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.

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.


  • 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.

The European Union as a Mixed Legal Sytem

In my last post, I mentioned the role of the European Union (EU) as a vehicle to converge civil and common law. Today, I am going one step further by discussing whether the EU can be considered a mixed legal system. On the one hand, such a classification may seem evident. On the other hand, it is quite unusual to describe a transnational system as a mixed jurisdiction. So the question is whether the EU can be classified as a mixed legal system. If yes, EU law could draw inspiration and learn from the way things are handled in mixed jurisdictions.

Mixed jurisdictions traditionally combine common and civil law elements in an obvious way. Usually common law takes charge of public law, while civil law governs the private law side. While this definition is very simplistic and does not do right to the diversity among non-traditional mixed jurisdictions, it will serve the purposes of this post – determining whether the EU meets the standards of a mixed legal system.

So does the EU combine civil law and common law in an obvious way? According to a previous post, civil law is characterized by more generalized, codified laws, while common law distinguishes itself by rather specialized case law. Prima facie, the EU has a large body of treaties and regulations that may be seen as codes. Its law is also further shaped by case law by the European Court of Justice (ECJ). Thus, the EU merges civil law and common law elements. Decisions by the ECJ, however, resemble more interpretative decisions by civil law courts than creative rulings by common law courts.

Consequently, the EU does not fulfill this first criteria and can therefore not be considered a mixed jurisdiction in the traditional sense. Instead, the EU is a brainchild of civil law countries that was assigned to the few common law members. This situation is the exact opposite of the way mixed legal systems historically developed. In that regard, mixed jurisdictions may still help in resolving issues of reception of EU law in common law member countries.


  • Valentine Vernon Palmer, Mixed Jurisdictions … and the Myth of Pure Laws, 67 LA L. REV. 1206-1218 (2007).
  • Colin B. Picker, International Law’s Mixed Heritage: A Common/Civil Law Jurisdiction, 41 VANDERBILT TRANSNAT’L L. REV. 1083-1138 (2008).
  • William Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified), 60 LA L. REV. 618-738 (2000).