The World’s Legal Systems 2025
HC 1
1. What kind of discipline is comparative law?
Lawyers always compare: “Thinking without comparison is unthinkable. And, in the
absence of comparison, so is all scientific thought and scientific research.” So, why a
discipline like comparative law?
Knowing other legal systems (or cultures, traditions, …) requires a specific
justification
This justification is to be found in the fact that when you have to explicitly compare,
you have to get ‘under the skin’ of at least one other (‘strange’) legal systems
John Bell (UK comparatist) (I):
“There are peculiar challenges in comparative legal research. The first is to
understand the full institutional setting out of which the legal issues and solutions
arise: the organisation of the legal system, its legal concepts, presuppositions and
mental map of the relationships between legal institutions, its legal procedures, and
the broader social and cultural context and assumptions. In one’s own system, much
of this is tacit knowledge. In relation to a foreign system, the researcher needs to
acquire more explicit knowledge, and also has to make the tacit knowledge of his or
her own system more explicit.”
John Bell (II):
Second, the hermeneutic approach requires the comparatist to adopt the internal
point of view of the systems compared, but not necessarily to believe either of them is
right, fair or just
Third, the comparatist is not reporting an internal point of view that comes as clearly
packaged, even if he or she makes use of questionnaires addressed to national
lawyers. The comparatist has to interpret the systems to enable a dialogue between
them. Each law is something that has to be reconstructed in order to provide
intelligible results to people from another legal system
Finally, there is presentation in language and ideas that will be understood by lawyers
in the home legal system. At each stage the potential for going wrong is great, not
least in the institutional and interpretative features. However, that is why there is
strength in the rigour of comparative research”
2. What are the purposes of doing comparative law?
1. Theoretical:
o Acquiring knowledge: “He who knows one society, knows no society”
Understanding foreign law
o Putting your own presuppositions in perspective: comparative law as a mirror
(there are other possibilities of shaping society through law!), and better
understanding your own law (putting it into perspective)
2. Practical:
o Judges: for example filling gaps
, o Legislators: for example taking over foreign law (legal transplants)
o Policy makers: for example harmonizing law (EU)
3. Functionalism as a major research tool
Graziadei: “One of the best-known working tools in comparative legal studies”
Glendon: “[The] functional approach, now recognized to have wide applicability, was
probably comparative law’s principal gift to twentieth century legal science.”
Zweigert and Kötz: “The basic methodological principle of all comparative law.”
Zweigert and Kötz: “From this basic principle stem all the other rules which determine
the choice of laws to compare, the scope of the undertaking, the creation of a system
of comparative law, and so on.”
What purpose does the functional method have (according to Zweigert and Kötz)?
1. A tool for framing a ‘neutral’ research question (and come to “scientific exactitude and
objectivity.”?)
2. A tool for finding a so-called tertium comparationis a ‘heuristic’ device (a
comparative lawyers google)
Framing a research question according to Z&K
“The problem [to be researched] must be stated without any reference to the
concepts of one’s own legal system.”
The local legal solutions “must be freed from the context of its own system (…) cut
loose from their conceptual context and stripped of their national doctrinal overtones,
so that they may be seen purely in the light of their function, as an attempt to satisfy a
particular legal need.”
The lawyer as an ‘architect’!
Translation into research question
“Thus instead of asking, ‘What formal requirements are there for sales contracts in
foreign law?” it is better to ask, ‘How does foreign law protect parties from surprise, or
from being held to an agreement not seriously intended?’ p.34
Functionalism draws heavily on “what every comparatist learns, namely that the legal
system of every society faces essentially the same problems and solves these
problems by quite different means though very often with similar results.”
“If law is seen functionally as a regulator of social facts, the legal problems of all
countries are similar. Every legal system in the world is open to the same questions
and subject to the same standards, even countries of different social structures or
different stages of development.”
Universal societal problems different LAW similar solutions
Functionalism as a – very useful! – heuristic device or search engine
Example: Italian unemployment benefits
, As this example shows, functionalism wants, next to identifying the relevant rules,
also get rid of comparative law that starts with too much of a focus on rules the
comparatist “must eradicate the preconceptions of his native legal system.”
Challenges of the functional method tunnel vision and bias (be aware)!
“We find that as a general rule developed nations answer the needs of ‘legal
business’ in the same or in a very similar way. Indeed it amounts to a ‘praesumptio
similitudinis’, a presumption that the practical results are similar.”
“If one’s comparative research seems to be leading to the conclusion that the foreign
system has ‘nothing to report’, one must rethink the original question and purge it of
all the dogmatic accretions of one’s own system.”
“The researcher can rest content if his researches through all the relevant material
lead to the conclusion that the systems he has compared reach the same or similar
practical results, [else] he should go warned and go back to check again whether the
terms in which he posed his original research question were indeed purely functional
(…)”
“If the comparatist finds no functional equivalent in a foreign legal order, he should
‘check again whether the terms in which he posed his original question were indeed
purely functional, and whether he has spread the net of his researches quite wide
enough.”
HC 2
Structuring comparative legal research
a) Identifying research theme
b) Formulating research question (dominant method is the functional one)
c) Comparability (what is comparable?) and choice of systems
d) Producing a scheme of comparability (including tertium comparationis)
e) Identifying the legal rules
f) Describing the legal rules to compare
g) Comparing
Comparing
What can be compared?
Tertium comparationis (Latin for “the third [part] of the comparison”) is the quality
that two (or more) things which are being compared have in common. It is the point of
comparison which prompted the author of the comparison in question to liken
someone or something to someone or something else in the first place (WIKI)
See the case of ‘regulating the end of life’
Example of a tertium comparationis and functional scheme varieties of end-of-life medical
behaviour (MBPSL)
Behavioral category Legal categorization in Dutch and Belgian
law
Honouring patient’s refusal of treatment Patient’s consent required for treatment
, (current or in treatment directive)
Abstention: with-holding or with-drawing ‘medical exception’ to criminal prohibitions
‘futile’ life-prolonging treatment for ‘normal medical practice’
Euthanasia Justification of necessity (until 2002) or
explicit legalization
Physician-assisted suicide (PAS) Justification of necessity (Netherlands)
Termination of life without an explicit request
How to understand similar systems in their context?
Example: what is “normal medical practice”?
o Casting the net wide!
o Language matters! false friends: a word in a different or even same
language (Dutch-Dutch vs. Belgian Dutch (Flemish) that looks or sounds
similar to a word in a given language, but differs significantly in meaning
M. Gluckman vs. P. Bohanan
Gluckman: “I consider that very many of [the Barotse legal] concepts can, without
distortion after careful and perhaps lengthy description and discussion, be given
English equivalents (…)”
Bohanan: “It simulates understanding through the use of a familiar word. Such
simulation leads – almost inevitably, I think – to an assumption of comparability of
everything called by the same word – and this is a difficulty that is almost impossible
to correct”
Overarching term(s) used to compare two (or more) systems
Legal system A Legal system B Legal system C
Gluckman: “in a study of government one may use the word ‘legislature’ to cover British
Parliament, American Congress, German Bundestag and Reichstag, French Chambre des
Députés, Japanese Diet, all for purposes of general discussion in order to draw attention to
similarity while insisting on difference. Some word is necessary for purposes of general
discussion. In discussing several systems of law, therefore, one may speak of ownership,
contract, property, succession, marriage, betrothal, judge, decision, all to draw attention to a
core of similitude while defining differences.”
BUT BE AWARE AVOID TUNNEL VISION AS MUCH AS POSSIBLE (ALSO IF YOU
TAKE GLUCKMAN’S PRAGMATIC APPROACH)
HC 3
You cannot do comparative law on the basis of a ‘lonely planet’ guide, but rather use good
binoculars with attention for similarities and differences a bit of pragmatism and common
sense helps
HC 1
1. What kind of discipline is comparative law?
Lawyers always compare: “Thinking without comparison is unthinkable. And, in the
absence of comparison, so is all scientific thought and scientific research.” So, why a
discipline like comparative law?
Knowing other legal systems (or cultures, traditions, …) requires a specific
justification
This justification is to be found in the fact that when you have to explicitly compare,
you have to get ‘under the skin’ of at least one other (‘strange’) legal systems
John Bell (UK comparatist) (I):
“There are peculiar challenges in comparative legal research. The first is to
understand the full institutional setting out of which the legal issues and solutions
arise: the organisation of the legal system, its legal concepts, presuppositions and
mental map of the relationships between legal institutions, its legal procedures, and
the broader social and cultural context and assumptions. In one’s own system, much
of this is tacit knowledge. In relation to a foreign system, the researcher needs to
acquire more explicit knowledge, and also has to make the tacit knowledge of his or
her own system more explicit.”
John Bell (II):
Second, the hermeneutic approach requires the comparatist to adopt the internal
point of view of the systems compared, but not necessarily to believe either of them is
right, fair or just
Third, the comparatist is not reporting an internal point of view that comes as clearly
packaged, even if he or she makes use of questionnaires addressed to national
lawyers. The comparatist has to interpret the systems to enable a dialogue between
them. Each law is something that has to be reconstructed in order to provide
intelligible results to people from another legal system
Finally, there is presentation in language and ideas that will be understood by lawyers
in the home legal system. At each stage the potential for going wrong is great, not
least in the institutional and interpretative features. However, that is why there is
strength in the rigour of comparative research”
2. What are the purposes of doing comparative law?
1. Theoretical:
o Acquiring knowledge: “He who knows one society, knows no society”
Understanding foreign law
o Putting your own presuppositions in perspective: comparative law as a mirror
(there are other possibilities of shaping society through law!), and better
understanding your own law (putting it into perspective)
2. Practical:
o Judges: for example filling gaps
, o Legislators: for example taking over foreign law (legal transplants)
o Policy makers: for example harmonizing law (EU)
3. Functionalism as a major research tool
Graziadei: “One of the best-known working tools in comparative legal studies”
Glendon: “[The] functional approach, now recognized to have wide applicability, was
probably comparative law’s principal gift to twentieth century legal science.”
Zweigert and Kötz: “The basic methodological principle of all comparative law.”
Zweigert and Kötz: “From this basic principle stem all the other rules which determine
the choice of laws to compare, the scope of the undertaking, the creation of a system
of comparative law, and so on.”
What purpose does the functional method have (according to Zweigert and Kötz)?
1. A tool for framing a ‘neutral’ research question (and come to “scientific exactitude and
objectivity.”?)
2. A tool for finding a so-called tertium comparationis a ‘heuristic’ device (a
comparative lawyers google)
Framing a research question according to Z&K
“The problem [to be researched] must be stated without any reference to the
concepts of one’s own legal system.”
The local legal solutions “must be freed from the context of its own system (…) cut
loose from their conceptual context and stripped of their national doctrinal overtones,
so that they may be seen purely in the light of their function, as an attempt to satisfy a
particular legal need.”
The lawyer as an ‘architect’!
Translation into research question
“Thus instead of asking, ‘What formal requirements are there for sales contracts in
foreign law?” it is better to ask, ‘How does foreign law protect parties from surprise, or
from being held to an agreement not seriously intended?’ p.34
Functionalism draws heavily on “what every comparatist learns, namely that the legal
system of every society faces essentially the same problems and solves these
problems by quite different means though very often with similar results.”
“If law is seen functionally as a regulator of social facts, the legal problems of all
countries are similar. Every legal system in the world is open to the same questions
and subject to the same standards, even countries of different social structures or
different stages of development.”
Universal societal problems different LAW similar solutions
Functionalism as a – very useful! – heuristic device or search engine
Example: Italian unemployment benefits
, As this example shows, functionalism wants, next to identifying the relevant rules,
also get rid of comparative law that starts with too much of a focus on rules the
comparatist “must eradicate the preconceptions of his native legal system.”
Challenges of the functional method tunnel vision and bias (be aware)!
“We find that as a general rule developed nations answer the needs of ‘legal
business’ in the same or in a very similar way. Indeed it amounts to a ‘praesumptio
similitudinis’, a presumption that the practical results are similar.”
“If one’s comparative research seems to be leading to the conclusion that the foreign
system has ‘nothing to report’, one must rethink the original question and purge it of
all the dogmatic accretions of one’s own system.”
“The researcher can rest content if his researches through all the relevant material
lead to the conclusion that the systems he has compared reach the same or similar
practical results, [else] he should go warned and go back to check again whether the
terms in which he posed his original research question were indeed purely functional
(…)”
“If the comparatist finds no functional equivalent in a foreign legal order, he should
‘check again whether the terms in which he posed his original question were indeed
purely functional, and whether he has spread the net of his researches quite wide
enough.”
HC 2
Structuring comparative legal research
a) Identifying research theme
b) Formulating research question (dominant method is the functional one)
c) Comparability (what is comparable?) and choice of systems
d) Producing a scheme of comparability (including tertium comparationis)
e) Identifying the legal rules
f) Describing the legal rules to compare
g) Comparing
Comparing
What can be compared?
Tertium comparationis (Latin for “the third [part] of the comparison”) is the quality
that two (or more) things which are being compared have in common. It is the point of
comparison which prompted the author of the comparison in question to liken
someone or something to someone or something else in the first place (WIKI)
See the case of ‘regulating the end of life’
Example of a tertium comparationis and functional scheme varieties of end-of-life medical
behaviour (MBPSL)
Behavioral category Legal categorization in Dutch and Belgian
law
Honouring patient’s refusal of treatment Patient’s consent required for treatment
, (current or in treatment directive)
Abstention: with-holding or with-drawing ‘medical exception’ to criminal prohibitions
‘futile’ life-prolonging treatment for ‘normal medical practice’
Euthanasia Justification of necessity (until 2002) or
explicit legalization
Physician-assisted suicide (PAS) Justification of necessity (Netherlands)
Termination of life without an explicit request
How to understand similar systems in their context?
Example: what is “normal medical practice”?
o Casting the net wide!
o Language matters! false friends: a word in a different or even same
language (Dutch-Dutch vs. Belgian Dutch (Flemish) that looks or sounds
similar to a word in a given language, but differs significantly in meaning
M. Gluckman vs. P. Bohanan
Gluckman: “I consider that very many of [the Barotse legal] concepts can, without
distortion after careful and perhaps lengthy description and discussion, be given
English equivalents (…)”
Bohanan: “It simulates understanding through the use of a familiar word. Such
simulation leads – almost inevitably, I think – to an assumption of comparability of
everything called by the same word – and this is a difficulty that is almost impossible
to correct”
Overarching term(s) used to compare two (or more) systems
Legal system A Legal system B Legal system C
Gluckman: “in a study of government one may use the word ‘legislature’ to cover British
Parliament, American Congress, German Bundestag and Reichstag, French Chambre des
Députés, Japanese Diet, all for purposes of general discussion in order to draw attention to
similarity while insisting on difference. Some word is necessary for purposes of general
discussion. In discussing several systems of law, therefore, one may speak of ownership,
contract, property, succession, marriage, betrothal, judge, decision, all to draw attention to a
core of similitude while defining differences.”
BUT BE AWARE AVOID TUNNEL VISION AS MUCH AS POSSIBLE (ALSO IF YOU
TAKE GLUCKMAN’S PRAGMATIC APPROACH)
HC 3
You cannot do comparative law on the basis of a ‘lonely planet’ guide, but rather use good
binoculars with attention for similarities and differences a bit of pragmatism and common
sense helps
