UPDATE: Comparative Law
By Paul Norman
Paul Norman was senior reference librarian at the Institute of Advanced Legal Studies, University of London, from 1970 to 2006. He has contributed chapters to the Manual of Law Librarianship (1976 and 1987), Dane & Thomas: How to use a Law Library (2001) and occasional articles in Legal Information Management and its predecessor the Law Librarian.
Updated by Hester Swift, Foreign and International Law Librarian at the Institute of Advanced Legal Studies since February 2007.
7.2. Web Resources
What is meant by comparative law? In the strict sense, it is the theoretical study of legal systems by comparison with each other, and has a tradition going back over a century. In recent years it has gained in practical importance for two reasons. The first is the increased globalization of world trade, involving the need to conduct business in unfamiliar legal systems. The second is the move towards harmonization of laws, and more recently towards codification within the European Union, where several legal traditions coexist. More loosely, there are publications and Internet resources that assemble legal materials from several jurisdictions, without necessarily undertaking comparisons, but they can be seen as “tools of the trade” for comparative lawyers.
These three topics are distinct but closely related.
Conflict of laws, also referred to as private international law, concerns national or domestic legal rules which are applicable in situations involving the law of another jurisdiction. This may be another country or, in the case of federations, another state.
Unification of law is a process that grew out of the need to simplify conflict of law rules, often by international conventions, and has acted on both the national and international levels. The numerous uniform laws applicable in the United States, most notably the Uniform Commercial Code, are obvious examples.
There are two main sources of international uniform law.
The Hague Conference on Private International Law first convened in 1893, and has prepared over 30 conventions on subjects such as international civil procedure including enforcement of foreign judgments, family law including marriage, protection of children and succession, and products liability.
UNIDROIT, the International Institute for the Unification of Private Law, was set up in 1926 as an organ of the League of Nations, but was re-established in 1940 under a new statute. About 60 nations are members. It’s most notable convention is the Convention relating to a Uniform Law on the International Sale of Goods, 1964. There is a list of conventions on the website, with links to full text.
By the nature of its continuing development, the European Union is the centre of harmonization activity. The main thrusts are in the private law areas of family law, contracts, sales, insurance, trusts and movable property. Relevant centres of activity include:
A thorough exposition of the movement towards a European Civil Code is contained in a collection of contributions from several legal scholars: Towards a European Civil Code, 3rd edition, edited by Arthur Hartkamp and others. Kluwer Law International, 2004.
Other works on European harmonization include:
For a much fuller discussion of uniform law resources, see Duncan Alford’s Guide on the Harmonization of International Commercial Law on this website.
The world’s legal systems are a product of history, largely by conquest and colonization, but also in modern times by reasoned and deliberate adoption by one state of at least part of the legal framework of another. Two important examples are the modernization of Japanese and Egyptian law, and more recently the adoption of western models of commercial, financial and property law in the former socialist countries of Eastern Europe.
We can speak of “families” of legal systems, though increasingly the term “traditions” is being used, highlighting their historical development. The best-known distinction is that between the Civil Law and the Common Law traditions. Civil Law systems have their foundations in Roman law, but are generally based on codifications produced in Europe in the 19th Century. The most important are the French Civil Code of 1804 and the German Civil Code of 1900. Each was the result of long and careful study by appointed commissions, but they are founded on differing traditions and theory.
Traditional classifications offered by the two classic writers on comparative law (see Print Sources, below) are:
Socialist (more recently Russian)
“Other conceptions of law and the social order” – Muslim, Indian, Far East, Africa/Madagascar
ZWEIGERT and KÖTZ
Germanic (Germany and Switzerland)
Religious – Islamic, Hindu
More recently there has been increasing interest in customary (or chthonic) law. Glenn (see below) gives a new list with a new emphasis: Chthonic, Talmudic, Islamic, Hindu, Asian, Civil law and Common law.
A relatively new object of study are “mixed jurisdictions,” where elements of more than one system are in operation. These have not fit easily into the “accepted” classifications. Examples are Louisiana, Quebec, Scotland, South Africa and Sri Lanka.
In the first part of this article I shall mention sources on “real” comparative law, and in the second part sources that collect legal materials from many jurisdictions.
The main classic European theoretical works on comparative law are:
· DAVID, R. and JAUFFRET-SPINOSI, C., Les grands systèmes de droit contemporains, 11e éd. Paris, Dalloz, 2002. The book has been translated into numerous languages. An English version of the 6th edition of 1974 was published by Sweet and Maxwell as Major legal systems in the world today, 3rd edition in 1985 (now out of print).
· ZWEIGERT, K. and KÖTZ, H., Einführung in die Rechtsvergleichung, 3e Aufl. Tübingen, Mohr, 1996. English translation: Introduction to comparative law, translated from the German by Tony Weir. Oxford, Oxford University Press, 1998 (still in print).
The seminal British author was Harold C. Gutteridge. The second edition of his Comparative law, originally published by Cambridge University Press in 1949, was reprinted by Wildy in 1974.
In the United States, the study of comparative law was pioneered by Rudolf Schlesinger. His Comparative law: cases, text, materials, first published in 1950, is now in its 6th (1998) edition and available from West under the title Schlesinger, Baade, Herzog and Wise's Comparative Law. While at Cornell University, Schlesinger contributed to the discussions around the drafting of the U.S. Uniform Commercial Code.
Of similar standing is Arthur T. Von Mehren, whose work The civil law system: cases and materials for the comparative study of law appeared in 1957. A second edition, with James R. Gordley, was published in 1977 by Little, Brown.
Other titles include:
· BOGDAN, M. Comparative law. Kluwer Law and Taxation, 1994.
· De CRUZ, P. A modern approach to comparative law. Kluwer, 1993.
· De CRUZ, P. Comparative law in a changing world, 2nd ed. Cavendish, 1999.
· GLENN, H P. Legal traditions of the world, 3rd ed. Oxford University Press, 2007 (1st edition gained the Canada Prize, International Academy of Comparative Law, 1998)
· HARDING, A. and ÖRÜCÜ, E. (editors) Comparative law in the 21st Century. Kluwer Law International, 2002.
· LEGRAND, P. and MUNDAY, R. (editors) Comparative legal studies: traditions and transitions. Cambridge University Press, 2003.
· MERRYMAN, J.H. and PÉREZ-PERDOMO, R., The civil law tradition: an introduction to the legal systems of Europe and Latin America, 3rd ed. Stanford University Press, 2007.
· RILES, A. Rethinking the masters of comparative law. Hart Publishing, 2001.
· SACCO, R. La comparaison juridique au service de la connaissance du droit. Economica, 1991. (Abridged version in English: 39 American Journal of Comparative Law 1; 343 (1991))
· VARGA, C. European legal cultures Dartmouth Publishing, 1997.
· WATSON, A. Legal transplants: an approach to comparative law. Edinburgh, Scottish Academic Press, 1974, reprinted with new afterword 1993 by University of Georgia Press. The titles of the first three chapters are interesting: Comparative law as an academic discipline, The perils of comparative law, and The virtues of comparative law.
· ZIMMERMANN, R. Mixed legal systems in comparative perspective: property and obligations in Scotland and South Africa. Oxford University Press, 2003.
· ZIMMERMAN, R. and REIMANN, M. The Oxford handbook of comparative law. Oxford University Press, 2006. Contains several essays by major current scholars in the field.
The International Academy of Comparative Law, founded at The Hague in 1924, organizes the International Congress of Comparative Law, which takes place every four years. The next Congress will take place in Utrecht in 2006.The general reports of the 1998 congress bear the illuminating title Comparative Law facing the 21st Century. There are both general and national reports, the national reports being prepared by national committees. They are issued by various publishers, usually in the respective country (for example, Belgian national reports are usually published by Bruylant). Publication details of the reports of the Brisbane (2002), Bristol (1998) and Athens (1994) congresses appear on the Academy’s website under Publications
Australia: Centre for Comparative Constitutional Studies and Institute for International Law and the Humanities, University of Melbourne; Centre for Public, International and Comparative Law, University of Queensland, founded 2003.
Canada: Institute of Comparative Law, McGill University; COMPARE: Canadian Bijuralism: Studies in Comparative Law: a joint study project of six Canadian law schools, based at the University of Ottawa Faculty of Law, and focusing on the Common Law and Civil Law traditions in Canada.
France: Société de Législation Comparée, founded in 1869 ; Institut de Droit Comparé de Paris, founded 1931 and based at the University of Paris Panthéon Assas (Paris II); Institut de Droit Comparé Edouard Lambert, founded 1920 and based at the University Jean Moulin 3, Lyon.
Germany: Max-Planck Institut für ausländisches und internationales Privatrecht (Max-Planck Institute for Foreign Private Law and Private International law), Hamburg, founded 1926 and became a Max-Planck institute in 1949; Max-Planck Institut für ausländisches öffentliches Recht und Völkerrecht (Max-Planck Institute for Comparative Public Law and International Law), Heidelberg, founded 1924 in Berlin; Gesellschaft für Rechtsvergleichung founded in 1950 and based at the University of Freiburg.
Italy: Associazione Italiana di Diritto Comparato, founded 1958;Centre for Comparative and Foreign Law Studies housed at the UNIDROIT headquarters in Rome, a joint initiative of UNIDROIT and the University “La Sapienza”, Rome; Istituto di Diritto Comparato “Angelo Sraffa”, Boccone University, Milan.
Mexico: Instituto de Investigaciones Juridicas, Universidad Nacional Autonoma de Mexico (formerly Instituto de Derecho Comparado).
Netherlands: Nederlandse Vereniging voor Rechtsvergelijking (Netherlands Comparative Law Association), founded 1968. Current officers are based at the University of Maastricht. Details can be seen on the Electronic Journal of Comparative Law web pages.
South Africa: Institute of Foreign and Comparative Law, University of South Africa, Pretoria.
Spain: Instituto de Derecho Comparado, Universidad Complutense de Madrid; Instituto de Derecho Publico Comparado, Universidad Carlos III de Madrid; Observatory of European and Comparative Law, a website provided by the University of Girona.
Switzerland: Institut Suisse de Droit Comparé, founded 1982 by the Federal Ministry of Justice.
United Kingdom: British Institute of International and Comparative Law, formed in 1958 by the merger of the Society of Comparative Legislation (1895) and the Grotius Society (1915) - there is a separate British Association of Comparative Law (formerly the United Kingdom National Committee of Comparative Law); Institute of European and Comparative Law, University of Oxford; Institute of Global Law, University College London.
United States: American Society of Comparative Law, founded 1951; Center for Comparative Constitutionalism, University of Chicago; Parker School of Foreign and Comparative Law, based at Columbia University, New York.
· World legal systems from the University of Ottawa provides an overview of the legal systems of the world, with a country listing and a clickable world map that makes a good attempt to reflect the often complicated and diverse influences at work.
· GERMAIN, C. Germain’s transnational law research: a guide for attorneys. Transnational Juris Publications. One loose-leaf binder.
· REYNOLDS, T. and FLORES, A.A. Foreign law: current sources of codes and legislation in jurisdictions of the world. This eight-volume loose-leaf work, published by Fred B. Rothman (now owned by W.S. Hein), provides detailed information about national legal systems and resources. It is also available online (as Foreign Law Guide) on subscription, with links to relevant websites.
Online resources of foreign law on specific subjects are thoroughly covered in Charlotte Bynum’s article: Foreign law: subject law collections on the web on this website.
There are several printed sources that provide the text of national legislation of several countries by subject. For a very useful list, see the Library of Congress Multinational collections database, based on its own holdings and linking to specific catalogue entries. One can browse by jurisdiction or subject, and search by a combination of the two in either order (search for France and get an alphabetical list of subjects, or search for arbitration and get an alphabetical list of countries).
Constitutional law: BLAUSTEIN, A. P. and FLANZ, G. H. Constitutions of the countries of the world: a series of updated texts, constitutional chronologies and annotated bibliographies. Oceana, 1971- . Multi-volume loose-leaf; also available online, by subscription.
Family law: Two major collections deserve a mention, though unfortunately they are not in English. Each is arranged alphabetically by countries of the world, with both commentary and texts of the relevant legislation, usually in parallel vernacular and German.
· BERGMANN, A. and FERID, M. Internationales Ehe- und Kindschaftsrecht. (International marriage and child law) Verlag für Standesamtswesen. Multi-volume loose-leaf; also online, by subscription.
· FERID, M. and FIRSCHING, K. Internationales Erbrecht. (International inheritance law) Beck. Multi-volume loose-leaf.
Labour law: International Encyclopaedia for Labour Law and Industrial Relations (Blanpain). Now part of Kluwer’s International Encyclopaedia of Laws set – see above.
Intellectual property: the World Intellectual Property Organization used to publish national copyright laws as supplements to its journals; this information has now been transferred to a free website: CLEA (Collection of Laws for Electronic Access)
Printed sources for intellectual property include:
· World intellectual property rights and remedies, edited by D. Campbell. Oceana. In five loose-leaf binders.
· World patent law and practice, edited by J.W. Baxter. Matthew Bender. In 3 loose-leaf binders containing commentary, and 16 containing statutes, regulations and treaties.
Tax and commercial laws: the RIA Worldwide Tax Law database. This contains the full text of the tax and commercial laws of over 90 countries, in English. Originally a loose-leaf publication, it is now a subscription database provided by RIA Thomson.
The International Bureau of Fiscal Documentation produces extensive guides to tax systems of the world, printed as loose-leaf sets but now also available online (by subscription).