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).

Comparative Law Before and After 1900

When it comes to comparative law, the year 1900 marks a turning point. In the Summer of 1900, the Congress of Comparative Law took place in Paris, as an addendum to the World Exhibition. It is the starting point of a continuous stream of scholarly work on the functions and methods of comparative law.

Before the 1900 conference, comparative legal science* consisted of a patchwork of various bouts of research with comparative law elements to varying degrees. Thus, the ancient Greeks – Plato and Aristotle in particular – used comparative law for their philosophical elaborations on the ideal constitution. By contrast, the Romans did not deign foreign laws worthy of consideration for they were convinced of the absolute superiority of their own law. Subsequently, there were sporadic epochs of comparative law research, mostly in England, Germany, and France. Unfortunately, they lacked long-term academic impact and failed to establish comparative law teaching and research at universities.

The Paris Congress of 1900 set out to change this deplorable state of comparative legal science by first and foremost establishing it as a scientific discipline worthy of representation within universities. While the congress had its shortcomings (and I will discuss them in a later post), it still managed to create a momentum for comparative law up until this day. In particular, it prevented comparative law from falling behind in legal academia. Today, some comparative law is part of most university curricula – though comparative legal science is still not accorded the role that its relevance for law in general would warrant.


* Comparative law as a practical harmonization tool has been used more continuously since the mid 19th century.



Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law (1998), pp. 48-62.