Comparative Law in France – In the Shadow of the Code Civil

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,
  • 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.

Comparative Law in Late 19th Century German Jurisprudence

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).

Early Comparative Law in the United States – Emancipation through Comparative Law

In the first half of the 19th century, comparative law was very much en vogue in the United States. Two names are worth mentioning here: First (and foremost), Joseph Story, a Supreme Court judge and author of the Commentaries on the Constitution of the United States. Second, James Kent, Chancellor of New York and author of the Commentaries on American Law. Both gentlemen are known for their interest in continental European Law, French law in particular, which shaped their reasoning as well as their decisions and made them strong partisans in the American post bellum codification movement – the quest for an American code!

Other than in England, the consideration of comparative law in the United States was more comprehensive. The recourse to foreign laws was not just for practical (i.e. political) purposes, but represented the ideology of an illustrious group of lawyers with ties to the judiciary as well as legal academia. In fact, at that time, the curriculum of Harvard law school (where Joseph Story was faculty) included references to Roman and French law.

Such fascination for civil law by common law jurists is remarkable. It has to be seen in the context of the recent independence from England and the resulting urge to distinguish American law from British common law. Over time, however, these emancipation efforts ebbed away and the interest in comparative law ran dry.


  • G Blaine Baker, Story’d Paradims for the Nineteenth-Century Display of Anglo-American Legal Doctrine (Angela Fernandez and Markus D. Dubber, eds. 2012) 82, 106.
  • Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (1985).
  • Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law (1998), p. 57.