Comparative Law as Harmonization Tool

The Common Core Project strives to extricate the commonalities of European private laws. One would think that the ultimate goal of the project is to achieve a common European private law. That is, however, not the case. According to its website, the Common Core Project is explicitly descriptive in nature (as opposed to normative).

This project only seeks to describe the present complex situation in a reliable way. While we beli[e]ve that cultural diversity in the law is an asset, we do not wish to take a preservationist approach. Nor [do] we wish to push in the direction of uniformity. This is possibly the most important cultural difference between the Trento project and other very publicized enterprises such as the Unidroit Pr[e]inciples (and probably also the Lando commission) which are doing city planning rather than chartographic drafting.

This abstention from any participation in harmonization efforts seems odd. Traditionally, at the beginning of the 20th century, one of the primary objectives for comparative law as a discipline was to counteract the legal nationalism of the 19th century by creating uniform laws. Yet half a century later, in 1968, René David defines unification of laws from a comparative law perspective as an enlightenment rather than a rule-drafting effort.

The task of unification might possibly consist, without having the immediate appearance thereof, in harmonizing the different laws by effectuating an understanding about the significance of certain concepts, on certain modes of rule formulation, and on the recognition of authoritative sources […] a type of unification which is not an immediate attempt to unify the rules of law.

So why did comparative law become a-political? There is no straightforward answer to this question. Maybe the two World Wars disillusioned comparatists and alienated them from political engagement. Maybe the Cold War made it difficult to engage in a more global comparative enterprise. Indeed post-war comparative law is marked by a shift away from politics towards methodological discussion.This shift made the discipline much more academic … and much more restricted. Thus, according to Konrad Zweigert and Hein Kötz, comparative law is a legal discipline distinct from others that may also deal with foreign law.

The neighboring areas of legal science which also deal with foreign law, and from which comparative law must be distinguished, are private international law, public international law, legal history, legal ethnology, and finally sociology of law.

In its current form, comparative law is an eclectic discipline with very few insiders – mostly experts privy to more than one legal system – whose work is strictly academic focusing on comparative law theory and methodology. This exclusiveness is benefit as well as plight. On the one hand, it assures high quality comparative law research. On the other hand, comparative law is thus predestined to lead a rather marginal existence.

Bibliography

  • René David, The Methods of Unification, 16 Am. J. Comp. L. 13-27 (1968).
  • David Kennedy, The Methods and the Politics, in Comparative Legal Studies: Traditions and Transitions 345-433 (2003).
  • Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (1998).

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