BulletPointsummary with the 1st edition of Comparative Law by Siems

Why is there a need to compare laws? Ch.1

• Most lawyers are completely trained in the law of their own jurisdiction. When they leave the borders of their own country, they can feel lost. Comparative law aims to address this problem. Harold Gutteridge states that a literal interpretation of term ‘comparative law’ is impossible, since it does not have its own subject-matter, such as contract or family law. This problem is reflected in the status quo of comparative law.

• According to some authors comparative law is a label for apply a comparative method to legal research: comparative study of law or comparative legal studies. Other authors have a more substantive focus, comparative law is regarded as a body of knowledge.

Which method should be used for comparing laws? Ch.2

• Not all comparisons that involve particular legal questions are part of comparative law. For example, comparative law is not about comparing past laws with current laws.

• The core interest is in the laws of countries. So this excludes inter- and supranational laws on the one hand an on the other had regional and municipal laws.

• There is a disagreement on the question of whether or not translate foreign legal terms. If it is not straightforward to translate, the comparatist may also create neologism or develop ‘a socio-legal Esperanto which abstracts from the language which is used by the members of different cultures’.

• The comparatist has to consider all law. Legal theorist and philosophers argue about the meaning of ‘law’, but the comparatist ahs to be pragmatic and treat as law that which the people of the legal system in question view as law.

• To do comparative law, the description of laws has to be followed by the identification of similarities and differences. A frequent approach is to distinguish between the formal and functional aspects.

• Functionalism may be helpful for the analysis of non-Western societies, since it may be shown that informal structures within these societies fulfil certain functions equivalent to the state in the Western world.

• Legal universalism will be a problem for comparative law, since it would make comparisons obsolete. But, in reality, it is clear that legal rules are not completely uniform across the world.

How to classify all the legal systems in the world? Ch.3

• The main codes for civil law, commercial law, criminal law, civil procedure and criminal procedure emerged in the 19^th century.

• It’s been said that European law-makers focus on public-interest regulation and common law focuses on the market-failure regulation.

• The main feature of the contract law in a common law country is that it places strong emphasis on the predictability of the results of a case. In contrary the contract law of a civil law country its principle of good faith has been related to Kantian principles of personal freedom of will and personal responsibility.

• Even though, England and the United States are both common law countries, several significant differences can be identified. The constitutional structure of both countries is very different.

• It is justified to talk about a comprehensive Western legal tradition, but the different countries are definitely different. This has to do with ideas like capitalism, liberal values, individualism, Christianity or the Enlightenment.

• The distinction between countries with or without codes has lost its relevance. This is because in civil law countries the main codes are no longer seen to be the most important sources of law and common law countries are said to have reached the ‘age of statutes’.

How to map the legal systems of the world? Ch.4

• Jaakko Husa has stated that various legal families are based on things like: history, legal style, codification level, structure of court system, economical basis of law, role of tradition in law, philosophy of legal thinking, etc.

• Methodologically, two approaches can be distinguished: on the one hand, it has been said, that the legal systems have evolved historically into real types of family. But, on the other hand, the comparative lawyers have developed ‘ideal types’ of legal families.
  Hybrids are often equated with the mixed legal systems, but the mixed legal systems are only one of its sub-categories.

• Another form of hybridity is the horizontally divided legal systems, also called ‘bijural’. This concerns differences between regions of a particular legal system. The vertical division between areas of law is also called ‘legal polytheism’.

• You can talk about a parallel legal system when a legal system applies the rules of different legal traditions to different persons. For example, India, where different legal regimes are applicable to Hindus, Muslims and Christians.

What is postmodern comparative law? Ch.5

• Postmodern comparative lawyers have an interest in the way concepts and words are understood at home and abroad.

• The postmodernist is said to start from the premise that reasoning, language and judgement are determined by inescapable and incommensurable epistemic, cultural, linguistic and moral frameworks.

• Postmodern legal scholars state that the law should not mainly be seen as a technical tool, but it has to be seen as part of culture.

• The comparatist has to be open as to the precise role that cultural factors can play in a particular legal question.

• Another important view of deep-level and postmodern comparative law is that it argues that law has to be understood in a wide sense: as legal pluralism.

• The view of law as discourse has as core element the belief that a particular subject is shaped by our own preconceptions and the language we use to describe it.

Which socio-legal approaches are there to compare laws? Ch.6

• Some studies use socio-legal approaches to comparative law. Some of them are based on quantitative data, some on qualitative data or a mixture of both.

• The term ‘legal culture’ goes beyond the ‘law in books’ and considers the ‘law in action’.

• One of the key topics of the comparative counterpart of socio-legal research has been the examination of similarities and differences in civil litigation, in particular litigation rates, the number of lawyers and judges and the ease of litigation.

• The qualitative comparative socio-legal research focuses on the details on the details of particular legal systems, so on the differences between legal systems, akin to the postmodern comparative research.

• The quantitative comparative socio-legal research may be better able to show the similarities between apparently different legal systems, akin to its traditional counterpart.

What is the numerical comparative law? Ch.7

• Lord Kelvin (1883) stated the following: ‘when you can measure what you are speaking about and express it in numbers, you know something about it, but when you can’t measure it, when you can’t express it in number, your knowledge is of the meagre and unsatisfactory kind’.

• The citations of foreign case law are a sign of judicial comparativism. There is a growing effort to evaluate these cross-citations quantitatively. Most of these researches have a time dimension.

• Following the approach of the Common Core Project, a comparative researcher can also start with a hypothetical problem in order to examine how this problem would be solved in different legal systems.

• The combination of legal data with non-legal ones has been criticised. On the hand the criticism concerns the choice of indicators, on the other hand, it is difficult to know whether and how to aggregate data.

• The scholars and policy actors have combined the indicators and approaches in different ways. Some of the combinations are mainly aggregates of data collected by other organisations.

• It is not clear which one of the three methods (conducting surveys, counting empirical facts, coding legal rules) is preferable.

What are legal transplants? Ch.8

• Legal transplants are seen as a smart way of choosing a foreign legal model that has proven to work well.

• Not only the transplant country (the importer), but also the origin country (the exporter) may have an interest in the transplant.

• The soft forms of influence can start by simply making the domestic law accessible to the foreign readers. Going further, a country can start discussions with other countries in order to promote its own law. A more heavy form of influence is an ‘externally-dictated transplant’.

• The reception of Roman law is seen as a early example of legal transplants in Europe. Another popular object of the legal transplants has been the French Civil Code.

• Since the Second World War, and moreover since the fall of communism, US law has played a growing role in continental Europe. The US transplants concern a variety of topics.

• From the researches can be concluded that in non-colonial non-Western countries, the experience of legal transplants show many similarities to those of colonial and Western countries: the laws have been frequently transplanted, affecting the local environment, but not in a naive and mechanical way.

• France and the US are often seen as the origin countries of codified human rights.

What is the role of state borders in the comparative law? Ch.9

• The primary interest of traditional comparative lawyers is to explore legal differences and similarities between countries. So for this type of research the existence of state borders is very important.

• The modern laws are being called ‘practical, problem-solving and technical’ and they don’t differ much from country to country.

• To understand international law, it can be relevant to take a look at the domestic laws, because international laws can be based on the legal concepts which already exist at the domestic level.

• ‘Convergence of laws’ means the trend that legal phenomena become more similar. They don’t have to become identical.

• ‘Transnational law’ can, in general, refer to any law that transcends national states. When you see it more narrow, the focus is most of the time not on laws that are only relevant to a particular territory, such as a region.

What role does comparative law play in development? Ch.10

• Also other countries and organisations played an important role. For example the Millenium Declaration of the UN General Assembly, the World Health Organization or the World Social Forum.

• A distinguish can be made between procedural (or formal) aspects and substantive ones.

• The rule of law also discusses topics like the structure of the courts, the availability of access to justice or the operation of trials. It is controversial whether it should also include the standards about the way laws are enacted.

• The mainstream view is that law matters for economic development. But this have been challenged, since it ignores the crucial role of culture and politics.

• The western countries and international organisations are often accused of a ‘top-down’ approach to law and development. This means that they try to impose Western or global standards on developing countries.

• As far as the law and development is based on models from Western legal systems, another line of criticism is that the use of those models can be inappropriate in other parts of the world.

How does 'implicity' deals with the comparison of laws? Ch.11

• A distinction can be made between research that uses comparative information as a tool to understand the relations between variables, and comparative research which is interested in particular units for their own sake.

• Comparative qualitative and case-study research are not identical, because a case study can, for example, also include quantitative time-series date.

• Qualitative research can also deal with a large number of cases.

• Most of the qualitative researchers are reluctant to draw causal conclusions from case studies, but other are more interested in possible causal relationships.

• Classifying countries on basis of policy choices is closely related to the way legal systems are classified into legal families.

• In comparative politics, the political economy and social policy, two classifications can be distinguished. The first one is the distinction between ‘three worlds of welfare capitalism’ and the second is that of ‘varieties of capitalism’.

• Anthropology has a natural affiliation with the universalities, because it aims for the elucidation of the human condition.

Which conclusions can be made about comparative law? Ch.12

• It has been said that comparative law is an open subject and that it can absorb further research which is not traditionally included.

• The view that today’s legal world can be divided into common law, civil law and other legal families can be challenged.

• Research in other fields can be helpful, because it can show the availability and advantages of policy choices.