Comparative Law as Science and Instructional Discipline

Comparative law is in a certain sense a structured conceptual

system of legal knowledge, systematized notions linked with one another

somehow concerning the principal modem legal systems and the theories

of the application of the comparative method both in the scientific cognitive

and in the practical applied aspects. It is understandable that

the balance of each of these aspects and each of the problems of

comparative law is various in different countries. Some problems are

at the forefront and intensively worked out in some social and cognitive

conditions, whereas others are pursued under difference circumstances.

Comparative law is not so much a chronological, temporal

measure as a spatial one. This is conditioned by the fact that its

development has occurred and proceeds within the limits of rather

precisely demarcated culturo-historical regions and simultaneously

conditions of a significant expansion of the geography of modern legal

comparativistics.

Comparativist conceptions of the past act with respect to modern

comparative law as the historical foundation of its concepts and

doctrines, its structure, and its language. Passing beforehand through

respective cognitive and social filters, they naturally become part o f

the fabric of modern legal comparativistics. It is entirely just to say in

this connection that the history of comparative law represents an actual

legal theory today but taken from the standpoint of its genesis and

development.

The history of comparative law plays the role not only of a living

memory and methodological laboratory of modem legal comparativistics.

It also is a type of test site in which legal concepts are tested, a

multiplicity of types of legal understandings of various scientific

orientations and schools. A comprehensive, careful analysis and

profound generalisation of the peculiarities, trends, and laws of societal

development of the historical development of comparativistic thought

is essential in order to forecast the ways and means of the further

development and improvement of modem theoretical knowledge about

the legal map of the world. Recourse to the history of comparative law

often proves to be most effective means to find the key to resolve an

entire complex of problems of modern legal science.

Without actively working out the history of comparativistics

conceptions, without mastering the materials thereof, without an

assessment of that learned, one can not elicit the group of basic questions

well-foundedly, the study of which constitutes the subject of modern

comparative law. Such a working out facilitates the precise discovery

of key points for the development of legal comparativistics, facilitates

uncovering its links with various legal disciplines and orientations of

legal ideology, promotes the realization of all of its theoretical-cognitive,

ideological, and practical applied possibilities.

Today comparative law is more differentiated and more profound

than previously and is thinking through the complex processes occurring

on the legal map of the world. In addition, the structure of modern legal

comparativistics is complex; in it one may single out, in particular, the

conceptual nucleus thereof, the significance reflecting primarily specific

historical peculiarities of the object being studied, and personal initiatives

and cognitive propositions of its leading representatives.

The presence in comparative law, together with the transient

problems and transient knowledge of a certain nucleus of “eternal

problems” and relatively stable scientific language corresponding to

them, ensure not only the stability and succession of its conceptual and

categorization apparatus, but also the status of an autonomous and

developing branch of legal knowledge.

As criteria for determining the character of comparative law as

a confirmed autonomous branch of scientific legal knowledge it is

necessary to accept the following factors:

the intensive growth of comparative legal research being

conducted and of scholarly publications;

- the emergence of systematized and survey works, including

retrospective bibliographies, anthologies, international and

bilateral colloquiums and conferences on the most urgent

problems;

- the publication of specialist periodical literature with permanent

methodological sections devoted to comparative law;

- the creation of systems for the training of comparative

specialists at the faculties of universities or in other scholarly

centres and the publication of instructional syllabi and

manuals;

- the formation of national and international scientific research

centres, schools, and orientations.

The development of comparative law as a scientific orientation,

of course, has more than “external” characteristics. The specific

distinctive features of the subject of research which underlie disciplinary

work and establish the significance and autonomy of this branch of

legal knowledge and its status within the system of legal sciences as a

whole should be regarded as a constructive indicator determining the

origin of this autonomous scientific discipline. In other words, the origins

and development of comparative law are linked with the specific

approach and subject ensuring the general recognition thereof.

Comparative law shows the relativity of existing national law. It

enables one to go beyond the limits of a simple definition of a written

norm as the sole expression of law operating on a determined State

territory, or as the sole purpose for the use of a determined legal

technique, and to make certain adjustments in our concepts relative to

I lie place and role of each national legal system on the legal map of the

world.

Comparative law enables the legal policy of various States to be

elicited and comprehended. It helps us to see and contrast priority

legislative trends in various countries or, more precisely, the principal

orientations of legislative reforms in the international context. Because

the use of comparative law data enable the accumulated foreign

experience to be borrowed in order to satisfy the requirements of legal

development, one may say that comparative law leads to forecasting

I he prospects for legislative development.

The legislator may use comparative legal materials when resolving

certain cardinal complex problems of legislative policy; when resolving

individual problems by means of working out acts of national legislation;

when improving legislative technique.

It is now extremely important to transcend the ideological

schemes, to seek and find everything that is best in the law and State of

all epochs (not excluding, of course, the present) which may serve the

cause of law reform. Comparative legal research, on one hand, helps

to disclose everything that is useful, that has justified itself abroad when

resolving basic problems, to avoid unnecessary labour to “reinvent the

bicycle”, and, on the other hand, makes it possible to take into account

the negative aspects of foreign experience and the ineffectiveness of

particular legal decisions. Especially material is the circumstance that

when creating a new legal act the national legislator turns to existing

norms of foreign law, that is, to those with respect to which practical

experience has accumulated. We have in view, of course, not to suggest

to the legislator finished samples and models taken from abroad, but

the study of foreign legal experience, both positive and negative. Such

a study does not have the purpose solely to borrow or reject, although

such a result is not precluded. It enlarges the worldview of science and

makes possible a more expansive approach to the problems.

The teaching of comparative law - on the plane of introducing

the principal modern legal systems for study or on the place of the

comparative study of branches and institutions of law - is an important

panorama for the development of modern legal science and legal

education.

Their task, together with the study of national law, is also to

investigate the global laws of societal development and the

developmental trends of law in the modern era. Therefore legal science

should rest on serious theoretical propositions, the object of which is

other, foreign, legal systems. The importance of the analysis of the

experience of world development, including the study of processes

emanating in modern society, arises from the requirements of political

and legal reforms.

Date: 2015-01-12; view: 1027