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Comparative law

Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal "systems" (or "families") in existence in the world, including the common law, the civil law, socialist law, Canon law, Jewish Law, 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, economic globalization and democratization.

The origins of modern comparative law can be traced back to 18th century Europe, although, prior to that, legal scholars had always practiced comparative methodologies.

Montesquieu 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):

[T]he political and civil laws of each nation ... should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another.

They should be in relation to the nature and principle of each government: whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institutions.

They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.

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:

  • 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 initiative)
  • 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?
  • liberal democracy
  • capitalist economy
  • Christian religion
  • 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.
  • David, René; Brierley, John E. C. (1985). Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law. London: Stevens. ISBN . 
  • 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 Reimann, Mathias and Zimmermann, Reinhard (eds.) The Oxford Handbook of Comparative Law. Oxford: Oxford University Press.
  • Glanert, Simone (2008) 'Speaking Language to Law: The Case of Europe', Legal Studies 28: 161–171.
  • Glenn, H. Patrick (2010) Legal Traditions of the World, 4th edn (1st edn 2000). Oxford: Oxford University Press.
  • Hamza, Gabor (1991) "Comparative Law and Antiquity", Budapest: Akademiai Kiado
  • O Kahn-Freund, ‘Comparative Law as an Academic Subject’ (1966) 82 LQR 40
  • 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 Munday, Roderick (2003) (eds.) Comparative Legal Studies: Traditions and Transitions. Cambridge: Cambridge University Press.
  • Legrand, Pierre (2003) 'The Same and the Different' in Legrand, Pierre and Munday, Roderick (eds.) Comparative Legal Studies: Traditions and Transitions. Cambridge: Cambridge University Press.
  • 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).
  • Mattei, Ugo; Ruskola, Teemu (2009). Schlesinger's Comparative Law. London: Foundation. ISBN . 
  • Menski, Werner (2006) Comparative Law in a Global Context: the Legal Traditions of Asia and Africa. Cambridge: Cambridge University Press.
  • Nelken, David (2000) (ed.) Contrasting Criminal Justice: Getting from Here to There. Aldershot: Ashgate/Dartmouth.
  • Orucu, Esin and Nelken, David (2007) (eds.) Comparative Law: A Handbook. Oxford: Hart.
  • Reimann, Mathias and Zimmermann, Reinhard (2008) (eds.) The Oxford Handbook of Comparative Law. Oxford: Oxford University Press.


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