Subject of Comparative Law

What should comparative law be understood to mean and

what are the functions and methods of this discipline? Certain efforts

already have been undertaken in legal science directed towards

elucidating the subject of comparative law and, more precisely than

previously, determining the group of scientific and practical problems

within its purview. Many authors note that comparative law should not

be understood to be merely a certain method of research. The

accumulated comparative legal material, the existence of a number of

problems where the comparative method plays an especially important

role, and significant attention to theoretical problems of comparative

law enables one to say that it is an autonomous orientation of legal

research.

However, there still does not exist in sufficient measure a unity

of opinion as to the content of the concept of “comparative law” itself.

What does this concept mean? Is that which we encounter in works

issued under this title identical in content? The principal question is: are

we speaking of a method or of a science? To elucidate this issue it is

useful to turn to works which are directly or indirectly concerned with

it.

One should note a certain ambiguity between the definitions of

the “comparative method” and “comparative law”. It is hardly correct

to treat them as identical and use them as synonyms, as is sometimes

done. The comparative method should never be called “comparative

law”. The concept of the “comparative method”, that is, the means of

cognition of State-legal phenomena, can not have the same meaning as

the concept of “comparative law” - a scientific orientation studying

the principal modern legal systems. To be sure, if both these concepts

coincided, then comparative law could not become a relatively

autonomous scientific discipline.

Comparative law is based on a conscious theoretically and

methodologically substantiated application of the comparative method

as the principal and leading quasi-scientific method of research whose

aim is to come to comparatively comparable conclusions. And it is not

the same thing that comparison in the process of terminological

delimitation is justified not only by its substantive aspect. It enables one

to ascertain terminologically the differences in the application of the

comparative legal method in the branches of legal science.

The unfoundedness of the attempts to regard comparative law

as merely a method is becoming more obvious. In doctrinal writings the

view is increasingly confirmed that comparative law is both a method

used by all branches of legal science and a special orientation of legal

research.

At the same time it should be said that a significant portion of

legal scholars dispute the existence of comparative law as an

autonomous orientation of legal research and believe that it is merely a

quasi-scientific method.

Such an approach to comparative law makes difficult and in I he

majority of instances even makes it impossible to conduct large-scale

comparative law research of modern legal systems. If it were not

relevant to the substance of comparative law, it would follow that il is

nothing more than a method rather than an entire orientation of leg; 11

research.

The complexity and multidimensional nature of the subject

sometimes leads to researchers absolutizing one aspect against the other.

The comparative legal method and comparative law are actually two

aspects of a single question. They are closely linked, although there is

a certain difference between them. The Russian civilist G.F.

Shershenevich noted that one should not mix the comparative study

legislation for the purpose of perfecting it with comparative law, whose

task is to elicit the general laws of the development of law.

All the aforesaid shows the need for a precise “formalisation” of

the boundaries of comparative law as a scientific orientation and a

clarification of its key general theoretical problems and conceptions.

Every legal discipline (or orientation) comes into being because legal

practice itself has discovered problems which require special study.

We speak therefore not about the institutional recognition of some new

scientific discipline, but about being aware of a number of relatively

new problems which confront legal science.

Thus, comparative law is a science. It is such in two aspects

which, although different, reinforce one another.

The first, aspect is linked with the use of the comparative method

when studying legal institutions and specific legal problems of the country

with which the researcher is affiliated. In this event a more or less

specific legal problem is studied on a comparative legal basis. The second

aspect concerns the autonomous study of foreign law at the level o f

the legal systems as a whole and at the level of individual branches of

law and basic legal institutions. Here we speak of creating a “legal

geography” similar to that which in the past one attempted to generate

on the basis of comparison in the universal history of law. The aim of

such macro-comparison is to give an answer to questions of what is

happening on the legal map of the world, how the principal modern

legal systems are developing, and how changing conditions are reflected

on the national legal systems of various States. When studying existing

legal systems, the comparative geographic perspective is no less

important and complex than the historical. But the geographic scale of

comparative legal research is testimony to the fact that we are speaking

of an autonomous science.

The question arises in this connection of the correlation between

the study of foreign law and comparative law. The demarcation of

comparative law, on one hand, and the study of foreign law, on the

other, have long since become a classical tradition of legal comparison.

But the question is: to what extent is a strict demarcation of these two

concepts possible and what does it produce? It must be emphasized

that such a demarcation, in our view, is difficult to achieve since the

said concepts are so closely intertwined and inevitably overlap.

Historically, comparative law grew out of the need to study foreign

law.

The study of foreign law is an essential component of and

foundation for comparative legal research. Those who object say that

the study of foreign law is merely preparation for comparative law, the

preparatory stage thereof. This notion obviously goes back to the time

when the purposes of comparative law were seen in the creation of a

special national comparative law. Under this approach comparative

law truly would become a second stage after the study of foreign law,

being transformed into a self-sufficient operation and coming down to

deducing that which the existing national legal systems have in common.

Such an understanding, however, of comparative law today is an

anachronism and the conceptions derived from it require adjustment.

To be sure, not every study of foreign law can be relegated to

the category of comparative law. Profoundly country-orientated

research is possible which does not pursue the aims of comparative

law. But such studies always have a comparative hue and contain

significant empirical and factual material for further comparative I; i w

research, especially for comparison with the legal system of the

comparatist’s country. No one can become a comparatist without have

obtained before hand sufficient knowledge about foreign law.

Naturally, under this approach those aspects of comparative law

such as the traditional comparative study of legislation of subjects of a

federated State, and comparison in legal history which does not transcend

the bound of a single country, are not rejected.

Comparative law helps to overcome a narrow national view when

studying law and enables one to view it from a larger angle of vision

Contrasting a national legal system with a foreign one creates I he

conditions for more precisely eliciting the peculiarities thereof. I Insignificance

of comparative law for the development of legal science

lies not only in the acquisition of new theoretical knowledge about legal

realities, but also purely empirical knowledge which one way or another should be taken into account when studying national law.

An immutable condition for the recognition of comparative law

is the existence o f a specific approach to the subject of research. The subject

of comparative law is formed within the framework of

comparative approach to the legal map of the world. The subject of I he

science in turn determines the methods of research and the means of

applying them to the particular science, that is, those very methods

which in aggregate comprise the approach of the science to the object

As our knowledge grows about the object, our understandings also

change about what is under study as the subject of the particular science

(in this case, comparative law).

The methodology of comparativistics does not come down to

merely comparison; the science of comparative law has an entire

complex of means and methods which comprise its methodology as a

whole.

Comparative law uses not only the comparative method, but an

entire methodological arsenal and instruments of legal science. Legal

theory, in solitarizing legal disciplines by subject, requires nil methods

with whose assistance it may be comprehensively studied to be

concentrated around the respective subject. In other words,

“comparative law is distinctive more for a specific subject I him a s| veil ie

method”.

Thus, one may attempt to determine the group of questions

comprising the subject of comparative law. Among them are:

with which the researcher is affiliated. In this event a more or less

specific legal problem is studied on a comparative legal basis. The second

aspect concerns the autonomous study of foreign law at the level of

the legal systems as a whole and at the level of individual branches o f

law and basic legal institutions. Here we speak of creating a “legal

geography” similar to that which in the past one attempted to generate

on the basis of comparison in the universal history of law. The aim of

such macro-comparison is to give an answer to questions of what is

happening on the legal map of the world, how the principal modern

legal systems are developing, and how changing conditions are reflected

on the national legal systems of various States. When studying existing

legal systems, the comparative geographic perspective is no less

important and complex than the historical. But the geographic scale of

comparative legal research is testimony to the fact that we are speaking

of an autonomous science.

The question arises in this connection of the correlation between

the study of foreign law and comparative law. The demarcation of

comparative law, on one hand, and the study of foreign law, on the

other, have long since become a classical tradition of legal comparison.

But the question is: to what extent is a strict demarcation of these two

concepts possible and what does it produce? It must be emphasized

that such a demarcation, in our view, is difficult to achieve since the

said concepts are so closely intertwined and inevitably overlap.

Historically, comparative law grew out of the need to study foreign

law.

The study of foreign law is an essential component of and

foundation for comparative legal research. Those who object say that

the study of foreign law is merely preparation for comparative law, the

preparatory stage thereof. This notion obviously goes back to the time

when the purposes of comparative law were seen in the creation of a

special national comparative law. Under this approach comparative

law truly would become a second stage after the study of foreign law,

being transformed into a self-sufficient operation and coming down to

deducing that which the existing national legal systems have in common.

Such an understanding, however, of comparative law today is an

anachronism and the conceptions derived from it require adjustment.

To be sure, not every study of foreign law can be relegated to

(he category of comparative law. Profoundly country-orientated

research is possible which does not pursue the aims of comparative

law. But such studies always have a comparative hue and contain

significant empirical and factual material for further comparative law

research, especially for comparison with the legal system of the

comparatist’s country. No one can become a comparatist without have

obtained before hand sufficient knowledge about foreign law.

Naturally, under this approach those aspects of comparative law

such as the traditional comparative study of legislation of subjects of a

federated State, and comparison in legal history which does not transcend

the bound o f a single country, are not rejected.

Comparative law helps to overcome a narrow national view when

studying law and enables one to view it from a larger angle of vision.

Contrasting a national legal system with a foreign one creates the

conditions for more precisely eliciting the peculiarities thereof. The

significance of comparative law for the development of legal science

lies not only in the acquisition of new theoretical knowledge about legal

realities, but also purely empirical knowledge which one way or another

should be taken into account when studying national law.

An immutable condition for the recognition of comparative law

is the existence of a specific approach to the subject of research. The

subject of comparative law is formed within the framework of a

comparative approach to the legal map of the world. The subject of the

science in turn determines the methods of research and the means of

applying them to the particular science, that is, those very methods

which in aggregate comprise the approach of the science to the object.

As our knowledge grows about the object, our understandings also

change about what is under study as the subject of the particular science

(in this case, comparative law).

The methodology of comparativistics does not come down to

merely comparison; the science of comparative law has an entire

complex of means and methods which comprise its methodology as a

whole.

Comparative law uses not only the comparative method, but an

entire methodological arsenal and instruments of legal science. Legal

theory, in solitarizing legal disciplines by subject, requires all methods

with whose assistance it may be comprehensively studied to be

concentrated around the respective subject. In other words,

“comparative law is distinctive more for a specific subject than a specific

method”.

Thus, one may attempt to determine the group of questions

comprising the subject of comparative law. Among them are:

- methodological problems of comparison in law (“the theory of

the comparative legal method”);

- comparative study of the principal modern legal systems (in

so doing the issue of the classification of these systems is

rather significant);

- traditional “comparative legislation”; that is, the comparison

of normative sources with regard to specific legal problems,

principally at the level and within the framework of branches

of law;

- so-called functional comparison and certain other sociologically

orientated types of comparative legal research;

- historical comparison of the study of law.

This list of problems comprising the subject of modern

comparative law is not exhaustive. It can and should be added to and

enlarged and individual problems formulated somewhat differently. It

hardly needs special argumentation to work out, for example, such

problems as the comparative study of the legal status of the individual.

International legal problems are significant for comparative law.

Comparative legal research is on the edge of two sciences. The

unification of law is one of the leading issues of comparative law as a

result. The problems of the use of comparative law by courts when

applying a foreign rule is usually studied within the framework of private

international law. There is a long-standing tradition of interaction between

private international law and comparative law.

The reception of foreign law is a large and complex issue in

comparative law.

The issue of legal terminology is important for comparative law

since both legislation and doctrinal writings in various countries use a

different conceptual apparatus. Many terms of one legal system may

have a different meaning or no equivalent at all in another legal system.

This is especially true of the law of countries which belong to different

legal families. The diversity of legal terminology is not merely a source

of difficulty for comparatists; it is a problem of immense practical

importance. Many mistakes are known in the translation of legislative

texts when international legal acts are being prepared.

Thus, comparative law is multi-dimensional and multi-functional

and is required to provide scientific (theoretical-cognitive) and applied

practical results. It represents the application of the comparative method

as a special quasi-scientific means of research and the orientation of

legal research as a whole. In the last instance we stress that the subject

of comparative law is:

(1) the methodological problems of comparative law research (a

significant place being occupied by the theory of the comparative law

method);

(2) the contrastive study of the principal modern legal systems;

in other words, the systematised study of foreign law;

(3) the generalisation and systematization of the results of specific

comparative legal studies;

(4) the working out of specific methodological rules and processes

of comparative legal research;

(5) the study of comparative legal problems of legal history;

(6) the comparative study of modern international legal issues.

Date: 2015-01-12; view: 1139