Chapter 2- Comparative law and legal
systems
Comparative law: The study of similarities and differences between the law (and legal
system) of different countries.
Comparative law has five main purposes ( Zweigert & Kotz):
1. Gaining knowledge
Learning about different legal systems allows one to gain a deeper and
broader insight on how law works in general and in within respective
countries.
Constitutional differences, historical developments, the sources of law used all
shape the way different countries approach and apply law; even in similar
situations, different ways to approach law, different lines of legal reasoning.
2. Evaluating the better law
Beyond just learning about different jurisdictions, comparative law allows
one to examine the approaches to law in different legal systems and
evaluate which one is better.
This purpose is slightly contested because determining one country’s law as
better than another would contradict the idea that all countries are equal.
Evaluating the better law is frequently used by legislators (lawmakers)
as a tool for adopting/amending laws in their own countries.
(Essentially cherry picking the best and most efficient laws from
different countries and adding it to their own).
Also used in the business world (DESTEP analysis) to evaluate what
country’s law is the most conducive to do business in (‘ease of business’) ,
by looking at things like policies and rules regarding taxation, exports etc. in
the country concerned.
3. Substantiate the application of law
When applying law, the courts (the judiciary), administration (the
govt.) or the military tend to compare the law of different legal
systems to make sure they apply the law correctly.
Countries usually look to other countries that have a similar
legal system/shared history/similar values.
, e.g., former British colonies (India’s legal system is based on English
Common Law. So, an Indian Court might look to see what the English
stance on the issue at hand is when trying to solve a case).
4. Improve legal education
A comparative study of different legal systems allows for a better
understanding of the countries concerned as well as broaden one’s
understanding of law and legal concepts in general; not only for
students in universities, but ‘legal education’ in a broader sense.
E.g., Business context: comparative law allows important insights that can
shape strategic decisions.
. 5. The unification of law
Comparing different legal systems also serves the function of trying to
harmonize or unify law.
Different countries have different laws. If all countries had uniform
rules (follow the same law), things like trade would more
straightforward and thus make conducting business easier. Less legal
differences = market functions better.
E.g., Countries in the EU don’t agree on export rules for food products,
which makes selling wine more time-consuming expensive. By agreeing to
adopt uniform rules, the countries can trade more efficiently, reduce
costs, and consequently, increase trade.
How to create uniform rules? By comparing and evaluating of the legal
systems involved and picking the best ones.
Levels of legal comparison:
1. Macro comparison:
Macro comparison compares the main characteristics of legal systems.
Broadly examines the similarities and differences of legal systems and
how they work i.e., less in-depth comparison.
A legal system is a coherent collection of legal rules mostly determined by
the boundaries of a state (country). [in which the same hierarchy of legal sources
apply].
For this course, State (country) = Legal System. England’s legal system is the same
thing as the English Legal System.
systems
Comparative law: The study of similarities and differences between the law (and legal
system) of different countries.
Comparative law has five main purposes ( Zweigert & Kotz):
1. Gaining knowledge
Learning about different legal systems allows one to gain a deeper and
broader insight on how law works in general and in within respective
countries.
Constitutional differences, historical developments, the sources of law used all
shape the way different countries approach and apply law; even in similar
situations, different ways to approach law, different lines of legal reasoning.
2. Evaluating the better law
Beyond just learning about different jurisdictions, comparative law allows
one to examine the approaches to law in different legal systems and
evaluate which one is better.
This purpose is slightly contested because determining one country’s law as
better than another would contradict the idea that all countries are equal.
Evaluating the better law is frequently used by legislators (lawmakers)
as a tool for adopting/amending laws in their own countries.
(Essentially cherry picking the best and most efficient laws from
different countries and adding it to their own).
Also used in the business world (DESTEP analysis) to evaluate what
country’s law is the most conducive to do business in (‘ease of business’) ,
by looking at things like policies and rules regarding taxation, exports etc. in
the country concerned.
3. Substantiate the application of law
When applying law, the courts (the judiciary), administration (the
govt.) or the military tend to compare the law of different legal
systems to make sure they apply the law correctly.
Countries usually look to other countries that have a similar
legal system/shared history/similar values.
, e.g., former British colonies (India’s legal system is based on English
Common Law. So, an Indian Court might look to see what the English
stance on the issue at hand is when trying to solve a case).
4. Improve legal education
A comparative study of different legal systems allows for a better
understanding of the countries concerned as well as broaden one’s
understanding of law and legal concepts in general; not only for
students in universities, but ‘legal education’ in a broader sense.
E.g., Business context: comparative law allows important insights that can
shape strategic decisions.
. 5. The unification of law
Comparing different legal systems also serves the function of trying to
harmonize or unify law.
Different countries have different laws. If all countries had uniform
rules (follow the same law), things like trade would more
straightforward and thus make conducting business easier. Less legal
differences = market functions better.
E.g., Countries in the EU don’t agree on export rules for food products,
which makes selling wine more time-consuming expensive. By agreeing to
adopt uniform rules, the countries can trade more efficiently, reduce
costs, and consequently, increase trade.
How to create uniform rules? By comparing and evaluating of the legal
systems involved and picking the best ones.
Levels of legal comparison:
1. Macro comparison:
Macro comparison compares the main characteristics of legal systems.
Broadly examines the similarities and differences of legal systems and
how they work i.e., less in-depth comparison.
A legal system is a coherent collection of legal rules mostly determined by
the boundaries of a state (country). [in which the same hierarchy of legal sources
apply].
For this course, State (country) = Legal System. England’s legal system is the same
thing as the English Legal System.
