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.
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