Raymond Saleilles was one of the driving forces behind the Paris International Congress of Comparative Law in 1900 (Congress). The idea behind this event was that organizing this conference in the framework of the famous Paris World Exposition would draw a broader international audience to the subject of comparative law.
The program of the Congress consisted of a scientific and a practical part, though more emphasis was placed towards the former. The four main goals of the Congress were as follows:
- determine a methodology to analyse diverse legislation;
- define the role of comparative methods in teaching law;
- highlight the relevance of comparative law analysis for national legislation, judicial interpretation and international agreement;
- discuss mechanisms for making foreign law more accessible.
Overall, the Congress was methodology-heavy, meaning that its main focus was to envision a way that would facilitate consideration of comparative law in practice (e.g. legal translation) and thus establish comparative law teaching within the university curriculum. No original scientific works of comparative law were discussed. Also, the Congress had a strong continental imprint. Though some jurists from England and the United States attended, common law was completely left out of the picture.
In retrospect, one can argue that the Congress marks the culmination as well as the end of the first phase of comparative law research. The main attributes of this phase are discovery and initial use of comparative law methods for drafting and eventually unification of laws. Comparative law was mostly seen as harmonization tool. In this context, with some distinct exceptions, mainly similar legal systems were considered and compared which essentially limited this kind of comparative law research to continental Europe and its laws.
- David S. Clark, Centennial World Congress on Comparative Law: Nothing New in 2000?Comparative Law in 1900 and Today, 75 Tul. L. Rev., 871, 875-888 (2001).
- Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law (1998), p. 59.
In France, comparative law had a difficult stand due to the publication of the Code Civil in 1804. Accordingly, in the first half of the 19th century, French jurists adopted a strictly positivist view, focusing entirely on the explicit wording of the Code Civil and its application. This system was very static and did not leave space for interpretation or development.
Towards the second half of the 19th century, Raymond Saleilles (1855-1912) worked hard to break the status quo. In his view, the Code Civil constituted a valuable source of law that unified the laws in France that existed at its time of inception. For Saleilles, however, the law did not stop there, but was subject to continuous evolutionary forces from society. Consequently, interpretation of the Code should not merely follow its explicit wording. Instead, Saleilles promoted a historical method of interpretation influenced by Savigny and considering comparative elements of law.
Saleilles’ vision for comparative law was universalist. He saw approximation or harmonization of laws as the ultimate goal of a comparative legal science. In this regard, he studied the legal development in late 19th century Germany that led to the German Civil Code in 1900. With his work, Saleilles managed to establish comparative law as an academic discipline. In 1901, a department for comparative (private) law is created at Paris University of which he became the first chair.
- Daniel Mainguy, Bio des Juristes: Saleilles, http://www.daniel-mainguy.fr/page-5099505.html.
- Nicolas Mathey, Le Code Civil et le Développement de Droit vu par Raymond Saleilles, in: 1804-2004. Le Code Civil. Un Passé. Un Présent. Un Avenir. (2004), p. 221.
Towards the end of the 19th century, the comparative method found its way into German jurisprudence through the work of Joseph Kohler. Legal anthropologist,ethnologist and historian, Kohler was one of the most prominent representatives of neo-hegelianism viewing law as the expression of social culture. In particular, Kohler suggested that law was based on past culture that was consciously adapted to the present. Law (though inherently stable) became thus still susceptible to continuous improvement.
Kohler was especially intrigued by other cultures. Based on his mindset as neo-hegelianist, he thought that all ethnic groups have norms that can be seen as laws. He was particularly interested in the legal customs among the tribes of the German colonies. In order to shed a light on these customs, Kohler developed Fragebogen (questionnaires) that were distributed to administrators and missionaries in the German colonies. Unfortunately, although the questionnaires were dutifully answered and collected, the answers merely shed partial light on the legal customs of the indigenous tribes. The underlying reason was that the questions were drafted by German jurists that were unable to strip themselves of their own dogmatic. As a result, individual cases and real life situations were neglected in this search for general rules that did not exist.
Regardless of the eventual failure of the project, Kohler’s work can be seen as the beginning of the new era of comparative law in Germany. His activity overlapped with that of Ernst Rabel who lastingly shaped modern comparative law research. In addition, Kohler’s research focus as well as his methodology have recently experienced a renaissance. Thus, a modified and improved questionnaire method is used in the Common Core project. At the same time, legal ethnology and the interest in legal culture are very popular and relevant in current comparative law research.
- Edwin Borchart, Jurisprudence in Germany, 12 Columbia L Rev. 301-320 (1912).
- Grossfeld et al., Rechtsvergleicher – verkannt, vergessen, verdraengt (2000).
- E. Adamson Hoebel, The Law of Primitive Man (2006).
- Roscoe Pound, The Ideal Element in Law (1958).