Early Comparative Law in the United States – Emancipation through Comparative Law

In the first half of the 19th century, comparative law was very much en vogue in the United States. Two names are worth mentioning here: First (and foremost), Joseph Story, a Supreme Court judge and author of the Commentaries on the Constitution of the United States. Second, James Kent, Chancellor of New York and author of the Commentaries on American Law. Both gentlemen are known for their interest in continental European Law, French law in particular, which shaped their reasoning as well as their decisions and made them strong partisans in the American post bellum codification movement – the quest for an American code!

Other than in England, the consideration of comparative law in the United States was more comprehensive. The recourse to foreign laws was not just for practical (i.e. political) purposes, but represented the ideology of an illustrious group of lawyers with ties to the judiciary as well as legal academia. In fact, at that time, the curriculum of Harvard law school (where Joseph Story was faculty) included references to Roman and French law.

Such fascination for civil law by common law jurists is remarkable. It has to be seen in the context of the recent independence from England and the resulting urge to distinguish American law from British common law. Over time, however, these emancipation efforts ebbed away and the interest in comparative law ran dry.

Bibliography

  • G Blaine Baker, Story’d Paradims for the Nineteenth-Century Display of Anglo-American Legal Doctrine (Angela Fernandez and Markus D. Dubber, eds. 2012) 82, 106.
  • Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (1985).
  • Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law (1998), p. 57.

Early Comparative Law in England – Necessity not Curiosity

It was in England that comparative law first emerged as a subject of interest in the early 19th century. At that time, England was a colonial power and interaction between domestic and foreign law was unavoidable. In fact, the Privy Council, the highest court of the Empire, regularly had to consider foreign legal issues. In order to satisfy the growing need for a compilation of foreign laws, William Burge published his Commentaries on Colonial and Foreign Laws, generally, and in their conflict with each other, and with the law of England. As the title suggests, Burge did not merely summarize the law in force in the British colonies. Instead, he compared the local laws in the colonies of the West Indies and North America with other foreign laws, notably

  • the law of Holland (before the French Code Civil was introduced);
  • Spanish law;
  • the coutumes of Paris and the Normandy;
  • the French Code Civil;
  • Scots law;
  • English law;
  • the laws of the United States.

Consequently, Burges work constitutes one of the earliest comprehensive treatises on comparative private law. His Commentaries found followers well beyond England, on the Continent and overseas. Did it spark a movement toward comparative law as a legal discipline? Unfortunately not. Burge’s goal was a practical one: to make the relevant foreign laws known to members of the Privy Council. It did, however, not constitute the beginning of an academic movement interested in comparative law. Burge’s work was more or less one of its kind at that time grown out of necessity rather than academic curiosity.

Bibliography

  • Burge’s Commentaries on Colonial and Foreign Laws Generally and in Their Conflict With Each Other and With the Law of England (Renton and Phillimore eds., 1907), available here.
  • Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law (1998), p. 56.

Comparative Law Before and After 1900

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.

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* Comparative law as a practical harmonization tool has been used more continuously since the mid 19th century.

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Bibliography

Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law (1998), pp. 48-62.