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)