Comparative Law Essay

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Comparative law is the study of different laws, legal cultures, and legal systems. The study of comparative law can be traced back to the earliest studies of law and politics. Plato’s Laws, for example, centers on a stranger’s quest to examine the laws of the different cities of his traveling companions to determine the best legal system. Many centuries later, Charles Louis Montesquieu focused a great deal on understanding different legal systems in The Spirit of the Laws. Alexis de Tocqueville, John Locke, Henry Sumner Maine, Friedrich Karl Von Savigny, François Geny, and many other great legal and political thinkers have focused on comparative law as a crucial part of understanding how to create the best government, the best state, and the best society. After World War II (1939–1945), however, the study of law and the study of politics split apart. As a result, while the study of comparative law continued as an integral part of the study of law, it lost its role as a key component of the study of political science.

Recently, however, interest has been renewed in the study of comparative law within the field of political science. In the same way that scholars study the effects of different executive and legislative structures within states, it is possible to study the role different legal systems play in shaping state behavior, both domestically and internationally. The study of comparative law sheds light on our own legal system and also furthers our understanding of other states and peoples around the globe.

Purpose Of Comparative Law: Subject Versus Method

There is often debate over whether it is more appropriate to think of comparative law as a subfield to be studied or as a method to use to address particular research questions. In many instances, however, comparative law serves as both a subject and a method. Understanding the differences and similarities among legal systems allows us to reflect on our own system, as well as to better understand other cultures. For example, a U.S. lawyer whose client is arrested in France will be better able to represent the client if that lawyer understands the differences present in the criminal justice systems of the two countries. Similarly, a U.S. scholar considering the effect interest groups have on judicial decisions would greatly expand the potential universe of cases if, rather than engage in a unitary case study of the U.S. Supreme Court, that scholar considers cases from other judicial systems.

Comparative Law, Comparative Constitutionalism, And Comparative Judicial Institutions

Comparative law as a field may take on a number of meanings within the disciplines of law and political science. The first, and traditional, meaning of comparative law refers to a comprehensive examination of the different legal traditions that make up the legal culture and shape the legal institutions of a state. Closely related to this more broad-based conception of comparative law as a field of study are the subfields of comparative constitutionalism and comparative judicial institutions. While comparative law as an examination of legal traditions includes both constitutions and institutions, each of these has become significant in its own right.

Comparative constitutionalism considers the elements of state constitutions and a comparative analysis of the effects of these constitutions within the state context. This subfield may focus on the issue of rights protected or omitted from a state constitution, as well as the effect of the presence or absence of such rights on the citizens of a state. Another area of focus for comparative constitutionalism is the institutional setup present within constitutions, particularly centered on the concept of judicial review. In both cases, comparative constitutionalism often uses court decisions on constitutional matters as a main component of comparative discussion.

Contrary to comparative constitutionalism, comparative judicial institutions focus on the institutions that comprise the judiciary rather than the law itself. Topics include the independence of the judiciary from other branches of government, the court structure within a state from local courts, through appeals courts, to high courts, and the different types of high courts within a state. The study of comparative judicial institutions also may consider the role that nonjudicial parties are allowed to play in judicial decision making, such as intervenors or amicus curiae.

The World’s Major Legal Traditions

Comparative law research begins with the foundational components of the world’s major legal traditions. While highly generalized, these traditions—also called legal families—provide an initial basis to begin addressing questions of comparative law. The legal tradition present within a state shapes not only the legal culture and societal understandings of law within a state, but also the types of laws and legal institutions that a state develops. For example, whereas the revolutionary origins of the U.S. legal tradition produced a legal culture focused on the protection of individual rights, a strong constitution, and a clear separation of powers with significant power for the judiciary, the religious origins of the Egyptian legal tradition results in the maintenance of the relationship between church and state and a respect for the authority of sharia law and a court system that combines secular courts and religious courts to decide different issues.

Six legal traditions are outlined below, including an overview of the origins and major characteristics of the tradition, as well as a list of states with that legal tradition.

Common Law

The common-law legal tradition traces its origins to the arrival of William the Conqueror in England in 1066. Once established as king of England, William set up a legal system based on a hierarchical system of courts, in which the judges were responsible for rendering decisions in the cases before them and for synthesizing the varied customary laws found throughout the English territory. By collecting these “common” laws, early judges solidified the prominent role of the judiciary in the common-law system and made judicial decisions a primary source of law.

States with the common-law tradition share a number of specific characteristics. Given that the foundations of the legal tradition are centered in early English court cases, judicial decisions remain the focus of the legal system. This has led to a general understanding of law as a tool for the individual, a system within which individuals have rights and may redress grievances against one another or against the state. Rather than being viewed as an overarching code of conduct (see the civil-law tradition below), the common-law tradition focuses on practical outcomes to individual problems.

This prominence of the judicial branch has led, in many common-law countries, to the creation of judicial review, although the strength of such review varies. For example, judicial review is very strong in the United States, where the U.S. Constitution gives the Supreme Court the power to review legislative and executive actions for conformance with the Constitution and strike them down if necessary. On the other hand, in England, the power of judicial review is much weaker. The High Court of England may only strike down Acts of Parliament in very limited circumstances.

Today, countries with common-law systems include England and Wales (Scotland has elements of the common law, but they are mixed with the civil-law tradition), Australia, Canada, New Zealand and the United States. A number of other countries—many members of the British Commonwealth—also have significant elements of the common-law tradition incorporated into their legal systems. These include India, Nigeria, South Africa, and a number of Caribbean islands.

Civil Law

The civil-law tradition dates to the time of the Roman Empire and the Corpus Jur is Civilis and has three main periods of influence: Roman law, Canon law, and the jus commune. The Corpus Juris Civilis was compiled by Emperor Justinian in the sixth century C E . The Corpus Juris Civilis was a comprehensive compilation of Roman law into a single, codified written form. This is the foundation from which the core of the civil-law tradition—written law and codification—originated. After the disintegration of the Roman Empire, much of Europe entered into the Dark Ages—a period in which legal systems were largely absent and law was predominantly customary. The Catholic Church’s power, however, kept the Roman writings on law alive, and scholars such as Augustine and Aquinas even added to these laws, incorporating elements of morality and a communal purpose into the largely secular Roman laws. In the eleventh century, the university at Bologna began to revive the study of law. A group of scholars, known as the glossators, began to lecture on Justinian’s codes; more importantly, they began to recodify the law in a manner that made it applicable to Renaissance Europe. The new law was called the jus commune because it was to be a law that was common to all of Europe. This was possible because scholars from all over Europe came to study law at Bologna, and when they left they took the jus commune with them, incorporating it into their own legal systems. This is the reason that the countries of continental Europe have such similar legal systems.

Modern civil-law systems maintain significant ties to this historical development, and many are even further linked as a result of the spread of the Napoleonic Codes. One of Napoleon’s primary accomplishments was to consolidate French laws into a number of comprehensive codes. These codes were then transplanted to those countries under the French empire. In other countries, particularly those in South America, the Napoleonic Codes were used as guidelines for their own legal systems.

Codes are the foundation of the civil-law tradition. Codes are designed to be all-encompassing, providing not just a list of legal obligations, rights, punishments, and remedies, but also an overall guide for people on how to conduct their daily lives. Civil-law systems are, therefore, more communal in their focus than common-law systems. Much of this can be traced back to the influence of the Canon law on the civil-law tradition, an influence that incorporated ideas of morality into the law. This communal purpose, however, also can be traced to the minimal role that the judge plays in the civil-law tradition. The role of the judge in the civil-law tradition is to apply the laws, as written by the legislature, to the facts of the case under consideration. Because the codes are so detailed, there is little room for judicial interpretation, and even less for judicial law creation. This is very different from the common-law system described above. Moreover, given the clear delineation of lawmaking authority, judicial review is not often found in civil-law systems.

More countries around the world have civil-law systems than any other system. France, Germany, Italy, Spain, and most of the other countries of western Europe maintain civil-law systems. Argentina, Brazil, Mexico, and most of the other countries of South America also maintain civil-law systems.

Also, many states have adopted civil-law systems and mixed them with other legal traditions. These include Cambodia, Egypt, the states of French west Africa, Morocco, Russia, Tunisia, Turkey, and Vietnam.

Islamic Law

The Islamic legal tradition is the most dominant of the religious legal traditions today. The Islamic legal tradition stems from the religion of Islam and began with the preaching of Muhammad around 613 CE. As a religious legal tradition, the Islamic tradition is founded on a number of beliefs that are very different from those of the secular traditions described above. These include the belief that law comes from Allah and, because of these origins, law is unchangeable by man. Moreover, because law comes from Allah, the role for the judge is minimal, and breaking the law means more than a fine or jail—it is a sin. Islamic law also focuses on the duties, rather than the rights, of the individual.

The purpose of an Islamic state is to assist Muslims in living according to the tenets of Islam. The whole body of Islamic law is called the sharia, which encompasses the rules that Allah laid down for Muhammad. The sharia consists of a number of specific sources of law. The first of these is the Quran, which is the book containing Allah’s revelations to Muhammad. A second source of law is the sunna, which is the record of the words and deeds of Muhammad during his lifetime, which are to be emulated by all Muslims. The third source of law are the ijma, which are those doctrines and laws on which the majority of Islamic scholars agree. The fourth source is the Qiyas, which is a method of analogical reasoning used to fill in gaps when the other three sources of law do not touch on a particular issue.

The extent to which each of these sources of law are used varies according to which branch of Islam (Sunni or Shia) and which school of Islamic thought (Hanafi, Maliki, Shafi’i, and Hanbali) are present within a state. Islamic scholars disagree on the relative importance of these four sources. Most recognize the preeminence of the Quran and the sunna, but disagree over the validity of the ijma and the Qiyas. For example, the Hanafi school allows for consideration of all four types of law, and in some Hanafi countries, such as Egypt, ijmas and Qiyas have been used to incorporate civil-law and common-law components into the legal system. Other countries, such as Saudi Arabia, which follow the Hanbali school of thought, discourage the use of both ijmas and Qiyas and maintain much more traditional Islamist legal systems.

The Islamic legal tradition is the primary legal tradition in a number of countries including Afghanistan, Iran, and Saudi Arabia. The Islamic legal tradition is also a major component, mixed with common law, civil law, customary law, or other religious traditions, in many countries throughout Africa, the Middle East, and Southeast Asia, including Egypt, India, Indonesia, Iraq, Jordan, Nigeria, and Syria.

Hindu Law

The Hindu legal tradition can be traced as far back as 2500 BC. The Hindu tradition is based on dharma, which is the belief that there exists a universal order inherent in the nature of things. Like the sharia in the Islamic legal tradition, dharma is designed to guide all of an individual’s behavior and does not distinguish between religious duties and legal obligations. Any concept of individual rights is foreign to the Hindu tradition, which focuses instead on maintaining balance and harmony within the community.

One belief that distinguishes the Hindu tradition is that the duties and obligations each individual must carry out vary according to each person’s status. The Hindu tradition divides people into three primary social groups, each with its own rules and obligations. These include the scholars and priests, the warriors and merchants, and the artisans and tradesmen. This division is necessary in the Hindu tradition to ensure proper balance.

Historically, in the Hindu legal tradition, rules were primarily enacted, implemented, and enforced at the local level. The village panchayat was responsible for hearing and deciding legal disputes on the basis of religious laws and existing local custom. Given the diversity that existed throughout the Indian subcontinent, there could be a significant difference between the laws as applied in the local communities.

The primary sources of law in the Hindu legal tradition are the religious texts (the sastras and sustras) and the accepted interpretations of these works by religious scholars (the vedas). One distinguishing characteristic of the Hindu tradition, however, is its flexibility in terms of the recognition of new laws. Unlike some other religious traditions, in which change to the laws is very difficult to achieve, the Hindu tradition accepts change as a natural part of life. The dharma always has accepted that new laws will have to be made by men to govern their current situations. Whether the laws are created by custom, legislation, or judicial decision, the Hindu tradition accepts manmade law as an essential component of a functioning social order, while at the same time recognizing the transient nature of this law and the fact that it will continue to change as circumstances and societal needs change.

Hindu law, both historically and today, has largely been centered in India. The legal system of India today is no longer purely Hindu law; it is a mixed system incorporating common law, customary law, and Islamic law, but Hindu law does remain a part of the legal system and is dominant in the area of family law. The Hindu legal tradition also has had some influence in a number of other countries in Southeast Asia, including Bangladesh, Nepal, and Pakistan.

Customary Law

For centuries, throughout Africa, legal rules came in the form of customary laws. The basic tenet of this customary tradition is that law stems from respect for the traditions of one’s ancestors. The binding nature of law in these societies came from the pressure of the group and not wanting to act against the group for fear of shame and banishment.

The customary legal tradition centers on social groupings such as tribes, castes, villages, and bloodlines. These social groupings are thought to endure through time, and therefore no laws can exist that adversely affect either past or future generations. Because of this, certain Western conceptions of law do not have a place in the African tradition. For example, personal property rights are generally not found in customary legal traditions because property was thought to belong to one’s ancestors and descendants as well as oneself. You are merely entitled to use the property during your lifetime. Corresponding to this focus on the group, the law is ordered primarily based on individual obligations to the community rather than individual rights.

Colonialism had a significant effect on the customary legal tradition, and today most African states maintain mixed legal traditions, with some elements of customary law still existing alongside civil law, common law, and religious law traditions. In many states, local and family issues may still be handled through customary law. For example, in Nigeria, a country where the national legal system is founded on the British common law, both local and national judges still refer to local customary law to decide issues related to property and marriage disputes.

Countries that still maintain elements of customary law include Burma, Burundi, Chad, Ethiopia, Ghana, Kenya, Mali, Nepal, Nigeria, Rwanda, Togo, and Uganda, among many others throughout Africa and Southeast Asia.

Asian Law

A number of characteristics bind individual Asian states’ legal traditions together into a legal family. One of the primary components of the Asian legal tradition is that law, historically, was not considered a means of promoting peace and stability. As with the religious and customary legal traditions, the Asian tradition relies on something other than legal rules to maintain order in society; formal legal rules are considered secondary. Like the customary tradition, the community plays a significant role in the Asian tradition, and the focus is on consensus and mediation, rather than the determinative outcome of an adversarial legal procedure. In many Asian countries, even today, seeking resolution in the legal system is considered shameful. Disagreements are still handled within the community, and in resolving disputes the focus is on the outcome that will best restore harmony to the community rather than solely punish an offender or provide a remedy to the victim.

Many Asian countries, China in particular, also have been influenced by Confucianism. Within the Confucian tradition, society is structured according to a natural order, in which each person has a designated place (in a manner very similar to the Hindu tradition). Society is hierarchical, with the family as the primary unit, followed by the village, then the region, and then the country. Disputes are resolved under this hierarchy as well—first within the family, but if that is not possible then within the village. Resorting to regional or statewide solutions is frowned upon.

As with the other legal traditions described herein, however, these general characteristics vary from country to country, depending on the particular historical development and societal characteristics of that country. China, for example, has been strongly influenced by Confucianism, but also in more recent times by socialism. Japan, on the other hand, while sharing the historical influences, has been influenced also by its Shinto tradition and, particularly after World War II, the Western traditions of the civil and common law.

States that reflect evidence of the Asian tradition include China, Japan, and South Korea.

Conclusion

The six legal traditions described in this entry are commonly identified as the primary legal families that have developed across the globe. Largely this is due to our ability to trace the origins of today’s current legal systems for most countries to one of these traditions. As mentioned, however, these classifications are a starting point for further study and understanding of comparative law. Today, the legal traditions of very few states remain “pure,” meaning a state that can trace the origins of its legal tradition back to only one of these major legal families. The vast major ity of legal systems found in states today are mixed systems—legal systems that have incorporated two or more of these legal families into their current legal structure. In some instances this mixing was the result of conquest or colonialism. In other cases it was the result of borrowing from successful systems in an attempt to improve one’s own. Even the United States, one of the classic examples of the common-law tradition, maintains traces of the civil-law tradition through the Napoleonic Codes that are still part of the laws of the state of Louisiana. Most of the countries of Africa, Asia, and the Middle East are mixtures of three or more systems including Western-style secular law, religious legal traditions, and customs.

Despite this mixture, however, understanding the primary characteristics that form the origins of the world’s major legal traditions helps us to understand the perceptions and understandings of law that exist in different countries around the world. This understanding makes the field of comparative law such a vital and important one.

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