When it comes to comparative law, the year 1900 marks a turning point. In the Summer of 1900, the Congress of Comparative Law took place in Paris, as an addendum to the World Exhibition. It is the starting point of a continuous stream of scholarly work on the functions and methods of comparative law.
Before the 1900 conference, comparative legal science* consisted of a patchwork of various bouts of research with comparative law elements to varying degrees. Thus, the ancient Greeks – Plato and Aristotle in particular – used comparative law for their philosophical elaborations on the ideal constitution. By contrast, the Romans did not deign foreign laws worthy of consideration for they were convinced of the absolute superiority of their own law. Subsequently, there were sporadic epochs of comparative law research, mostly in England, Germany, and France. Unfortunately, they lacked long-term academic impact and failed to establish comparative law teaching and research at universities.
The Paris Congress of 1900 set out to change this deplorable state of comparative legal science by first and foremost establishing it as a scientific discipline worthy of representation within universities. While the congress had its shortcomings (and I will discuss them in a later post), it still managed to create a momentum for comparative law up until this day. In particular, it prevented comparative law from falling behind in legal academia. Today, some comparative law is part of most university curricula – though comparative legal science is still not accorded the role that its relevance for law in general would warrant.
* Comparative law as a practical harmonization tool has been used more continuously since the mid 19th century.
Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law (1998), pp. 48-62.
As a sequel to my last post, I would like to draw attention to a conference that will be held in June this year on Comparative Law: From Antiquity to Modernity. Here is an excerpt from the current call for proposals:
The conference organisers encourage proposals which have both comparative and historical elements. Submissions on any era of legal history will be considered, as will papers on comparative and historical methodologies. However, any comparative topic may be proposed, eg private law, criminal law and criminal justice, public or constitutional law, legal education, etc. In addition, proposals on European or International law will also be considered.
Proposal deadline is in two weeks, on January 30th.
Comparative law and legal history are two disciplines with slightly differing focal points: comparative law looks at legal developments across space while legal history focuses on evolution of laws over time. Yet, every study in comparative law should have a historical component as the characteristics of each legal system as well as the fact that legal systems may share some commonalities generally can be explained by history. In fact, the very assumption of legal families or legal traditions/cultures that is so prevalent in comparative law presupposes some historical connection.
The question then is how much effort in a comparative study should be devoted to historical research? Most publications in comparative law dedicate historical considerations only a minor part of the work, usually in the form of some introductory remarks on how the legal situation used to be. Yet, more in-depth research in comparative legal history has the potential of providing better insights into the core of legal traditions and their inter-relatedness.
In fact, in a world where cross-border legal transactions and collaborations become the norm, where courts and governments are increasingly inspired by their foreign counterparts, and where the need for international regulation of the many facets of life becomes more and more imminent, would it not make sense to take a step back and look at the roots in order to find common denominators? A quick study of the current literature, however, shows that research in comparative legal history proper is rather scarce. The most likely reason for this is that the area of comparative legal history is quite complex as it requires intimate knowledge of two or more legal cultures not just in their present form, but also in their past.
Unfortunately, a thorough study in comparative legal history is beyond the scope of this blog. Still, I plan to devote the upcoming contributions to history: the history of comparative law and its main protagonists and the history of legal traditions.
Comparative Law and Legal History in the United States, 46 Am. J. Comp. L. 1 (1998, Supplement)