Just looking at the keywords of some recently published law review articles gives you the impression that comparative law is nearly everywhere. Even US courts in their decisions are now increasingly referring to the state of law abroad. Foreign law has even found its place in the current confirmation hearings of Supreme Court nominee Sonia Sotomayor. Does this mean that we are finally witnessing the emergence of comparative law as a fully respected legal discipline? Unfortunately not really. While certainly a rising awareness of foreign laws is applaudable, such cursory hints to foreign legal solutions – with the main intent of adding another point to a domestic legal argument – may very well dilute the concept of comparative law as a legal discipline. In order to prevent this from happening, this post intends to clarify the scope of comparative legal studies.
Basically, comparative legal studies can be divided into two main groups: macro-level comparison and micro-level comparison. While the former undertakes the comparison of two or more legal systems as a whole, the latter describes the analysis of a specific legal issue and how it is treated in two or more legal systems. Thus, if you compare the entire German and the US legal system, you do a macro-level comparison. If, on the other hand, you are interested in a juxtaposition of the ways contracts are made in the United States and Germany respectively, you would compare the two laws on a micro-level.
Sure enough, the macro-micro-level distinction is only a cursory one. On the substantive side, the following five main groups of comparative legal studies have been distinguished:
- comparing one or more foreign legal system(s) with the domestic system;
- analyzing the solutions different legal systems offer for a legal problem;
- investigating the causal relationship between legal systems;
- contrasting the different stages of various legal systems; and
- examining the general legal evolution.
In any event, a comparative legal study requires a balanced and thorough analysis of two or more legal systems or some aspects thereof (as opposed to just mentioning the legal situation in a foreign country).
Interested in more? Feel free to browse the archive and consider subscribing to comparelex.org!
——
Source
PETER DE CRUZ, COMPARATIVE LAW IN A CHANGING WORLD 7 and 227 (2nd ed. 1999).
