COMPARATIVE LAW: METHOD, SCIENCE, DISCIPLINE

national legal systems which incorporated the historical specific features

of the development of each of the Western countries.

The position of the German comparativist, L.-J. Constantinescu, is

typical. Citing the views of the aforesaid two orientations, he wrote:

“One can find arguments in support of both views. Everything depends

on how they define law and its place in science. If it is reduced to a

mental operation comparing similar objects, it seems that the roots of

comparative law do indeed go back to the remote past. And, on the contrary,

if one understands it to be activity for the purpose of the consistent

approximation of legal systems, one must concur with Pollock”.

Thus it historically happened that unlike, for example, the general

theory of law or the philosophy of law, comparative law was formed as

an autonomous scientific discipline only during the second half of the

nineteenth century or, more precisely, in the last quarter of that century.

The origin and formalization of comparative law as an autonomous

branch of legal science is inseparable from the vast complex of sociopolitical

changes which accompanied the development of national legal

systems. This relatively late rise of comparative law is to be explained

by two factors, the rather obvious link between which individual

comparativists either do not recognize or in any event do not emphasize

specially. One factor is of a social nature, and the other is linked with

the inner logic of the development of legal science. This second factor

is often advanced to the forefront in comparativist writings. An example

is the position of Constantinescu, the author of one of the most detailed

surveys of the history of the origin and development of comparative

law. An analogous view is held by other major figures of legal

comparativistics, such as Gutteridge, David, Rheinstein, and others.

The need for comparative law to a certain extent derived from

the inner logic of the development of the legal sciences. In the early

nineteenth century national unilateralism and limitedness became

increasingly impossible. Legal development had reached a high level

and national legal systems had been formed; interest could not fail to

increase in the study of foreign legislation, and in this connection two

trends were visible: on one hand, the commonality and similarity of

national legislation was stressed, and on the other, greater attention

was devoted to the differences between it.

The works which appeared early in the nineteenth century

endeavored to conceptualize legal phenomena on the historical comparative

plane and prepared a favorable foundation on which the

science of comparative law later took root.

Comparative law also received new impulses from other sciences

which at the time had recourse to comparative analysis. This affected

even the natural sciences: comparative anatomy, comparative physiology,

and later, comparative linguistics.' All the research of these science's

developed simultaneously with comparative law and facilitated its coming

into being.

At the same time, the reasons for the solitary and intensive

development of comparative law into an autonomous discipline should

be sought above all in its practical aims and not in methodological

argumentation. The first steps along the path of comparative law (jus

as the beginning of any scientific knowledge) were made, as Sir

Frederick Pollock, the English jurist, said, for a purely practical purpose,

Historical reality itself exerted a decisive influence on the origins

of comparative law, that is, the internationalization of the economy, I lie

development of international relations, trade links, an increase of the

export of capital and the expansion of colonialism, which led to legal

science being forced to transcend the framework of national law and

national legislation.

These social factors placed comparative law on a practical

foundation. The purely theoretical approach was combined with a

practical-applied one. Therefore the Russian scholar, F. V. Taranovskii,

had every reason to write that “comparative law is the most important

legacy which the nineteenth century left to legal science. Reasons of a

dual nature led to the renaissance and facilitated the development in

the nineteenth century of this new orientation of legal thought

theoretical and practical”.

One should note in this connection the institutionalization of

comparative legal research, the growing separation of comparative law

from the history of law and from the theory and philosophy of law.

Scholarly institutions emerged, such as the Society of Comparative

Legislation in France, founded in 1869 for practical purposes; the Society

of Comparative Legislation in England, created in 1898, the International

Association of Comparative Law and Science of the National Economy,

established at Berlin in 1899, and others.

Institutionalization was expressed further in the creation and

publication of specialized journals, the regular convocation of international

congresses, and the like. Considerations of a practical nature led in

certain countries (France, Germany, England, the United States) to

incorporating comparative law into the programme of legal education,

the basis of which comprised research into foreign legal systems and

the formation of special chairs of comparativistic nature.