Understanding the Global Regulatory Process''. Edward Elgar, 2018. * Graziano, Thomas Kadner. ''Comparative Contract Law: Cases, Materials and Exercises'', 2nd edn. Edward Elgar, 2019. * Kozolchyk, Boris. ''Comparative Commercial Contracts: Law, Culture and Economic Development'', 2nd edn. West Academic Publishing, 2018. * Nelken, David, ed. ''Contrasting Criminal Justice: Getting from Here to There''. Aldershot: Ashgate/Dartmouth, 2000. * Roberts, Anthea et al., eds. ''Comparative International Law''. Oxford: Oxford University Press, 2018.

External links

Alan Watson Foundation

Eason Weinmann Center for Comparative Law at Tulane University Law School

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{{Authority control Academic disciplines Jurisprudence