Tartu likool, Introduction to Comparative Law (OEIO.06.062), Autumn semester 2011/2012 On Wednesdays, 18.15 20.

0.00, Nituse 20, Room 114 Dr. Thomas Hoffmann, LL.M.

Introduction to Comparative Law

Lecture I

31 august 2011

Approaches to Comparative Law: Basic issues

Contents
I. 1. 2. II. III. IV. 1. 2. 3. 4. V. Introduction..................................................................................................................................... 2 Law and Science .......................................................................................................................... 2 At what aims Comparative Law? ................................................................................................. 2 History of Comparative Law ............................................................................................................ 2 Methods of Comparative Law ..................................................................................................... 3 Related disciplines ....................................................................................................................... 4 Private International Law ............................................................................................................ 4 Legal History ................................................................................................................................ 4 Legal Ethnology, Legal Sociology and Legal Philosophy .............................................................. 5 Public International Law .............................................................................................................. 5 Functions of Comparative Law ........................................................................................................ 5

Exercise:................................................................................................................................................... 6 VI. 1. 2. Literature ..................................................................................................................................... 6 Overviews .................................................................................................................................... 6 Case collections and Casebooks .................................................................................................. 6

 Tartu likool, Introduction to Comparative Law (OEIO.06.062), Autumn semester 2011/2012 On Wednesdays, 18.15 20.00, Nituse 20, Room 114 Dr. Thomas Hoffmann, LL.M.

I.

Introduction

1. Law and Science

Thesis: Only in its branches bordering to other disciplines - and especially in the form of comparative law jurisprudence fulfills all criteria of science. What ist science? Science: is Objective Reveals universal truth Central tool of science: Juxtaposition of facts National jurisprudence: Mere interpretation of positive law Restricted to national horizon Subject to constant change (in democracies): based on parlamentary i.e. subjective decisions, not on objective facts Thesis: National jurisprudence is not science.

2. At what aims Comparative Law?

Comparative Law reveals interactions between different legal systems, works out differences, similarities, similar structures / methods and reveals hidden values in a legal system. Knowledge of foreign legal systems enables to evaluate home law, fosters international trade and cultivates intercultural dialogue/International understanding (see further V.).

II.

History of Comparative Law

Legal specialists were always asked to compare home law to foreign law, but scientifically the idea of Comparative law was first promoted by Montesquieu, who advised in Chapter XI of Book XXIX De lesprit des lois (entitled 'How to compare two different Systems of Laws') that 2

 Tartu likool, Introduction to Comparative Law (OEIO.06.062), Autumn semester 2011/2012 On Wednesdays, 18.15 20.00, Nituse 20, Room 114 Dr. Thomas Hoffmann, LL.M.

"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" respectively in Chapter XIII of Book XXIX As the civil laws depend on the political institutions, because they are made for the same society, whenever there is a design of adopting the civil law of another nation, it would be proper to examine beforehand whether they have both the same institutions and the same political law. The first conference on Comparative Law took place in 1900 during the World Exhibition in Paris and was initiated by douard Lambert and Raymond Saleilles. The World Exhibiton was marked by an infinite belief in progress, technically as well as culturally. Lambert and Saleilles were heading for a droit commun de lhumanit, for a common law of mankind. The first World War interrupted this progressive attitude, but Comparative Law developped further and found one of its Centres in Berlin, promoted especially by Ernst Rabel, who became in 1926 director of the Kaiser-Wilhelm-Institut fr auslndisches und internationales Privatrecht founded in 1911 (today Max-Planck-Institut fr Internationales Privatrecht in Hamburg). In the United States, Comparative Law was introduced to large degrees by Rudolf Schlesinger, who published in 1950 Comparative Law: Cases, Text, Materials, having a great impact on American jurisprudence. Konrad Zweigert and Hein Ktz published An Introduction to Comparative Law in 1976, a book which is seen today - altough a little outdated still as the Gold standard for Comparative Law. More multifarious, but less comprehensive is The Oxford Handbook of Comparative Law, edited by Reinhard Zimmermann.

III.

Methods of Comparative Law

Comparison can be done on different scales: Macrocomparison compares the spirit of legal systems generally, i.e. the o style of law o Techniques of legislation o Court systems, role of precedents o Role of lawyers, judges, other persons engaged in law This comparison reveals that some legal systems have more in common than others; they belong to the same legal family. Microcomparison: Comparing concrete problems within (positive)law, i.e. liability for malperfomance within the sale of goods. 3

 Tartu likool, Introduction to Comparative Law (OEIO.06.062), Autumn semester 2011/2012 On Wednesdays, 18.15 20.00, Nituse 20, Room 114 Dr. Thomas Hoffmann, LL.M.

The scope of problems to be compared is infinite More practical than macrocomparison Anyhow, without basic knowledge of macrocomparison diligent microcomparative work can hardly be done: If a judgement will lead to the same results in two legal systems, but the enforcement of the judgement will be hardly feasible in one system, this microcomparative result is of litte practical relevance. In order to practice legal comparison, basic knowledge of the legal systems to be compared even if only in a very detaikled question is necessary. The lecture will therefore in a first step introduce to the general outlines of the worlds legal families.

IV.

Related disciplines

Macrocomparison has a rather broad range of research and has to be distinguished from neighbouring disciplines, of which there are rather many.

1. Private International Law

Private International Law covers foreign law as well, but is restricted to the regulation of its application from the home laws perspective. It is a positive set of rules determining applicable law. It is purely practically orientated, while comparative law intends to reveal the contents of the law the tools of Private International Law directed to. In so far, both disciplines are intertwisted, but following different approaches. Anyhow, as the process of qualification is one of the essential steps of the Private International Law method, Private International Law cannot do without Comparative Law in cases where are ambigous legal terms, i.e. the Common Law trustee. The legal instrument withion a foreign law matching the spirit and function of a trustee has to be determined by Comparative Law.

2. Legal History
A legal system cannot be understood thoroughly whithout taking into account its origins and its development. Besides, comparison (but in time) is the central tool of legal history as well. Indirectly, Legal History is therefore always an essential element of Comparative Law. One can with Zweigert/Ktz state that Comparative Law is horizontal Comparative Law, while Legal History is vertical Comparative Law.

 Tartu likool, Introduction to Comparative Law (OEIO.06.062), Autumn semester 2011/2012 On Wednesdays, 18.15 20.00, Nituse 20, Room 114 Dr. Thomas Hoffmann, LL.M.

3. Legal Ethnology, Legal Sociology and Legal Philosophy

Ethnology focuses on the social structures within secluded groups, while sociology researches behaviour within more intertwined societies. In both disciplines, legal issues are of considerable importance. On the other hand, comparative methods have to take into account cultural conditions, traditions, customary law and further non-positive law as well in order to achieve correct results.

4. Public International Law

Public International Law, covering the legal releationships between states, inter- and supranational entities and organisations, is a legal system of its own and does not compare legal systems. Anyhow, comparative law is, as in International Private Law, an essential tool for interpreting e.g. treaties.

V.

Functions of Comparative Law

Comparative Law focuses on two main tasks: To depict the nucleus of a social problem regulated by two different legal systems in a different (or maybe comparable) way. n a second step, to compare the impacts of the respective regulation and evaluate it concerning its advantages and disadvantages in the respective system, but also hypothetically if transfered to the compared system.

The practical use of comparative work are of high value for numerous purposes: Results do have, of course, a major impact on academic discussion and foster legal development, ideally decison-makers positively. Comparative knowledge is of central importance within legislation procedures and political work. Major law reform projects are generally prepared by thorough legal comparative research. Besides, argumentation in Politics is often based on facts gained through legal comparison. Comparative knowledge forms the understanding of law, legal culture and the functional patterns of society on general and is therefore an essential part of legal education.

 Tartu likool, Introduction to Comparative Law (OEIO.06.062), Autumn semester 2011/2012 On Wednesdays, 18.15 20.00, Nituse 20, Room 114 Dr. Thomas Hoffmann, LL.M.

Comparative Law is a central tool within legal unificiation projects, on an European as well as on an International level.

VI. Exercise:
The Comparative Method applied to Domestic Problems case sketch on GREENSPAN v. SLATE, 12 N.J. 426, 97 A.2d 390. Taken from Schlesinger/Baade/Damaska/Herzog, COMPARATIVE LAW CasesText-Materials, pp. 2-6 and handed out in class.

VI.

Literature

1. Overviews
- Konrad Zweigert / Hein Ktz, Introduction to Comparative Law, Oxford University Press 3rd ed. (1998) - Mathias Reimann / Reinhard Zimmermann, The Oxford Handbook of Comparative Law, Oxford University press (2008) - Michael Rainer, Introduction to Comparative Law, Manzsche Verlags- und Universittsbuchhandlung (2010) -Peter de Cruz, Comparative Law in a changing world, Routledge-Cavendish 2nd ed. (1999) - Rene David, John E.C. Brierley: Major Legal Systems in the World Today, Stevens & Sons Ltd; 3rd edition (1985)

2. Case collections and Casebooks

- Rudolf Schlesinger, Comparative Law Cases-Text-Materials, Foundation Press, 5th ed. (1987) - Harald Koch / Ulrich Magnus / Peter Winkler von Mohrenfels, IPR und Rechstvergleichung, 3rd ed. (2004) (in German) - Mary Ann Glendon, Paolo G. Carozza, Colin B. Picker, Comparative Legal Traditions: Text, Materials and Cases on Western Law, (American Casebook Series) West Group 3rd ed. (2006)