Comparative law

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Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of internationalism, economic globalisation and democratisation.

Contents

History

The birth of modern comparative law is generally attributed to Europe in the eighteenth century. However, prior to that, legal scholars (forerunners of today's comparativists and international lawyers) practiced comparative method. In Russian legal history, for instance, comparative method dates back to the sixteenth century.[1]

Montesquieu

According to the prevalent view, Montesquieu is regarded as the 'father' of comparative law. His comparative approach is obvious in the following excerpt from Chapter III of Book I of what many consider to be his masterpiece, De l'esprit des lois:[2]

They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.

Also, in Chapter XI (entitled 'How to compare two different Systems of Laws') of Book XXIX he advises that "to determine which of those systems [i.e. the French and English systems for the punishment of false witnesses] is most agreeable to reason, we must take them each as a whole and compare them in their entirety." Yet another excerpt where Montesqieu's comparative approach is evident is the following one from Chapter XIII of Book XXIX:

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