HISTORY OF COMPARATIVE LAW

By Subrata Lamsal

Genesis and development of study of Comparative law

Started in Paris during 1900 the year of world exhibition and its genesis can be traced back to ancient Greece and roman empire.

CL in ancient Greek city states Plato compared laws of Greek city states

in order to make an ideal constitution by comparison.

Aristotle examined constitution of 153 city states.

Theophrastus used comparative approach to discover the general principles in the various greek legal system.

Comparative law in roman empire

Earlier roman jurists were legal narcissist and believed in superiority of their legal system.

Cicero described all non- roman law as confusing and absurd.

In 3rd-4th century A.D. collatio legum mosaicorum et Romonarum(collection of roman and biblical law) came into existence.

Comparative law in middle ages. In earlier phase canon and roman laws

were prevalent as the then warlords were supporters of law of subjugator.

Although absence of writings on CL two works came into being in england by Fortescue namely De laudibus Legum Angliae and the governance of england.

Compares english and french law.

In the age humanism (period of renaissance)

Lawyers were interested in elegentia juris. In late 17th century Struve and Stryck compared

roman and german law. Baron and Leibniz advanced cause of CL. Bacon stated “the lawyer must free himself from the

vincula of the national legal system before he can estimate its truth worth: the object of judgment (national law) cannot be the standards of judgment.

Hugo Grotius, pufendorf and Montesquieu prominent natural lawyers using method of CL.

Theoretical value of CL recognized but not systemic practice.

In the era of historical school of jurisprudence

Savigny and his followers rejected the study of any other laws except roman and german law erroneously as CL could have been used by them to support their idea that all law is creation of Volksgeist.

Age of legislative CL

Modern CL has 2 distinct origins:a)legislative CLb)theoretical CL

Legislative CL is invocation of foreign law in the process of enactment of new laws

Theoretical CL is the comparison of different legal systems in order to improve the legal knowledge

Legislative CL emerged in mid 19th century germany Earlier codes like the Prussian general land law 1794,

Austrian general civil code 1811 and the french civil code 1804 are based on natural law approach than on comparative studies of foreign law

Contd…

legislative CL became prominent during the movement for the codification and unification of law in germany especially in the area of commercial law

German commercial code 1861 based on comparative study of laws of various reasons of germany but also french commercial code and Dutch commercial code etc

Theoretical CL

It developed continuously Took a long time to be recognized in germany Ludwig Feuerbach rejected Savigny’s view as too

narrow and demanded for comprehensive CL as the basis of universal legal science which collided him with Savigny and historical school

Comparative law had no place in legal science also in historical school of jurisprudence nor conceptual jurisprudence(of the pandectists)

Positivist like bierling said that CL is of little or no use for learning the principles of law

Contd….

In early 20th century positivists rejected the use of CL as a means of discovering the just law

In early 19th century different european countries began the purposive and systematic comparison of different legal systems which was done for practical purposes like reform and improvement of domestic law rather than theoretical, philosophical and scholarly pursuit

In germany

World’s 1st german devoted to CL was MITTERMAIER co-founder of ZACHARIA in 1829

He 1st practiced CL by systematically juxtaposing, comparing and evaluating the laws of various system; not only statutory texts but also law as practiced in the courts and its factual social and political background

In france

In 1834 Foelix started publishing review of foreign legislation inorder to help french lawyers improve their knowledge of law and for the improvement of french law

In 1850 the journal ceased to appear as a result of french lawyers obsession with their national civil code

Comparative legal history chair was founded at the college de france in 1831 and a chair in CL was founded at the faculty of Paris in 1846(comparative criminal law)

In england

Development of CL goes to the privy council the highest court of British empire

In 1838 the publication of Burge’s publication of commentaries of colonial and foreign laws to satisfy the needs of the council

This commentary had 3 objectives:a)to provide comprehensive survey of the sources and rules in all systems of the british empireb)to compare their family law, law of persons, property and successionc)to show the principles of conflict of laws in various topics

Leone Levi an english trader published commercial law of the world in 1854; compared english law with almost every country

To propose the international unification of commercial law on the basis of comprehensive CL

In USA

1800-1850 in this period American law was not child of english law

After war of independence and war of 1812 american disliked everything english including the law

Developing new and suitable rules american jurists reached for roman and european law especially the french doctrine

Judges Joseph story and James Kent laid founding stones in practice of courts and legal teaching including CL

In mid 19th century and aftermath civil war in USA interest in civil law disappeared

Period of historical legal science End of 19th century this school contributed in rejuvenation

of modern CL a/c to Pollock in 1869 CL got full recognition as a new

branch of legal science because in that year society for comparative legislation (societe de legislation compare) and its journal the revue internationale de droit compare (review of international CL) founded in france and still exists

In 1876 the french justice ministry established ‘office de legislation etrangere et de droit international’(office of foreign and international law)

England was influenced a lot by historical school thus historical and comparative jurisprudence were not distinguished

Contd….

Combined chair of historical and comparative jurisprudence was established in oxford and university college of London

In 1894, society of comparative legislation was established. Publishes a journal ‘international and comparative law quarterly’

Increases in economic and commercial contract which required knowledge of foreign laws and even unified laws caused rebirth of interest in CL

CL is concomitant with the preliminary efforts of the international unification of law such as copyright, trademark treaties, the Hague convention on private law and the establishment of universal post union

Paris congress of CL 1900 was starting point in development of CL; it proposed droit commun de l’humanite for pursuit of war unity

After world war 1st

German jurists were shocked to find that the german concepts and methods were inadequate to interpret and apply the treaty of Versailles as it was drafted in foreign language and reflected the legal system of victor nations

CL in germany was a tool of advocacy in litigation rather than objective scholarship

Rabel- german comparatist considered CL as an independent juristic discipline, its use in the interpretation of Versailles treaty being only contingent and collateral

Cond….

In 1926, institute of foreign and international private law was established in Berlin now in Hamburg named ‘Max Planck institute of foreign and international law’

france

WW 1stperiod an institute de droit compare was founded in france in 1920 at Lyon by Edouard Lambert

Followed by establishment of an institute of CL in the Paris university and at the international level academy internationale dedroi compare (international academy of CL)

The league of nations established the institut international pour l’ unification du droit prive (UNIDROIT)more significant contribution of CL

In 1932 institut de droit compare of Paris university founded by Levi- Ullman

After world war 2nd

In US after WW 2nd study of constitutional CL started

In 1953 supreme court chief justice Earl warren of US travelled germany, Japan and south Korea and impreached the constitutional CL

In 1960 devoted to unification of law UNCITRAL (united nations commission on international trade law) was established

CL in present world

Well defined and developed In accordance with the methods of Rabel

and his contemporaries at home and abroad

Extension of scope from european statutory

Establishment of institutes for CL study with fully equipped manpower.