Significance of Comparative Law

Great attention is devoted in legal science to comparative law,

And although disputes and discussions concerning the status of l hr.

scientific orientation and the group of problems within its jurisdiction

continue to this day, it is now generally recognised that comparative

studies of law are important for the future development of legal science

Comparative legal research in combination with traditional

historical, normative, and sociological views of law enable:

first, the phenomena of legal reality to be studied which previously

were not encompassed by jurisprudence and to depart from the national

frameworks of a legal system;

second, to examine from a special vantage point a number of

traditional problems of legal science taking into account the I rends in

the development of law in the modern world.

For legal science devoted principally to national law the use of

comparative law is especially important since comparative law helps to

establish how the same legal problem is resolved in various countries,

enlarges the horizons of legal research, and enables both the positive

and the negative foreign legal experience to be taken into account.

Without taking into account the data of comparative law, general

theoretical conclusions these days can not pretend to have a universal

and general character. On the other hand, certain concepts of legal

science need clarification by taking into account foreign legal experience

and world legal thought.

The growing trend towards the interdependence of States of the

world community is characteristic of the modem epoch. Modern

civilisations can not close themselves off and reject contacts and links,

and consequently, a cognition of one another. A socially and politically

diverse world, but simultaneously an interlinked and to a great extent

integral world, is being formed. This unity and international mutual

dependence with the inevitable mutual approximation underlies the

contrast and comparison of modern legal systems. Comparative law is

called upon to show all of this diversity in its legal aspects, thereby

stressing the priority of universal human values in the development of

law in civilised societies.

The need for international cooperation and modern global

problems (scientific-technical progress, ecology, demography, and others)

require unswerving attention to the principal legal systems of the world

and a new view of existing legal problems. On this plane the role of

comparative law is growing as a means of studying and assessing legal

spheres in which this cooperation is proceeding. Broad opportunities

have opened to use comparative law for the purposes of international

cooperation and the formation of a single world rule-of-law State.

Comparative law is endeavouring to hold in view all of the principal

modern legal systems. In so doing the equality of legal systems on the

scientific plane arises, of their theoretical study and classification.

Recognition of the parallel existence of various legal systems creates a

favourable foundation for the fruitful cooperation of jurists from various

countries, irrespective of whether their socio-political systems and legal

structures differ. The legal comparatist faces the task by means of the

objective study and contrast of existing legal systems of finding the

best legal solutions for specific social problems in a determined socioeconomic,

political, and cultural context.

Comparative law is multi-dimensional. First, it is concerned with

general theoretical conceptions of law in general (and they do not

coincide with the representatives of various legal systems) and

demonstrate the pluralism of legal conceptions and understandings of

law. Second, problems are analyzed within the framework of

comparative law not only at the level of the general theory of law, but

also of the branch legal sciences; in this connection comparative legal

studies acquire an interdisciplinary legal character. Third, the

consideration of the problems of comparative law has a profound legal

and socio-political significance insofar as they are closely linked with

ensuring the legal foundations for the unfolding of democracy,

strengthening of legality, and effectuation of the justness of justice.

Comparative law is an integrated orientation of legal scientific

research having scientific-theoretical and practical applied importance.

It is the most adequate instrument for the cognition of the principal

trends of legal development in the modern epoch. The level of

development achieved does not fully satisfy the queries of legal science

and the requirements of legal practice, offers insufficient material for

fundamental theoretical conclusions, and lags behind the requirements

advanced by reforms of the political and legal systems. There are a

number of reasons for this.

First. Many legal scholars in the Soviet period, when conducting

specialized studies of the problems of the theory and practice of

comparative law, pursued an unequivocal critical purpose which was

realised principally on the level of “unmasking” bourgeois law through

contrastive comparison. To be sure, under conditions of rivalry and

ideological confrontation of two opposed socio-political systems such a

critical analysis was to a certain extent justified; however, it should not

have been reduced to a tendentious selection of materials, the

withholding of individual facts, and unequivocal negative assessments.

Just as any other scientific analysis, comparative research of the

legal reality of foreign countries is called upon to give an accurate

picture and not to squeeze complex, contradictory, dynamic processes

into tight, previously conceived ideological schemes formed in the past.

Second. Specialized studies of the problems of one’s own national

legal system were not accompanied by a constructive legal analysis of

foreign legal institutions. In its day the “campaign against

cosmopolitanism” played an especially negative role in cutting back

studies and the comparative analysis of foreign State and law in all of

I heir diversity; at the end of the 1940s such research was deemed to be

a “manifestation of a low genuflection towards bourgeois culture”. As

a result, these two inextricably linked orientations of legal research

virtually never crossed when resolving internal problems of national

law.

I u the meantime life showed the need to develop comparative

law in its modern understanding: to study foreign law specially, showing both

its common laws of societal development and features and the

specific properties of the principal legal families and individual national

legal systems; to consider foreign forms with the assistance of the

comparative method and the experience of resolving specific legal

problems put by politico-legal reform on the agenda, especially in

connection with the task of forming a democratic rule-of-law State and

a just civil society.

In recent decades legal comparativistics has been significantly

enriched in the world: the rapid tempo in the growth of the number and

thematic diversity of comparative legal research; the creation of new

specialized institutions, the number of publications on comparative law.

Comparative law is especially fruitful both in the domain of improving

national legislation and in the cause of working out, adopting, and unifying

international legal acts, and also in the teaching of legal disciplines, as

experience has accumulated with the generalization of empirical material

and the techniques and methodologies of comparative law studies.

Date: 2015-01-12; view: 1006