UPDATE: Comparative Law

 

By Paul Norman

Update by Hester Swift

 

Hester Swift is Foreign and International Law Librarian at the Institute of Advanced Legal Studies from London, United Kingdom.

 

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.

 

Published June 2016

(Previously updated by Paul Norman in Aug. 2007, and by Hester Swift in Feb. 2009 and in June/July 2013)

See the Archive Version!

 

Table of Contents

1.     What is Comparative Law?

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.

 

2.     Comparative Law, Conflict of Laws and Unification / Harmonization of Law

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 almost 40 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. Its most notable convention is the Convention relating to a Uniform Law on the International Sale of Goods, 1964. Under instruments, researches may find a list of conventions organized by area of law (i.e. agency, capital markets, commercial contracts, contract farming, cultural property, factoring, franchising, international sales, leasing, security interests, succession, transnational civil procedure, and transport). Each category offers access to the relevant convention in full text often identifying the overview of the convention, official and other languages (when applicable), official commentary, status, preparatory work, depository information, and relevant selected bibliography.

 

By the nature of its continuing development, the European Union is the centre of harmonization activity in Europe. The main thrusts are in the private law areas of family law, contracts, sales, insurance, trusts and movable property. Relevant research centres include:

 

 

A six-volume draft ‘Common Frame of Reference’ (DCFR) has been produced by the Acquis Group and the Study Group on a European Civil Code:

 

von BAR, C. and CLIVE, E., eds., Principles, definitions and model rules of European private law: draft common frame of reference (DCFR). Oxford University Press, 2010.

 

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, 4th edition, edited by Arthur Hartkamp and others. Kluwer Law International, 2010.

 

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:

 

DAVID

 

 

ZWEIGERT and KÖTZ

 

 

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.

 

3.     Print Sources

 

3.1.   Books

 

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; Cambridge reprinted the first edition (1946) in December 2015.

 

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 7th (2009) edition and available from Thomson Reuters under the title Schlesinger’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, 3rd. Routledge-Cavendish, 2007.

·       GLENDON, M., et al, Comparative legal traditions: text, materials, and cases on western law, 4th ed. West Academic, 2014.

·       GLENN, H P. Legal traditions of the world, 5th ed. Oxford University Press, 2014 (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.

 

3.2.  Journals

 

 

A more extensive list of comparative law journals has been compiled by Teresa Miguel and others: “Comparative Law:  Academic Perspectives”, Appendix A, in The IALL International Handbook of Legal Information Management, Danner, R. A., and Winterton, J., (eds.), Ashgate, 2011.

 

4.     Organizations and Research Institutes

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.   It produces general and national reports, the national reports being prepared by national committees. The reports are issued by various publishers, usually in the respective country (for example, Belgian national reports are usually published by Bruylant). Publication details of recent reports appear on the Academy’s website under Publications. 

 

5.     Selected Organizations and Institutes by Country

For a fuller list of comparative law organisations and research centres, see “Comparative Law:  Academic Perspectives ”,  Appendices B and C, in The IALL International Handbook of Legal Information Management, Danner, R. A., and Winterton, J., (eds.), Ashgate, 2011. For national organisations, see also the International Academy of Comparative Law’s list of national committees and the American Society of Comparative Law’s list of Corresponding Foreign Institutional Members.

 

·       Argentina: Asociación Argentina de Derecho Comparado, 1946; Instituto de Derecho Comparado ‘Enrique Martínez Paz’, Academia Nacional de Derecho y Ciencias Sociales de Córdoba.

 

6.     Research Guides to Foreign and Comparative Law

 

·       JuriGlobe, 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. Published by Transnational Publishing in 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.

 

7.     Published Collections Relating to Several Jurisdictions

 

7.1.   Print

 

 

7.2.  Web Resources

 

 

8.    Specific Legal Subjects

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’s Global Legal Information Catalogue, based on its own holdings and linking to specific LoC catalogue entries. One can browse by jurisdiction, subject or title, or search by keyword, jurisdiction, subject and/or author.

 

Constitutional Law:

 

·       BLAUSTEIN, A. P., FLANZ, G. H., GROTE, R. and WOLFRUM, R., Constitutions of the countries of the world: a series of updated texts, constitutional chronologies and annotated bibliographies. OUP USA, 1971- . Multi-volume loose-leaf; also available online, by subscription.

·       World Constitutions Illustrated: a module of the HeinOnline service, offering current and historical constitutions, bibliographies and links to commentary.

 

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, ed.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, which is now called WIPO-Lex (formerly CLEA – Collection of Laws for Electronic Access).

 

Printed sources for intellectual property include:

 

 

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), in the form of the IBFD Tax Research Platform.