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
Table of Contents
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 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:
- Acquis Group: European Research Group on Existing EC Private Law
- Commission on European Family Law (copy the link into browser to open it), based at the University of Utrecht. Its monograph series European Family Law (EFL) is published by Intersentia in Antwerp.
- European Group on Tort Law in association with the European Centre of Tort and Insurance Law in Vienna. Its website is hosted at the University of Girona, Spain.
- Study Group on a European Civil Code, chaired by Professor Christian von Bar at the University of Osnabrück.
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:
- BUSSANI, M. and MATTEI, U., eds. The common core of European private law. Kluwer Law International, 2002.
- SMITS, J. The making of European private law: toward a ius commune Europaeum as a mixed legal system. Intersentia, 2002. (A translation of his Europees privaatrecht in wording)
- HESSELINK, M., ed. The politics of a European civil code. Kluwer Law International, 2006 (collection of papers from a conference held in January 2005).
- CAFAGGI, F. and MUIR WATT, H., eds. Making European Private Law: Governance Design. Edward Elgar, 2008.
- MICKLITZ, Hans-W. and CAFAGGI, Fabrizio, eds. European private law after the Common Frame of Reference. Edward Elgar, 2010.
- DEVENNEY, J. and KENNY, Mel B., eds. The transformation of European private law: harmonisation, consolidation, codification or chaos? Cambridge University Press, 2013.
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)
- Common Law
- “Other conceptions of law and the social order” – Muslim, Indian, Far East, Africa/Madagascar
ZWEIGERT and KÖTZ
- Germanic (Germany and Switzerland)
- Far East
- 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; 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.
· 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.
- American Journal of Comparative Law 1952 - (American Society of Comparative law)
- Boletín Mexicano de Derecho Comparado 1948- (Universidad Nacional Autónoma de México) (online from 1968)
- Annuario di Diritto Comparato e di Studi Legislativi Yearbook of Comparative Law And Legislative Studies 1927 -
- Comparative and International Law Journal of Southern Africa 1968 – (University of South Africa)
- Comparative Law Yearbook of International Business 1978- (formerly Comparative Law Yearbook). (Center for International Legal Studies, Salzburg)
- European Journal of Comparative Law and Governance (formerly) 1997- (Netherlands Comparative Law Association).
- International and Comparative Law Quarterly 1952- (British Institute of International and Comparative Law)
- Journal of Comparative Law 2006- (Association for Comparative Legal Studies Ltd.) Edited by Nicholas Foster of the School of Oriental and African studies, University of London. The first issue includes a collection of reviews of Glenn’s Legal Traditions mentioned above. (Some content available free online.)
- Oxford University Comparative Law Forum 2000- An electronic journal and discussion forum edited by members of the Oxford Law Faculty.
- Rabels Zeitschrift für ausländisches und internationales Privatrecht 1927- (Max-Planck Institut für ausländisches und internationales Privatrecht)
- Revue de droit international et de droit comparé 1949- (originally from the Institut belge de Droit Comparé ; published by Bruylant)
- Revue internationale de droit comparé 1949- (Société de Législation Comparée)
- 1951– (Universidade do Minho)
- Uniform Law Review / Revue de Droit Uniforme 1973 – (International Institute for the Unification of Private Law; journal formed by the union of Jurisprudence de droit uniforme and Unification du droit).
- Zeitschrift für vergleichende Rechtswissenschaft 1878-
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.
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.
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.
- Australia: Centre for Comparative Constitutional Studies, 1987, and Institute for International Law and the Humanities, 2005 (successor to the Institute for International and Comparative Law, established in 1999) University of Melbourne; Centre for Public, International and Comparative Law, 2003, University of Queensland.
- Austria: Österreichische Gesellschaft für Rechtsvergleichung, 2002; Institut für Europarecht, Internationales Recht und Rechtsvergleichung, University of Vienna.
- Belgium: Centre de Droit Comparé, d’Histoire du Droit et d’Anthropologie Juridique, 1991, Université Libre de Bruxelles; Centre Interuniversitaire de Droit Comparé, 1958.
- Brazil: Instituto de Direito Comparado Luso-Brasileiro, 1981.
- Canada: Institute of Comparative Law, 1965, McGill University; Paul-André Crépeau Research Centre for Private and Comparative Law (formerly the Quebec Research Centre of Private and Comparative Law), 1975, McGill University; Canadian Association of Comparative Law; Association Québécoise de Droit Comparé, 1960.
- China: Chinese Society of Comparative Law.
- Denmark: Danske Komité for Komparativ Ret.
- France: Société de Législation Comparée, 1869; Institut de Droit Comparé de Paris, 1931, based at the University of Paris Panthéon Assas (Paris II); Institut de Droit Comparé Edouard Lambert, 1920; Centre Français de Droit Comparé, 1951. There are many more French research centres – see IALL Handbook (above).
- Germany: Gesellschaft für Rechtsvergleichung, 1950, University of Freiburg; Max-Planck Institut für ausländisches und internationales Privatrecht, Hamburg, 1926; Max-Planck Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg, Berlin, 1924.
- Greece: Hellenic Institute of International and Foreign Law, 1939.
- Hong Kong: Centre for Chinese and Comparative Law, 1993, City University of Hong Kong.
- India: National Committee of Comparative Law.
- Ireland: Irish Society of Comparative Law, 2008.
- Italy: Associazione Italiana di Diritto Comparato, 1958; Associazione Diritto Pubblico Comparato ed Europeo, 2001
- Japan: Japan Society of Comparative Law, 2003; Institute of Comparative Law in Japan, 1948, Chuo University; Waseda University Institute of Comparative Law, 1958.
- Norway: Norwegian Association for Comparative Law, 2007, based at the University of Oslo.
- Mexico: Instituto de Investigaciones Juridicas (formerly Instituto de Derecho Comparado), 1940, Universidad Nacional Autonoma de Mexico (UNAM); Academia Mexicana de Derecho Internacional Privado y Comparado, 1968.
- Netherlands: Nederlandse Vereniging voor Rechtsvergelijking (Netherlands Comparative Law Association), founded 1968 - see Electronic Journal of Comparative Law web pages; E.M. Meijers Institute for Legal Research, 1997, Universiteit Leiden.
- New Zealand: New Zealand Association of Comparative Law, 1995.
- Portugal: Gabinete de Documentação e Direito Comparado, 1980.
- Russia: Institute of Legislation and Comparative Law under the Government of the Russian Federation, founded 1925.
- Serbia: Institut za Oporedno Pravo (Institute of Comparative Law), founded 1956.
- South Africa: Centre for Foreign and Comparative Law, University of South Africa, Pretoria, founded 1964.
- Spain: Instituto de Derecho Comparado, 1951, Universidad Complutense de Madrid; Instituto de Derecho Publico Comparado „Manuel García Pelayo", 1997, Universidad Carlos III de Madrid; Institute of European and Comparative Private Law (formerly the Observatory of European and Comparative Private Law) , 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, 1995, University of Oxford; Institute of Global Law, 2000, University College London.
- United States: American Foreign Law Association, founded 1925; American Society of Comparative Law, founded 1951; Parker School of Foreign and Comparative Law, based at Columbia University, New York, founded 1931; Eason Weinmann Center of Comparative Law, Tulane Law School, founded 1981. There are many more US research centres – see IALL Handbook (above).
· 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.
- International Encyclopaedia of Comparative Law. 1971- , now published by Martinus Nijhoff. 17 volumes; volume 1: National Reports, and volume 2: The legal systems of the world: their comparison and unification, provide useful introductions.
- International Encyclopedia of Laws. A series of multi-volume loose-leaf titles published by Wolters Kluwer. Each of the 25 titles can be bought separately. Also available online, by subscription. Modern Legal Systems Cyclopedia. General editor K.R. Redden. W.S. Hein, 1984- Multi-volume loose-leaf publication.
- Central and East European Legal Materials. Edited by Vratislav Pechota. Juris Publishing, 1990- . Loose-leaf in 13 volumes.
- Worldlii: World Legal Information Institute. This is part of a worldwide group of related resource collections which originated with AUSTLII, the Australasian Legal Information Institute. As well as a collection of freely available full-text databases of primary sources for numerous countries, there is a catalogue of links to foreign law websites. It is possible to browse by country, region or subject.
- Guide to Law Online, the Library of Congress’s annotated guide to sources of information on government and law for the nations of the world. It includes links to guides in the GlobaLex series.
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.
· 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:
- World intellectual property rights and remedies, edited by D. Campbell. Thomson Reuters. In six 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), in the form of the IBFD Tax Research Platform.