Comparative Law: A Theoretical Framework

Author(s): W. J. Kamba
Source: The International and Comparative Law Quarterly , Jul., 1974, Vol. 23, No. 3
(Jul., 1974), pp. 485-519
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law

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 COMPARATIVE LAW: A THEORETICAL
FRAMEWORK

By

W. J. KAMBA *

INTRODUCTION

THE years since the end of the Second World War have witnes
dramatic resurgence of interest and activity in comparative l
cursory reading of the calendars and prospectuses of most univer
that offer law degrees in Great Britain and in many other cou
reveals that comparative law is now widely recognised as an i
tant part of legal education. Apart from the universities ther
various institutes or organisations devoted mainly or partly to
parative legal research. These universities and organisations sp
an increasing number of conferences and colloquia, and, bet
them, publish an impressive list of periodicals which are ch
concerned with comparative law or which from time to time
articles of particular interest to legal comparatists.
Never before has comparative legal study and research attr
the attention and energies of so many eminent lawyers, both
the profession and from the universities. The spate of book
articles on particular comparative topics during the last three
bears testimony to this development. There is no doubt that
days are over when comparative law represented an aca
pastime good only to add a scholarly touch to footnotes in l
articles.1
Yet, in spite of this greatly increased and increasing interest, c
parative law still lacks a clearly formulated and widely ac
theoretical framework within which specific comparative legal stu
and research may be undertaken in a meaningful and eff
manner-a framework which would also be valuable to th
practitioner for the recognising and handling of legal pro
involving foreign law.
This article is written in the hope that it may contribute s
thing towards stimulating discussion which may hopefully l
the formulation of a useful theoretical framework.

* Lecturer in Comparative Law, University of Dundee.

1Hazard, " Comparative Law in Legal Education " (1951) 18 U.Chi.L.Rev. 264
485
23 I.C.L.Q.-1

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486 International and Comparative Law Quarterly [VOL. 23

The problems may be posed by asking four questions:

(1) What does the term comparative law mean?
(2) Why does, or should, one engage in comparative legal
study or research? (i.e., the functions of comparative
law).
(3) What is it that the legal comparatist compares? (i.e., the
subject-matter of comparative law).
(4) How should meaningful and effective comparison be
carried out? (i.e., the process of comparison).

The answers to these questions would in effect provide a frame-

work for specific studies.

I. THE MEANING OF COMPARATIVE LAW

What is comparative law? At the outset one is faced with a difficulty

which stems from the use of the term "comparative law." It
suggests a distinct branch of national law such as family law,
criminal law, contract, and the like, which comparative law is not.
The ambiguity has contributed to much of the controversy and mis-
understanding that have plagued comparative legal studies and
research for a long time. One consequence has been, as Myres
McDougal remarks, "a literature that is voluminous, obsessively
repetitious and sterile...." 2
The method of comparison is an integral part of thinking and
knowing. Consequently it is employed, in varying degrees, in all
areas of human endeavour. As Hall so aptly put it: "To be
sapiens is to be a comparatist." 3 Throughout history the compara-
tive technique has contributed to most break-throughs and advances
in all the natural and social sciences. Comparative law signifies
the systematic application of the comparative technique to the
field of law. It means the study of, and research in, law by the
systematic comparison of two or more legal systems; or of parts,
branches or aspects of two or more legal systems.
As has been intimated earlier comparative law does not con-
stitute a distinct branch of national law, that is to say, a body of
law comprising normative prescriptions for the regulation of human
conduct and relationships. There are no rules or principles of com-
parative law. This is what Kahn-Freund meant when he said: " The
trouble is that the subject he (i.e., a professor of comparative law)

2 Myres S. McDougal, " The Comparative Study of Law for Policy Purposes: Value
Clarification as an Instrument of Democratic World Order" (1952) 1 Am.J.
Comp.L. 24, 29.
3 Hall, Comparative Law and Social Theory (Baton Rouge, 1963), p. 9.

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JULY 1974] Comparative Law 487

professes has by common consent the somewhat unusual charac-

teristic that it does not exist." 4 Nor does the systematic use of the
comparative method result in legal norms which can be designated
comparative law. Neither does such comparison result in a common
or unified type of knowledge which can be described as comparative
law. Though, as will be shown later, the knowledge and information
gained by comparing legal systems or their components may aid
the legislator or judge to fashion rules or principles of positive law.
Convenience and historical accident seem to account for the
choice and continued use of the somewhat misleading name " com-
parative law." Other names which would more accurately designate
the subject have been suggested-names such as "the comparison
of laws," "the comparative study of law or laws," " comparative
legal study and research." 5
Although the adoption of any of these expressions would assist
in eliminating one of the sources of misunderstanding and contro-
versy, none has so far succeeded in displacing the term " comparative
law." The term, as Gutteridge observed, "has become so firmly
established that it must be accepted, even if it is misleading. ." 6
However, in recent years there has been an increasing use of the
expressions the " comparative study of law " and " comparative legal
study and research." These phrases and " comparative law" will be
used interchangeably in this article.
It would seem that today the definition of comparative law given
above would meet with the general approval of most comparative
lawyers and scholars. But some distorting notions, the relics of past
controversy, persist and their discussion will be necessary. In the
past, particularly before the publication of Gutteridge's classic,
Comparative Law, first edition in 1946, many writers sought to define
or re-name comparative law by reference to what they considered to
be its proper object or objects. Even the exponents of the view that
comparative law is a type or body of legal knowledge-an autono-
mous branch of legal science in particular and social science in
general-supported, and still support, their claims by reference to
the functions of comparative law. This view was dominant at the
First International Congress of Comparative Law held in Paris in
1900. Salleilles, one of the leading participants at the Congress,

4 Kahn-Freund. " Comparative Law as an Academic Subject " (1966) 82 L.Q.R.

40, 41; Gutteridge, Comparative Law (2nd ed., Cambridge, 1949), p. 2, is to the
same effect.
5 See Gutteridge, op. cit., Chap. 1, for a discussion and criticism of some of
the names that have been suggested.
6 Ibid., p. 1. This observation is supported in substantially the same words by
David & Brierley, Major Legal Systems of the World Today (1968), p. 2, n. 4.

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488 International and Comparative Law Quarterly [VOL. 23

maintained that comparative law is a " science " whose object is the
discovery of concepts and principles common to all "civilised"
systems of law, that is to say, universal concepts and principles which
constitute what he called droit ideal relatif. Lambert, another
eminent comparative lawyer and reporter of the proceedings of the
Congress, urged, after distinguishing between comparative law as a
legal technique and as a legal science, that as a legal science it had
a purely scientific object, namely: " the discovery . . . of the causes
which underlie the origin, development and extinction of legal
institutions, or, in other words, comparative legal history." 7 The
identification of comparative law with the " scientific method " dis-
played at the Congress reflects the dominant influence in the forma-
tive stages of comparative law as a branch of legal scholarship. Hall
points out that the minutes of the Congress: "contain illuminating
evidence of the theoretical foundations of the new discipline and
of the intellectual background of these comparatists. It is plain that
they were under the influence of Comte's sociology and the progress
of biology, especially the theory of evolution." 8
Among those associated with the view that comparative law is
a "science " are such eminent legal comparatists as Levy-Ullman,
Kohler, Arminjon, Nolde, and Wolff, Rabel and Brutau on the
Continent, and Yntema, Rheinstein and Hall in the United States.
Rheinstein is perhaps the most ardent contemporary exponent of
this view. He argues that comparative law belongs to the realm of
the exact sciences "when its cultivator tries to observe, describe,
classify and investigate in their relations among themselves and
and to other phenomena, the phenomena law." 9 He goes on to
say:
Comparative law in that sense is the observational and exactitude-seeking
science of law in general . . . it endeavours to collect, observe, analyse,
and classify them and, like other sciences in the narrow sense of the
word, it searches for typical collocations, coincidences, and sequences, or,
in other words, for "laws "-... laws of the kind of Newton's laws
of gravitation or Gresham's law in economics . . . laws . . . in which the
word is understood in modern natural science.... 10

Rheinstein here clearly treats comparative law as a "scientific

method." He states that in his academic teaching of comparative
law he includes comparative law in the sense of sociology of law."1
Gutteridge cogently demonstrated the futility of defining com-
parative law by reference to its functions. Comparative law, as

7 See Gutteridge, op. cit., p. 5.

8 Hall, op. cit., p. 16.
9 Rheinstein, "Teaching Tools in Comparative Law" (1952) 1 Am.J.Comp.L.
95, 98.
10 Ibid., pp. 98-99. 1l Ibid., p. 99.

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JULY 1974] Comparative Law 489

defined above, embraces any legal study or research by the systematic

use of the comparative technique and this includes study and
research aimed at the discovery of "universal" concepts and
principles or aimed at the discovery, formulation or verification of
"natural laws" regarding legal phenomena. But, comparative legal
study and research need not entail an exclusive commitment to such
aims. As will be shown later, such functions are only some of several
objects of comparative law. To define all comparative legal study
and research as a " science " in this sense would be to confine it to
such and similar objects to the exclusion of many other perfectly
legitimate and widely accepted functions, as, for example, the pro-
motion of legislation and law reform, the harmonisation or
unification of laws.
It should be emphasised that comparative law is the systematic
application of comparison to law. Casual reference to, say, German
law in a course on the English law of contract is not comparative
law. It is part of the object of this article to determine what "the
systematic application of the comparative technique to law" entails.

II. THE FUNCTIONS OF COMPARATIVE LAW

One of the main factors that impeded progress in compar

studies was the absence of a systematic and comprehensive
and appreciation of the functions of comparative law. A
comparative law was regarded as "nothing more than an
puzzle "; as long as its study was undertaken primarily b
offered a " chance to satisfy idle curiosity," it was unlikely t
the attention of many lawyers and scholars or to make m
way as a discipline in legal studies curricula. By 1942 Sch
was able to declare: " No lawyer would embark on a co
legal study without intending that his endeavours should
either by him or by others." 12
The clarification of its functions is, therefore, necessar
appreciation of its value and importance. Moreover,
purpose for which a particular project of comparative
research is undertaken will, to a large extent, dictate the
legal systems or topics to compare and the method of com
There have been many discussions on the functions
parative law. To Maine, generally regarded as the fou
comparative law: " The chief function of comparative juri
is to facilitate legislation and the practical improveme

12 Schmitthoff, " The Science of Comparative Law " (1939) 7 Camb.L.J. 9

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490 International and Comparative Law Quarterly [VOL. 23

law." 1' Maine's view of the chief function of the subject influenced
the expositions of most legal comparatists after him. The first
serious attempts to formulate the aims of comparative law made
at the 1900 Paris International Congress can be seen to foreshadow
this general tendency. As already indicated, legal comparatists, in
their various attempts to define or re-name comparative laws
emphasised what appeared to them its appropriate or only function
or functions. It was Gutteridge who effectively made the important
point that comparative law serves a wide variety of purposes. " [I]f
the comparative process," he said, "is to meet with success, it is
eminently desirable, if not essential, that its employment should
not be hampered by confining it to specified categories .. .14
Recently the point was well put by a distinguished Professor of
Comparative Law: " Comparative law is not in bondage to, or even
in the service of any one particular purpose, not even that of legis-
lation, for which it is extremely useful." 15 It is therefore important
to recognise that there are several closely related academic and
practical aims which may be served by the systematic application of
the comparative technique to legal study and research. The existence
of multiple objects also means that a comparative lawyer enjoys con-
siderable freedom in deciding which of these purposes to pursue in
any particular study.
For convenience these functions will be considered under six
general headings-headings which should not be regarded as
exhaustive or in any way watertight compartments.
(1) Academic Studies.
(2) Legislation and Law Reform.
(3) The Judicial Process.
(4) Unification and Harmonisation.
(5) International Law.
(6) International Understanding.

Academic Studies

There are two main aspects involved: one relates to the teaching
and study of law and the other to legal research.

(a) The teaching and study of law

In this respect the role of comparative law very much depends
on our conception of the objective of legal education. A large pro
portion of students who read law at universities and similar institu

13 Maine, Village Communities, (1871), p. 4.

14 Gutteridge, op. cit., p. 26.
15 Hamson, The Law: Its Study and Comparison (1955), p. 22.

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JULY 1974] Comparative Law 491

tions will enter the legal profession as barristers, solicitors, law

teachers, and later, if they are able and fortunate, as judges, or will
pursue careers in which a legal training is necessary or valuable.
As a result of enormous technological advances and rapid indus-
trialisation during the past century or so, societies all over the world
have, in varying degrees, undergone rapid and profound socio-
economic changes-changes which have generated new and complex
social and economic problems whose solution in turn has resulted
in new and complex forms of legal control. The law-both legisla-
tive and judicial-has also become more intricate and requires more
specialisation. Apart from having to respond to new needs, the
law has in recent years increasingly become a vehicle for promoting
and guiding social and economic change. In these circumstances it
is not surprising that the job of the modern lawyer has also become
complex. Legal education must fulfil at least the following three
functions:
Firstly, it must cultivate the attributes and skills which are
needed by lawyers. These include: the ability to reason methodically,
the capacity of independent thought and a questioning and critical
attitude to almost everything that is presented to him as true, false,
good, bad, right or wrong. Secondly, it must provide the student
with a sound knowledge and proper understanding of the principles
and techniques of national law. Thirdly, it must provide the student
with a broad-based education. Law is about people, their conduct
and relations in society. Its practice, administration, and improve-
ment, therefore, call for a wide and deep knowledge of human
nature and an understanding of modern society and life.
Comparative law is especially suited to promote these objectives.
When one is confined to the study of one's own law within one's own
country and, thus within one's own cultural environment, there is
a strong tendency to accept without question the various aspects
(norms, concepts, and institutions) of one's own legal system. One
is inclined to think that the solutions of one's own legal order are
the only possible ones. This leads to an idealisation of one's own
legal institutions and to treating them as inherent in the general
nature of law. In the words of Lepaulle: "Where one is immersed
in his own law, in his own country unable to see things from without,
he has a psychologically unavoidable tendency to consider as
natural, as necessary, as given by God things which are simply due
to historical accident or temporary social situations." 16 Not to
travel outside the borders of one's own law thus tends to foster the

16 Lepaulle, " The Function of Comparative Law " (1922) 35 Harv.L.Rev. 838.

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492 International and Comparative Law Quarterly [VOL. 23

kind of legal isolation and parochialism which David and Brierley

castigate in these terms: "Judicial nationalism is provincialism and
irreconcilable with a truly scientific spirit; it impoverishes and indeed
is dangerous to the development and even application of national
law." 17

A further unfortunate tendency which may result from looking

at one's own legal order from within is that of treating the law as
a self-contained system of legal norms in isolation from the social
and economic context in which it operates. In fact, although the
scene is fortunately changing, this accords with the orthodox method
of teaching and studying law in many countries of Western Europe
and North America, under which the underlying socio-cultural
assumptions need not be, and as a general rule are not, articulated.
They are taken for granted even when the reasons for making them
have ceased to exist. This way of teaching and studying law creates
an environment in which legal education becomes introverted and
tends to produce mere technicians. As David and Brierly put it:
" The withdrawal by jurists into the exclusive study of their own law
means that they may become mere technicians inept to guide, as is
their mission, its development." 18 Comparative law liberates one
from the narrow confines of the individual systems. It is one of the
most effective instruments for gaining a better knowledge and deeper
understanding of one's own legal system. " [T]he work of com-
paring laws and institutions is very necessary, for the only way to
perceive any object clearly is to compare it with something else." 19
Lepaulle is to the same effect: "I never completely understood the
French law before coming to the U.S. and studying another sys-
tem." 20 Comparative law makes the student aware of the fact
that the institutions, the laws and methods of his own legal system
are not the only possible ones in the world; that there are diverse
ways in which different legal systems respond to similar types of
social and economic problems.
The discovery of other legal possibilities, not only stimulates the
students' curiosity and imagination, but puts into question the solu-
tions of his national law. The student is compelled to question
the soundness of the solutions, norms and many other aspects of
his own law, to inquire into the whys and wherefores of the institu-

17 David and Brierly, Major Legal Systems of the World today (1968), p. 8.
18 David and Brierly, op. cit., p. 8.
19 Howe, " Course in Comparative Jurisprudence " (1899), pp. 2-3, quoted by Wagner,
" Research in Comparative Law: some Theoretical Considerations," in Essays
in Jurisprudence in Honour of Roscoe Pound, ed. Ralph A. Newman (India-
napolis, 1962), pp. 511, 513.
20 Lepaulle, op. cit., p. 858.

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JULY 1974] Comparative Law 493

tions. He is prompted to question and investigate the inarticulate

assumptions on which the institutions of his own law rest. All this
must inevitably lead to reflection, to the development of a critical
mind, and to new insights into his own legal system.
Comparative law will further impress upon the student the fact
that a legal system is closely connected with the social and
economic environment in which it operates. Comparison, as a
popular pastime, may be content with merely identifying differences
and similarities between the things compared, but comparative law,
being systematic, goes further and seeks to explain the differences
and similarities. The reasons or causes of such divergencies and
resemblances are often non-legal; they are to be found in the socio-
economic milieu. In other words comparative law serves to
emphasise the interdependence between law and other social
phenomena. The line of inquiry that it impels must increase one's
understanding of the law, sharpen one's intellectual faculties, and
broaden one's outlook. It also enables one to evaluate one's own legal
system. In the words of Professor Hamson:
The dispassionate external, critical or appreciative study of a system of
law, at which the comparative method aims, does enable us, lawyers and
laymen alike, to form some estimate of the relative value of the various
parts or principles of our law in its function as a social institution in
our society.21

And again,
It is a good deal easier to have a dispassionate and clear view of our
own system of law, of its advantages as much as of its disadvantages, if
we begin to see it in the contrasts which it presents to another system; if
we look at it in the tell-tale mirror of that other system which may reject
as strange or even barbarous our most established and unquestioned
principles.22

Comparative law teaches one the value of modesty: it makes one

aware of the fact that there is much to learn from the experiences of
other legal systems, and thus promotes the cross-fertilisation of ideas
and experience:
Whoever seeks rational solutions of perplexing social problems-remarks
Schlesinger-sooner or later will recognise that there is much to be
gained, not only by learning from the successes and failures of other systems,
but also by a broader perspective which a comparative approach provides.23

Just as comparative law promotes greater insight into one's own

legal system, it also contributes to the better understanding of the
foreign system or systems of law embraced in the study. This, as

21 Hamson and Plucknett, The English Trial and Comparative Law (1955), p. 6.
22 Ibid., pp. 7-8.
23 Schlesinger, " The Role of the ' Basic Course' in the Teaching of Foreign and
Comparative Law " (1971) 19 Amr.J.Comp.L. 616, 618

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494 International and Comparative Law Quarterly [VOL. 23

will be shown later, has important practical value in the day to day
application of the law.

(b) Legal research

The preceding discussion was concerned with the role of com-
parative law in the teaching and study of law. But legal education
is more than the transmission of existing legal knowledge. It also
involves research, on the part of scholars, that is to say, " the con-
stant refinement and extension of our knowledge of law. .. ." 24
In fact the whole process of legal education is incomplete without
legal research. In this area comparative law has been closely
associated, and sometimes identified, with jurisprudence or aspects
of it. All schools of jurisprudence-the historical, the sociological,
the philosophical, the analytical etc.-rely on comparative legal
research as part of their particular endeavours. It is impossible to
see how jurisprudence can exist without comparative law.25
Global systematic legal comparison is essential for an accurate
definition of law as a social phenomenon and for the understanding
of the nature of law and its function in society generally. Compara-
tive law is indispensable to the legal theorist or legal philosopher:
(i) for the formulation of general theories of law: generalisation
must proceed by way of bringing together a number of
particular instances of law i.e., legal systems.
(ii) for the testing of these general theories, for instance, how
universal is the Western idea of law-with its close associa-
tion with specialised agencies for its making, interpretation,
application and enforcement? How far do the traits of
Western legal systems represent the characteristics of legal
orders in all societies? The answers to these questions can
only be given satisfactorily by comparative legal research.
Comparative legal research is also a sine qua non for the legal
scholar-be he a legal historian, legal sociologist, or social scientist
-seeking to discover and formulate scientific "laws" of legal
evolution and development or " laws " about the correlation between
the law and other social phenomena, i.e., the construction of
generalisations modelled after those of the natural sciences. This
is what Maine attempted to do in his two classics.26 He sought to
determine the general process of legal evolution by comparing dif-
ferent legal systems and institutions. A variant of this type of

24 Yntema, "Comparative Legal Research: Some remarks on 'Looking out of

the Cave ' " (1956) 54 Mich.L.Rev. 899, 901.
25 Paton, A Textbook of Jurisprudence (4th ed. 1972), p. 41.
26 Maine, Village Communities (1871) and Ancient Law (1861).

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JULY 1974] Comparative Law 495

comparative law is Lambert's Comparative Legal History which has

already been referred to, which aims at " the discovery by means of
a process of comparison of the causes which underlie the origin,
development and extinction of legal institutions." As indicated
earlier, comparative legal research in this sphere is identified with
the "scientific method ": it is regarded as performing the same
function that comparison performs in the natural sciences. In fact
Yntema confines legal research to the scientific study of law which,
he states:
. . . involves two things: the formulation of more or less general
propositions about the subject matter under scrutiny and their verification
by observation, the ultimate ends being increased accuracy and economy
in the representation of experience. The principal techniques employed in
this process of the formulation and verification of hypotheses to ascertain
whether they are true, are: controlled experimentation in which the
possible variables are previously fixed, or comparison of relevant historical
events, whether in time or in place or more typically both, serving to
cancel out variables.27

Yntema then proceeds to equate legal research with comparative

law, "In this sense Comparative law is another name for legal
science, an integral part of the more comprehensive universe of
social or human science." 28 Reference has already been made to the
views of some of the contemporary comparative legal scholars-
Rheinstein, Hall, Brutau-who have championed this function of
comparative law. There is no doubt that it is an important objective.
The error, as pointed out earlier, which some of these distinguished
legal scholars have fallen into is to regard this as the sole aim of
comparative law.
Mention should be made of another jurisprudential purpose of
comparative legal research-a purpose mainly espoused by the
analytical jurisprudents-namely, the discovery of elements, con-
cepts, principles, institutions-common to all or certain (for example
" mature ") systems of law. This was the subject matter of Austin's
"General Jurisprudence." It was emphasised by Salleilles at the
Paris Conference; he regarded it as necessary for the construction of
an international common law.

Legislation and Law Reform

Comparative law fulfils one of its most important practical assign-
ments when it is employed as an aid to the legislative process and to
law reform by legislation. Some comparatists have regarded this as
the principal function of comparative law. Although Maine's pri-
mary contribution to comparative legal scholarship was not in regard

27 Yntema, op. cit., p. 902. 28 Ibid., p. 903.

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496 International and Comparative Law Quarterly [VOL. 23

to this object, he none-the-less declared: "The chief function of

comparative jurisprudence is to facilitate legislation and the practical
improvement of the law." 29 It was to emphasise this object that the
French and English Societies were named respectively the " Societe
Frangaise de Legislation Comparee" (1869) and the Society of
Comparative Legislation (1895). In fact one of the major factors
that have facilitated the general recognition of comparative law
especially after the Second World War has been its increasing use
in relation to legislation and law reform. Only evidence demonstrat-
ing its practical value could dispel the legal practitioner's distrust
and sometimes antagonism towards what was considered a theoretical
and purely " academic " exercise.
Legislation and law reform are closely bound up because the
former has become the main instrument of creating and changing
as well as improving the law in modern States. (The limited amount
of law-making and law-reform which occurs through the judicial
process will be referred to later.) There are at least three main
problems which render the use of comparative law highly desirable
and beneficial in this area:

(a) In the creation of new rules and solutions or modifying or

abolishing existing ones. Through the legislative process new rules
and solutions are devised to deal with new or existing problems,
or old rules or solutions are modified or abolished. Where existing
rules or solutions are abolished it may be intended to do away with
legal regulation altogether. The experience of other systems of
law would be, and has in the past been shown to be, valuable not
only in suggesting a foreign legal institution or solution as a model
or guide, but also in showing what solution to avoid. As observed
by Tallon:
Assuredly, to resort to a foreign model is not an innovation. .. Its aim
is not to find a foreign institution which could be easily copied, but to
acquire ideas from a careful survey of similar foreign institutions and to
make a reasonable transportation of those which may be retained,
according to local conditions.30

The extent to which foreign law may be used as a model ranges from
the study and occasional adoption of foreign legal institutions and
ideas to the wholesale reception of foreign legal institutions. Many
countries of the "Third World " provide one of the most striking
examples in modern times of the utilisation of foreign legal experi-
ence. In grappling with the problems of modernising their systems
of law to meet the needs of a modern industrial state, they have

29 Maine, Village Communities (1871), p. 4.

.30 Tallon, " Comparative Law: Expanding Horizons " (1969) 10 J.S.P.T.L. 265, 266.

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JULY 1974] Comparative Law 497

relied heavily on foreign legal material and experience. They have

adopted and adapted, in varying degrees, aspects of Western or
Socialist laws. In undertakings of this nature there is always a danger
that foreign legal institutions and ideas may be adopted without
sufficient adjustment to local circumstances. Where this has
happened it has often been with disastrous effects. Comparative law
has an invaluable contribution to make by preventing the uncritical
copying of foreign law.

(b) The second problem area which calls for the employment
of comparative legal study and research in legislation and law reform
is in regard to the technique of drafting or formulation of legislation.
[A]ny intelligent group of draftsmen, states Morrow, charged with
a task of any importance, will consider similar legislation in other states,
and perhaps in England, and will not confine their efforts necessarily to a
restatement of what they conceive to be " the law " of their jurisdiction.31

The application of comparative law here is more limited and tends

to be confined to systems which are closely related and operate in
countries which have similar socio-economic conditions, for example
legal systems of the " older " countries of the British Commonwealth.

(c) The third problem area is concerned with the question of

practicability and enforceability of the proposed law. Experience
gained by one legal system as to the effectiveness of some legal solu-
tions may be most valuable to another. The American experience
regarding "prohibition" served a strong warning to many countries
that entertained the passing of similar legislation. In Great Britain
there has been for many years hesitation to making collective agree-
ments in Industrial Relations legally binding. The main problem
was thought to be the difficulty of enforcing such agreements. Before
the passing of the 1971 Industrial Relations Act references were
made to experience in other countries-the difficulties encountered
concerning enforcement, the sanctions relied upon to ensure
observance and so on. There is no doubt that a solution to such
problems would be greatly eased by the use of comparative
law.

In many countries comparative legal inquiry is now accepted

as an important preliminary to most legislation and law reform. In
Great Britain comparative legal investigations directed at this pur-
pose have been, and to a substantial extent continue to be, done by
individual jurists, unofficial bodies such as Justice, the British Institute
of International and Comparative Law, and, at the official level, by
ad hoc Royal Commissions and (since the end of the Second World

31 Morrow, " Comparative Law in Action " (1951) 3 L.Legal Ed. 403.

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498 International and Comparative Law Quarterly [VOL. 23

War) by the various Law Revision and Law Reform Committees.

Since 1965 responsibility for most of this work has devolved upon
the two Law Commissions (one for England and Wales and the
other-the Scottish Law Commission-for Scotland) set up under
the Law Commissions Act of 1965. The Act gave statutory recog-
nition to the utility of comparative law by providing in section 3 that
the Law Commissions are under a duty: " to obtain such information
as to the legal systems of other countries as appears to the Commis-
sioners likely to facilitate the performance of their functions." A
reading of many of the reports of the Commissions shows how exten-
sively this provision has been utilised. In some Continental countries
it has been, for the greater part of this century, the accepted practice
to precede important legislation with a comparative survey of
pertinent legislation in other countries. In France the stamp of
official recognition to the value of comparative law was first accorded
as far back as 1876 when a committee attached to the French
Ministry of Justice was created, whose main purpose was to inform
judges about foreign law. In Germany the Government of th
Federal German Republic relies on a number of well-equipped
institutes-such as the Max-Planck and Institutes-for comparative
legal studies and research and for advice on matters relating t
legislation and law reform.
In the United States on the national level the American Law
Institute established in 1923 undertakes a great deal of comparativ
legal studies and research aimed at law reform and general restate
ment of the law. The Institute's purpose, as set out in its constitution,
is " to promote the clarification and simplification of the law and
better adaption to social needs, to secure the better administratio
of justice, and to encourage and carry on scholarly and scientifi
legal work." At the States' level leading examples of agencies
which make extensive use of comparative law for legislative and
law reform purposes are the Louisiana Law Institute and the New
York Revision Commission. The former was created by the
Louisiana Legislature in 1938 as an " official, advisory law revision
commission, law reform agency and legal research agency of the
State of Louisiana." Its main purposes were stated to be:
"to promote and encourage the clarification and simplication of the
law of Louisiana and its better adaption to present social needs; to secure
the better administration of justice and to carry on scholarly legal
research and scientific legal work."

With the world becoming more and more inter-dependent com-

parative legal activity in this field will continue to increase.

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JULY 1974] Comparative Law 499

The Judicial Process

Comparative law has an important part to play in national judicial

processes. Courts are increasingly confronted with various types
of problems which can be dealt with more efficiently by invoking the
aid of comparative legal study and research.

(a) Cases of first impression

No system of law is so complete as to be without any gaps. In
systems of the common law tradition lacunae occur in cases which
are not plainly covered by legislation or binding judicial precedents
In systems of the civil law tradition gaps are said to exist when there
are no code provisions directly in point. It is the function of the
courts to fill up gaps and in doing so comparative legal studies can
be of great assistance. Acquaintance with the law and practice of
foreign courts may not only suggest possible and preferable solutions
but also indicate possible but undesirable ones. It may be said that
at this point the judicial function converges with the legislative
function, and extends to the court's important and implicit, though
limited, power to mould and adapt the law to meet changing con-
ditions i.e., power to effect reforms by the judicial process. So that
the points made in the preceding pages apply mutatis mutandis to
judicial law-making.

(b) In the elucidation in national law of concepts and principles

which have a foreign origin
Many systems of law have in varying degrees imported or have
had imposed upon them principles, concepts and institutions from
other legal systems. The " hybrid " or " mixed " systems of Scotland
South Africa, Louisiana, Quebec offer fascinating examples of an
admixture of civil and common law elements. Many countries of
the "Third World," for example Sub-Sahara Africa, provide a
striking and even more fascinating mixture of elements of various
western systems and indigenous customary systems of law. Com-
parative law is an invaluable tool for the elucidation, understanding
and intelligent application in domestic courts of the institutions
which originated in other systems of law.
" [T]he problem presents itself retrospectively to the lawyer or judge,"
states Schlesinger, "who in applying existing law discovers that the
pertinent rule is an imported one, and who thus may be compelled to
trace its foreign antecedants." 32

32 Schlesinger, Comparative Law: Cases-Text Materials [1960], p. 10.

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500 International and Comparative Law Quarterly [VOL. 23

(c) In the application of foreign law in national courts under the

Conflict of Laws
With the ever-expanding international trade and travel in a
rapidly shrinking world an ever-increasing number of transactions
which cut across national boundaries is entered into. As a result
national courts are, to an extent greater than before, involved in
the settling of disputes which contain elements of foreign law. In
such cases the court is aided by the internal rules of conflict of
laws under which it has to determine firstly whether it is com-
petent to deal with the dispute i.e., whether it has jurisdiction; and
secondly, if it is competent, what system of law governs such a
dispute i.e., the choice of law. Under the choice of law rules a
national court may be directed to apply foreign law or laws. Com-
parative law is invaluable in dealing with the choice of law problem
and, where this is the case, in the application of foreign law.
In order to invoke the appropriate choice of law rule the court
may have to characterise a rule or concept of foreign law. For
instance, it may have to determine whether a rule of foreign law
relates to capacity to marry or to the formalities of marriage; or
whether a rule is concerned with procedure or substantive law.
This process requires not simply an acquaintance with but an
understanding of the foreign law involved. Even if one has not got
a good working knowledge of the foreign system, comparative law
would assist in indicating how to set about inquiring into such law.
A comparative lawyer would know that it would be folly to dash
to the nearest library and simply look up the relevant provision of
say the French Civil Code for the solution. He would also know
that it would be misleading to consider a rule of any legal system in
the abstract, and that the written provision of the French Civil
Code is not all the law on the point.
Comparative law is essential where say the English Conflict of
law rule points to a foreign system as being the law to govern the
matter in dispute. The court has to ascertain the nature and con-
tent of the foreign law and apply it. Under English law and most
common law jurisdictions the relevant foreign law is treated as a
matter of fact and, like other facts, must be proved by evidence-
expert evidence i.e., the evidence of persons with a practical know-
ledge of the legal system in question. Comparative law will assist
judges and practitioners to ask proper questions of the expert and
to understand and apply the foreign law. It is not suggested that the
judge or practitioner be himself an expert in foreign law.
"No lawyer," Schlesinger points out, "not even one who has devoted
his whole life to comparative legal studies will truly master all the law

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JULY 1974] Comparative Law 501

of all countries. What distinguishes the ' Comparatist,' is that his tech-
nique enables him intelligently to deal with a (practical or theoretical)
legal problem arising in terms of a ' foreign ' legal system, i.e., of a
legal system with the details of which he is not necessarily familiar." 33
Comparative law is also indispensable to the practitioner who is
generally engaged in the negotiation and conclusion of transnational
transactions. In order to communicate with his opposite numbers, in
order to advise his clients well the practitioner must not only have
a knowledge of foreign law but must understand it in relation to
his own.
" It will never be true that many American practitioners will be really
skilled in French law, or if I venture to say so, that very many French
jurists will be at home in an American Courtroom. It is not necessary
that this [state of affairs should change].... When the occasion arises,
however . . . it is possible and desirable that the lawyer from each
jurisdiction shall have that modicum of understanding and of familiarity
with concept and language which will make it possible for him really to
grasp an opinion of local counsel." 34

The Unification and Harmonisation of Laws

Comparative legal studies and research have a great contribution
to make to the unification or harmonisation of laws. Unification
signifies the process whereby two or more different legal provisions
or systems are supplanted by a single provision or system: it creates
an identity of legal provisions or systems, whereas harmonisation is
designed to effect an approximation or co-ordination of different
legal provisions or systems by eliminating major differences and
creating minimum requirements or standards. What has given
rise to the problem of unification or harmonisation is, of course, the
existence of a large number of diverse legal systems in the world.
Each independent State has its own individual system of law and quite
frequently several systems co-exist within the same State whether
such State is constituted as a federal or unitary State. There are
three levels at which the unification or harmonisation of laws
may occur: the international or world-wide level; the regional level;
the national level.

(a) International or world-wide level

At the 1900 Paris International Congress of Comparative Law
Lambert urged that the practical function of comparative law is to
provide material which would form the basis of a general unification
of those national systems of law which have attained the same
degree of development or "civilisation " and their replacement by
33 Schlesinger, Comparative Law, p. 19, n. 5.
34 Jessup, Foreword to Aglion's Dictionnaire Juridique Anglais-Francais (1947) p. 14,
quoted by Schlesinger, Comparative Law, p. 24, n. 1.

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502 International and Comparative Law Quarterly [VOL. 23

an international common law. The underlying assumption was

the belief in the existence of basic elements-principles, concepts,
and institutions-common to all " civilised " systems of law and that
these could be ascertained by the use of comparative law. Although
the idea of a world-wide law exerted a great deal of influence on
the development of comparative legal studies and research and on the
various movements for unification which flourished in Europe
in the post World War I years, research and experience have demon-
strated that it is a "pious hope " which is neither attainable nor
desirable under existing world political and social conditions. It
is now readily conceded that unification at the international level
is only feasible and desirable in more limited spheres of law such
as: commercial law, maritime law, conflict of laws, and in new areas
such as space law, broadcasting law and atomic law. Harmonisation
has better prospects because while eliminating or minimising major
extant legal obstacles, it allows for a certain amount of variation in
matters of detail. It is thus not surprising that since the beginning
of this century it has been steadily coming to the fore.

(b) Regional level

Unification or harmonisation stand a greater chance of success
at the regional level. States situated in the same geographical area
may be highly conscious of their regional affinity because of their
cultural homogeneity and similar historical background-as is the
case with Scandinavian countries-or the States may be organised
in a regional community for the pursuit of some common purpose or
purposes-as is the case with the European Economic Community.
The realisation of such regional consciousness or common purpose
or purposes creates a necessity for a regional legal order in various
respects and the need for the unification or harmonisation of some
aspects of the legal systems of the member States. The need for
unification or harmonisation is rendered more pressing by the close
inter-relations which develop among the regional States: because of
a greater circulation of goods and services, and a freer movement
of people many transactions occur which involve regional law and
the laws of the member States.

A large measure of success at the regional level has been marked

in the Scandinavian countries about which Professor Malmstrom
has said: " [I]t may be declared that no-where in the world have
efforts for the unification of law, made on a regional scale, been so
successful as in Scandinavia." "5 The United States bears some of

35 Malmstrom, Die Zusammenarbeit der nordischen Staaten auf dem Gebiet der
Gesetzgebung. Ergebnisse und Erfahrungen; Zweigert (ed), Zusammenarbeit,

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JULY 1974] Comparative Law 503

the features of a regional community of States. The fifty member

States enjoy a high degree of autonomy and there are fifty State
legal systems plus the federal system. But being a federal union not
only are there cultural ties, but the constitutional bonds are much
stronger and the common objectives have a much greater unifying
effect than in the Scandinavian countries. Consequently the need for
the unification or harmonisation of their laws is much more pressing.
Canada is another example akin to the United States.

(c) National level

At the national level the unifying or harmonising process is con-
fined to the diverse laws found within the unitary State. For example
in the United Kingdom within which five systems of law co-exist,
namely; the legal systems of England, Scotland, Northern Ireland,
The Channel Islands, and the Isle of Man. The states of sub-Sahara
Africa present one of the most striking examples in modern times of
internal or national legal diversity and efforts at unification and
harmonisation. In these territories legal dualism or pluralism has
been a dominant characteristic since the colonial era. Two, and
sometimes three, different types of law or legal traditions operate
simultaneously in the same country. On the one hand you have sys-
tems of indigenous customary law and on the other the imported
western law which may be an off-shoot of the common law or civil
law tradition. Added to this in most of the West African and East
African countries you have yet another legal tradition-Islamic law.
The new governments are now grappling with the problems of
(i) adapting the indigenous customary law to the needs of the
emerging industrial states and (ii) of forging a single system out of
the different legal traditions. Quite often they have to be content
with harmonisation, which some governments regard as a temporary
measure.

In all cases of unification or harmonisation, com

is an indispensable pre-requisite. A thorough unders
various systems sought to be unified or harmonised is
parative legal studies and research are necessary not
actual unification or harmonisation but also for t
determining whether it is feasible, desirable or usefu
of a uniform or harmonised law is not the end of t
achieve its purpose it is necessary to secure uniform
possible, of interpretation and application in the seve
adopting the law. For this comparative law is necess

18-32, quoted by Rene David "The International Unification

(1971) 2 Int.Encyc.Comp.L., Chap. 5, p. 180.

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504 International and Comparative Law Quarterly [VOL. 23

become self-perpetuating. This is particularly so at the international

and regional levels.
International Law

One of the important tasks of comparative law is in the sphere

international law. Comparative law is useful not only as an aid to
the ascertainment but also to the creation, formulation and applic
tion of principles of international law. Article 38: 1 of the Statu
of the International Court of Justice provides that the Internation
Court
whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
(a) International conventions, whether general or particular, establishi
rules expressly recognised by the contesting states;
(b). ..
(c) the general principles of law recognised by civilised natio
(d) . . .
In regard to clause (c) Schlesinger has remarked: "The phrase
'general principles of law recognised by civilised nations' refers to
principles which find expression in the municipal laws of various
nations. These principles, therefore, can be ascertained only by the
comparative method." 36
As regards clause (a) international conventions and treaties play
in the international sphere, the role that legislation fulfils in national
law. They have become an important means of creating new, and
of modifying or abolishing old principles of international law. Com-
parative law is essential for the performance of all these functions.
It facilitates communication among the lawyers and parties involved
in the negotiation, preparation and drafting of the conventions or
treaties. To this must be added the fact that national courts are
increasingly called upon to interpret and apply international law
If this is to be done in an orderly and uniform fashion, the aid
comparative legal study and research must be summoned.

International Understanding
A more modest, but nonetheless valuable function of comparativ
law is its assistance in reducing international tensions and the pro
motion of international understanding and peaceful relations. In
his opening paragraph Hall states:
The differences among human beings often dissolve in the discovery of
their basic similarities and, in any case, they become intelligible when
viewed in the context of a known pattern. Limited as we are, we begi
with self-knowledge and self-love, and when we discover ourselves in
ever-widening dimensions of common experience, friendship and affection

36 Schlesinger, Comparative Law, p. 25.

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JULY 1974] Comparative Law 505

increase. This is the underlying emotional basis of comparative study in

law and social science...37

Law is a critical facet of any society. Its study is an important if

not indispensable key to the understanding of society and human
nature. Comparative law being transnational, is therefore an
important means of understanding societies generally, of under-
standing the essential nature of man and the intimate and enduring
bonds that unite mankind " in the constant endeavour to maintain
and advance the cause of justice." 38
This role of comparative law was recognised by the preparatory
Committee which met at the UNESCO Conference in March 1949,
to form an International Committee for Comparative Law. In its
final declaration it proclaimed: "We are in agreement not only
that the legal profession throughout the world owes a duty to the
peoples from which it springs to unite in an effort to overcome such
of the tensions and understandings dividing the world community as
lie within its special speres of competence." 39
Other distinguished comparative legal scholars have expressed
views which are in similar vein:
" The lawman," states Papale, " who is called upon to solve our inter-
national problems must have a knowledge of the political philosophy and
of the legal systems of foreign nations. Such knowledge is vital to the
maintenance of friendly relations with foreign countries and to the
removal of tension areas." 40

The same author again states: "It is only lawmen who can fully
appreciate the legal traditions and institutions of other nations and
thereby fully understand their legal systems. Who then can more
adequately represent our nation in the deliberations that will take
place? "41 Clearly comparative law promotes understanding of each
other's outlook, each other's point of view and respect for differences.

III. THE SUBJECT-MATTER OF COMPARATIVE LAW

In terms of the definition, the subject-matter of comparative law

is two or more legal systems; or parts, branches or aspects of two
or more legal systems, i.e., if one may adopt Rheinstein's rather
convenient terms, macro-comparison or micro-comparison. The
former is concerned with two or more entire legal systems: while
micro-comparison is limited to aspects or topics of two or more legal
systems. Studies which concentrate on a single foreign system of

37 Hall, op. cit., p. 3.

38 Yntema " Comparative Legal Studies in the U.S. Research in the Inter-American
Law at the University of Michigan," Acta III (1953), Pt. 1-2, p. 101.
39 For Text of Declaration see Schlesinger, Comparative Law (1st ed. 1950), p. 30.
40 Papale, " Why Comparative Law? " (1951) 3 J.Legal Ed. p. 384.
41 Papale, ibid., p. 385.

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506 International and Comparative Law Quarterly [VOL. 23

law or some aspects of it have sometimes been referred to as com-

parative law. This extension of the meaning of comparative law
is unjustified and should be discarded. Surely comparison implies
the existence of two or more entities. An entity cannot be com-
pared with itself. There must, therefore, be two or more systems
of law involved. This is the essence of comparison and comparative
law. A suggestion by some legal scholars that the study of a foreign
system may involve implicit comparison with one's own legal system
does not take the matter any further. Systematic comparison should
be confined to explicit comparison and for that at least two or more
systems of law are essential. Nor should the study of two or more
legal systems in the same book with no thread connecting them be
brought within the purview of comparative law.
A legal system in the wide sense-and this is the sense which it
bears in the definition of comparative law given-" is not made
of rules alone but is also characterised by its institutions, practices,
standards, methods of research and even the mental habit of lawyers,
judges, legislators and administrators." 42 In its narrow sense a legal
system is often equated to legal norms or system of legal norms.
These two shades of meaning must be borne in mind in reading
literature on comparative law. As mentioned earlier, there is an
enormous number of legal systems in the world: each independent
State has its own system of law and often two or more legal systems
may exist side by side within the same State. Consequently the
range of legal systems available for systematic comparison is with-
out effective limit. Macro-comparison may range from two legal
systems to the systems of the entire world, i.e., for example, in
terms of actual studies undertaken from such a work as Buckland
and McNair, Roman Law and Common Law, to David and
Brierly, Major Legal Systems in the World Today. The range of
topics for micro-comparison is infinite. The important questions that
arise are: What legal systems and what topics should be selected for
comparative study or research? How should such systems and topics
be selected? The immediate and obvious reply to both questions is
that the selection depends largely on the comparatist's primary
purpose in undertaking the study or research.

Choice of Legal Systems for both Macro- and

Micro-comparison
When Roscoe Pound wrote at the end of the last century he limited
the subject-matter of comparative law to what he then considered

42 Razi, " Around the World's Legal Systems " (1959) 5 How.L.J. 1, 11.

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JULY 1974] Comparative Law 507

mature legal systems, meaning thereby the Civil Law and Common
Law systems, i.e., systems within the Western cultural tradition.43
In fact for many years comparative lawyers focused on these systems
and tended to treat non-Western systems of law, particularly when
they were at a different level of development, as outside their sphere
and as more the concern of ethnologists and cultural anthropologists.
This attitude seems to have led some comparatists to maintain that
the legal systems to be compared must be comparable in the sense that
they have attained the same stage of legal development. According
to Gutteridge: " it is quite feasible, for instance, to compare the
law of the ancient races of the East with modern European law, but,
as Pollock observes, such comparison 'can lead to nothing but
ludicrous if not dangerous misunderstanding.' "44 He continues,
" Like must be compared with like; the concepts, rules or institutions
under comparison must relate to the same stage of legal, political
and economic development." 45 Gutteridge was endorsing a view
which Schmitthoff had expressed a few years earlier in these words:
"The strict observance of comparability implies . . . that the com-
parison must extend to the same evolutionary stage of the different
legal systems which are under comparison." 46
This view which has-expressly or implicitly-been supported by
some contemporary legal comparatists is unnecessarily restrictive.
Surely the question whether one selects (for comparison) systems of
law which are or are not at the same stage of development is to
a large extent determined by the principal aim or aims of the
specific comparative study or research. For a teacher of English
law in an English University, seeking to use comparative law to
illuminate his students' understanding of the English law of Contract
it would be imprudent and of little value to select for comparison
a non-western system of law in which the concept of status dominates
and the idea of contract is underdeveloped. On the other hand a law
teacher in an African University, who invokes comparative law as
an aid to increasing his students' comprehension of the modern
African law of matrimonial property, which is in many instances a
fusion of elements of Western law and non-Western indigenous
customary law, would find it essential to compare systems which
are at different stages of development, for example, English law,
and, say, Luo customary law. To take another example, the legal
scholar seeking to determine the function of law in society generally

43 Pound, " The Study of Common Law," 4 Nebraska Legal News (No. 36, July 25,
1896), p. 1.
44 Gutteridge, op. cit., p. 73.
45 Ibid.
46 Schmitthoff, op. cit., p. 96.

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508 International and Comparative Law Quarterly [VOL. 23

or attempting to test the universality of the Western idea of law

must surely compare systems of " all times and climes." 47 Even
Roscoe Pound in his later writings recognised this and modified his
original rigid position when he conceded: "we are concerned with
undeveloped systems only because and to the extent that they
help us understand and treat scientifically developed systems.... 48
One more example will suffice. For African countries in programmes
of law reform and unification, comparative studies of Western sys-
tems and indigenous customary systems of law are inevitable. But
where it is sought to reform, say, English commercial law or aspects
of it, it would not be fruitful to compare English law with a system in
which commercial law does not exist or is under-developed.
These examples are sufficient to show that the functions which
a comparatist emphasises may render the selection of certain systems
advantageous and preferable or even inescapable whether or not
such systems have reached the same degree of development. During
the last two decades or so there has been a steady increase in com-
parative studies and research which embrace western and non-
western systems of law. However, it must be conceded that for the
most part comparative legal studies and research have been, and
will continue to be, primarily concerned with systems of law which
are at similar stages of development. The two "families" of legal
systems which dominate the comparative law scene are those of the
common law and civil law traditions. In recent years a third major
group-namely, the Socialist Systems of law-has been steadily
coming into the comparative law fold. It seems obvious that the
making of an intelligent selection of legal systems demands on the
part of the comparatist a good conspectus or panoramic view of
the legal systems of the world. He must be grounded in the bases
or criteria for their classification and must have a good knowledge
of the characteristics of the major groups or families of systems.
The classification of legal systems, therefore, constitutes an important
aspect of comparative law but space does not allow its discussion in
this article.

Choice of Topics for Micro-comparison

The range of topics for micro-comparison is infinitely greater than
that of systems of law. Again the main purpose for undertaking the
comparative study or research to a large extent dictates the choice
of topics to compare. The topics may be concerned with:

47 Rheinstein " Teaching Tools in Comparative Law " (1952) 1 Am.J.Comp.L. 95, 98.
48 Pound, " Comparative Law in Scope and Time " (1955) 4 Am.J.Comp.L. 70.

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JULY 1974] Comparative Law 509

(a) the various characteristics of a legal system: the structure,

the sources of law, judicial systems and the judiciary, the
legal profession and so on;
(b) the various branches of national law;
(c) institutions or concepts;
(d) the historical development of legal systems.

It is essential that the topics selected be comparable in the sense

that they relate to equivalent institutions, concepts and so on; for
example, marriage in English law and its equivalent in, say, French
law. It is not always easy to determine equivalence. Where the
comparison is of closely related systems of law, e.g., common law
systems-such as the systems of most members of the British Com-
monwealth-there is little difficultly in identifying comparable or
equivalent elements and for the most part the counterparts will
even bear the same names. The greater the disparity between legal
systems the greater the difficulty of recognising comparable elements.
The difficulty is thus more acute where systems are at different
levels of development or belong to entirely different socio-cultural
backgrounds. The same or similar names may mean quite different
things in such systems; or the systems may use different bases for
classifying their legal norms. The search for equivalents should,
therefore, not be confined to institutions with similar or identical
names because terminology may offer no assistance at all. In such
circumstances the functional approach, which will be discussed in
the next section, seems particularly useful, if not indispensable.
Implicit in the view that the purpose of comparison is the main
determinant in the selection of legal systems and topics is the
fact that there are other factors which to a lesser or greater degree
influence such choice. There is a very strong and important element
of personal preference involved. This is particularly so where
emphasis is on the use of comparative law in academic studies.
Because the range of choice of systems and topics is without effective
limit, because comparative law has not got the recognised traditions
of most fields of legal study regarding subject-matter, a comparative
lawyer, in contrast to his colleagues in other fields of law, enjoys
what Kahn-Freund has referred to as one of the most dangerous
gifts that the Gods can bestow-the freedom to decide for himself
the fields (i.e., subject-matter) he wishes to cultivate.49 In fact
assertions by many comparative lawyers as to what legal systems or
topics to compare for academic purposes represent to a certain

49 Kahn-Freund, "Comparative Law as an Academic Subject" (1966) 82 L.Q.R.

40.

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510 International and Comparative Law Quarterly [VOL. 23

extent personal interest and preference. However, this freedom of

choice is conditioned by various other factors which include: the
comparatist's past experience, manageability of the subject-matter
and the time factor, the students' interests, accessibility of source
materials, and language.
That the comparatist's own knowledge and past experience will
influence the comparatist's choice of subject-matter would seem so
obvious as to require no elaboration. In exercising his freedom the
comparatist would be well advised to keep his choice within manage-
able limits. He " may and probably should limit his field of research
and teaching both in the geographical sense and as regards subject-
matter," 50 if this can be done without defeating the main purpose
of the comparison. In the teaching of law with more and more
courses competing for inclusion in the law studies curricula and
with less and less time being made available for the teaching of
those that gain acceptance, the choice of what to compare must be
such as can properly be accommodated within the time available. In
exercising his choice the comparative law teacher must broadly bear
in mind the possible interests of his students. He may also find his
selection limited by the availability (or non-availability) of source
materials and textbooks. This factor is closely associated with the
question of language. The more languages the comparatist can read
and write the greater the choice. For the English-speaking the
position is increasingly being eased by the availability of material
written in English on Continental systems particularly French law,
and to a lesser extent, German, Italian and Scandinavian legal sys-
tems. Over the last two decades a great deal of material has
accumulated on Socialist systems of law.
It is worth repeating here the advice given by Professors Kahn-
Freund and Lawson that the comparative law teacher must remain
flexible-more flexible than any other academic lawyer.51

IV. THE PROCESS OF COMPARISON

Having decided on the purpose or purposes for undertaking a specific

comparative project, and having selected the legal systems and topics,
the next problem is that of methodology: how should one carry
out the comparison in a systematic manner? The application of a
proper method is generally a pre-requisite for success in any area of
study. In comparative law it is of paramount importance because on

50 Kahn-Freund, op. cit., p. 42.

51 Kahn-Freund, op. cit., p. 42; Lawson, " The Field of Comparative Law " (1949)
61 Jur.Rev. 16, 36.

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JULY 1974] Comparative Law 511

it will depend: first, whether the specific comparative inquiry effec-

tively serves the function or functions which the comparatist has
decided to emphasise; and secondly, the accuracy and value of the
results secured and the validity of conclusions drawn.
The process of comparison is, perhaps, the most difficult aspect of
comparative law to clarify and there is little assistance to be derived
from extant comparative legal literature. This is partly because of a
certain amount of confusion that continues to prevail in discussions on
the functions and subject-matter of comparative law, and the process
of comparison, and partly because of the virtual impossibility of
devising a single, comprehensive and standard technique that can
be applied to all comparative studies and research. The technique
employed must, for instance, necessarily vary to a considerable
extent according to the degree of disparity or similarity in the socio-
cultural foundations of the legal orders being compared. Thus the
technique which is well suited for what may be called intra-cultural
comparison, i.e., the comparison of legal systems rooted in similar
cultural traditions and operating in similar socio-economic con-
ditions (for example, English law and French law or, closer still,
English law and Australian law) would be inappropriate for cross-
cultural comparison, i.e., comparison of legal systems with totally
different cultural and socio-economic backgrounds, for example,
English or French law on the one hand, and an African system of
customary law on the other. An important result of this is that a
comparative lawyer must, to a considerable degree rely upon his
individual judgment in deciding how to go about the comparison.
The position is exacerbated by the fact that many comparative
lawyers do not themselves apply in practice what they recommend
in theory as the appropriate technique. However, it is important
to recognise that it is not possible, nor would it be prudent to
attempt to prescribe specific comparative procedures to be followed.
The most that one can do is to suggest some broad pointers towards
a meaningful technique or techniques.
It was stated earlier that systematic comparison entails not merely
the ascertainment of divergencies and resemblances between the
legal systems or parts of the legal systems compared, but also the
explanation of such divergences and resemblances. There are, thus,
three main operations or stages involved in comparative law. The
first may be called the descriptive phase. This may take the form
of a description of the norms, concepts and institutions of the systems
concerned or it may consist in the examination of the socio-economic
problems and the legal solutions provided by the systems in question.
The second stage may, for convenience, be described as the identifica-

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512 International and Comparative Law Quarterly [VOL. 23

tion phase and is concerned with the identification or discernment

of differences and similarities between the systems under compara-
tive consideration. The third stage is the explanatory phase under
which the divergencies and resemblances are accounted for.
These phases are not always distinctly separated from each other
nor are they always dealt with in a particular order. They may all
be intermingled in the same discussion. But all three are essential
for any legal study which claims to be comparative law. Conse-
quently, as pointed out earlier, the description of two or more legal
orders or parts of such legal orders without an effort to relate them
to each other would not be comparative law. This includes the
essentially tabular type of description under which the author may
collect or catalogue the norms or institutions of two or more systems
of law and merely juxtapose them leaving it to the reader to do what
he likes with the material provided. Under this would come
Gutteridge's "Descriptive Comparative Law" whose aim, as he
states, is that of furnishing information.52 Such studies should not be
regarded as comparative law because the identification and explana-
tory phases are omitted completely. Similarly comparison which stops
at the second phase, that of pointing out differences and similarities,
would be incomplete, because it misses out the third and important
phase. The ultimate test in evaluating the technique or techniques
employed is: Does the technique of comparison employed
adequately or effectively fulfil the object or objects which the com-
paratist has decided on? Does it, for example, promote the better
understanding of one's own law, the formulation of reliable theories
of law, the promotion of law reform or unification? Can the results
obtained be safely depended on as accurate?
If the answer to any of these questions is in the negative, this
would be an indication that the technique is inadequate and
unsystematic. The position is otherwise, if the replies are affirmative.
The proper execution of the three phases of comparison is greatly
influenced by three main factors: the first may, for convenience,
be called the comparatist's Jurisprudential Outlook; the second is
the Social Context of the legal systems under comparison; and the
third is the Legal Context of the legal topics under study in the
case of micro-comparison.

Jurisprudential Outlook
This is the comparatist's general attitude to law. "An individual's
jurisprudential outlook," remarks Schlesinger, "is bound to have

52 Gutteridge, op. cit., p. 8.

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JULY 1974] Comparative Law 513

a strong influence on the direction and intensity of his interest in

Comparative law." 53 For instance an adherent of the sociologically
or historically oriented view of law will naturally be more favourably
disposed towards a sociological or historical approach in com-
parative law. Concentration on textual material may reflect yet
another jurisprudential orientation. Comparatists seldom articulate
their jurisprudential perspective; this is often implied and has to
be gathered from the particular comparative legal study or research
and sometimes from the comparatist's other writings.
It should be added that one's practical legal experience is an
important contributory to one's general attitude to law. Contact
with or living under two or more legal systems may serve to empha-
sise to one that you cannot understand the law unless you
penetrate the "social forces and changes that promote or stunt
the growth of the law." 54 Practising in two or more systems of
law which are at different stages of development renders one more
receptive to a concept of law which is much wider than that which
almost exclusively associates law with specialised machinery for
law-creation, interpretation and application, and enforcement.

Social Context

One's jurisprudential outlook aside it is a fact that a legal system is

an integral part of a society and is closely connected with all the
elements of that society's social life. The law both profoundly
affects and is affected by the socio-cultural conditions that surround
it. Although it may be difficult to determine the precise correlation
between the law and its socio-economic environment, there is no
doubt that there is a significant relation between legal development
and socio-economic changes. Diverse socio-economic and cultural
conditions produce, in varying degrees, differences in legal systems.
Consequently, for an understanding and accurate description of legal
systems or their aspects, for the accurate identification of differences
and similarities between them, and for the explanation of such
differences and similarities, i.e. for the carrying out of all the three
phases of comparison-the legal systems under comparative study
must be viewed in the socio-cultural context in which they thrive.
Comparison which concentrates on the textual or formal rules of
law-statutes, decided cases, codes-to the exclusion of the socio-
economic context is likely to give an incomplete and distorted picture
of the systems compared. Formal rules do not tell the whole story;

53 Schlesinger, Comparative Law, p. 29.

54 Kahn-Freund, op. cit., p. 43.

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514 International and Comparative Law Quarterly [VOL. 23

they represent a fraction only of the law. As McDougal points out

in his criticism of comparative studies which focus on formal rules:
"Comparison cannot relevantly and usefully be confined to rules
alone . . . because rules are not the only variables that affect
decision...." 5'5 It is the textual type of comparative study that has
been critically characterised by some comparatists as the "glib,
overtly general and painfully superficial treatment which has so
often passed current as comparative law56 "the barren dissection
of verbal texts." 57

Most contemporary legal comparatists avow the importance of

the social context. In praise of Montesquieu's contribution to
comparative law, Gutteridge wrote:
Montesquieu, in particular, has a claim to be considered as the founder
of comparative law since it was he who first realised that a rule of law
should not be treated as an abstraction, but must be regarded against a
background of its history and of the environment in which it is called upon
to function.58

Gutteridge himself states: " The laws must be examined in the

light of their political, social or economic purpose, and regard must
be paid to their dynamic rather than to their static or doctrinal
aspects." 59 More recently Kahn-Freund is to the same effect:
The comparative lawyer's investigation cannot stop at what in his own
or in any other legal order happen to be the frontiers of the law. To com-
pare law and non-law, or, if you like, positive law and positive morality
in the Austinian sense may be one of his principal tasks. If he fails to do
so he may see the law in a distorting mirror.60

The views just cited have been endorsed and emphasised by many
other comparatists. The statements suggest that the social context
which should be taken into account is the whole, and not merely
segments of the socio-cultural environment in which the systems
operate. In the words of F. F. Stone:
We must study the history, the politics, the economics, the cultural back-
ground in literature and the arts, the religions, beliefs and practices, the
philosophies, if we are to reach sound conclusions as to what is and what
it not common.61

In other words the good if not the " perfect " comparatist is one who is
fully conversant with the socio-cultural totality of the legal systems he

55 Myres S. McDougal, op. cit., p. 30.

56 Von Mehren, Book Review (1952) 65 Harv.L.Rev. 532, 534.
57 Wigmore, " More Jottings on Comparative Legal Ideas and Legal Institutions"
(1931) 6 Tulane L.R. 244, 263.
58 Gutteridge, op. cit., p. 12.
59 Ibid.,p. 174.
60 Kahn-Freund, op. cit., p. 43.
61 F. F. Stone, "The end to be Served by Comparative Law" (1951) 25 Tulane
L.Rev. 325.

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JULY 1974] Comparative Law 515

examines comparatively. Clearly the standard of scholarship

demanded of comparative lawyers is extremely high-well-nigh
impossible to attain. It is hard enough to gain mastery of the socio-
economic environment of one's own legal system, much less that
of two or more systems. However, as Wagner points out, "the
realities of life and the limitations of legal scholars engaging in
comparative research must make it clear to us that the ideal and
the real are far apart." 62 In another passage he states:
If perfection is the only thing which counts the conclusion could be
reached that there is hardly any hope to achieve this goal; that it is
appropriate not to make any comparative research unless all the stringent
pre-requisites are complied with.63

Although comparative legal scholarship demands a vast amount

of knowledge of the socio-economic and cultural conditions relating
to the systems under comparative study, in practice the extent of
the social context that is articulated is largely influenced, firstly, by
whether the comparison is intra- or cross-cultural, and secondly,
by the main purpose of the comparison.

(i) Intra- and Cross-cultural Comparison

Studies by sociologists, anthropologists, historians and some legal
scholars provide some useful and meaningful classifications of types
of society whose characteristic features they describe and to which
different systems of law may be related-the western industrial
capitalist societies of Eastern Europe, the pre-industrial or tradi-
tional societies of Africa and Asia. Systems of law within the same
general socio-cultural type tend to show less fundamental differences
than those in different and contrasting socio-cultural types. The
comparative study of systems of law within the same societal type-
e.g., western systems-would constitute intra-cultural comparison.
In such a case the social context articulated need not include the
basic elements of social organisation of western societies-it need
not be detailed and comprehensive. It would be sufficient-and
this is in fact what happens in practice-for the comparative lawyer
to discuss the socio-economic variables which are of immediate rele-
vance and application to his descriptive, indentification and
explanatory phases. The closer the socio-cultural context the less
detail of the general social context is required, for instance, less
detail of social context is necessary in the comparative study of
English and Australian law, than in the comparative study of
English and French or German law. Social context in intra-cultural

62 Wagner, op. cit., p. 531.

63 Ibid., p. 530.

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516 International and Comparative Law Quarterly [VOL. 23

comparative studies may therefore be interpreted to mean the

immediately relevant aspects of the social and economic environment.
In the study of English and French law one of the immediately rele-
vant social variables is the historical development of the two
systems and this accounts for many of the differences in the
structure, concepts, and other features of the two systems.
As comparative studies move further away from the cultural
common denominators, the more detailed background information
must be given regarding socio-economic factors. In cross-cultural
comparative studies, i.e., comparative studies of legal systems that
belong to distinct societies, for example English law and Luo
customary law, a detailed discussion of the social structure and
organisation is essential if the comparative study is to be meaningful.
One of the main distinguishing features between Western industrial
societies and pre-industrial or traditional societies is that in the
former there is a high degree of social differentation and the legal
institutions are substantially separable from other social phenomena.
It is therefore, possible to make some sense out of comparative
studies which exclude the social context to a considerable degree,
whereas traditional societies exhibit a low degree of social differentia-
tion and the law is embedded in, and inseparable from, what people
actually do; it is part of the usages and customs of the people. A com-
parative study of English law and Luo customary law which does
not furnish detailed social context would be highly distorted and
misleading. This applies generally to any other cross-cultural study,
e.g., the study of American [U.S.] and Soviet law.

(ii) Purposes of Comparison and Social context

It seems clear that where the comparatist is seeking to determine
the relation between the law and society a great deal of the general
social context must be provided, whereas a comparatist seeking to
use comparative law for the reform of company law may be content
with socio-economic information which is immediately pertinent
to company law.

Legal Context in Micro-comparison

In addition to the jurisprudential outlook and the social context,
the third factor which affects the process of comparison is the legal
context. Where one is engaged in micro-comparison the topic under
comparative study must be placed in the context of the entire legal
system. In the words of Schmitthoff:
The quality of a legal institution may differ according to the structure
of the legal system of which it forms part. The same institution may

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JULY 1974] Comparative Law 517

hold a key position in the legal system of one country and may be of
subordinate character in another system where the corresponding needs
are satisfied by other legal institutions.64

The Process of Comparison and Comparability

One of the main problems relating to the technique of comparison
is that of expressing legal systems, their institutions and concepts in
comparable terms and categories-an aspect of this has been dis-
cussed briefly under subject-matter regarding comparable topics. An
examination of the formal or textual legal norms, institutions and
concepts in one system may not disclose corresponding categories
in another system. This is particularly so where systems are rooted in
completely different social types. Seemingly identical terms in two
or more systems of law may in fact have different meanings: or
seemingly different terms may have the same meaning. The fact
that the classification and names of legal rules and institutions is
far from conclusive in determining equivalence has led to increasing
emphasis on the functional and problem-solving approaches in
comparative law.
The essence of the functional approach is: what legal norms,
concepts or institutions in one system perform the equivalent func-
tions performed by certain legal norms, concepts or institutions of
another system? The comparatist seeks the institutions that fulfil
the same role. This approach is indispensable in cross-cultural com-
parison where the determination of comparability is enormously
difficult. The approach does not render superfluous any of the other
approaches which are generally used-the analytical and historical.
In fact the multi-approach in comparative law is highly desirable
and likely to yield better results.
Comparative lawyers are also increasingly relying on the problem-
solving approach which takes a specific problem or specific
problems-be they social, economic, legal or a mixture of these-
and see how these problems are solved in the various legal systems
and why they are solved in a particular way. The pertinent questions
are: what is the social, economic or legal problem? What is the
legal solution or control of such problem in the legal systems
selected for comparison?
It seems plain from what has been said that systematic compari-
son consists of a combination of a number of techniques or
approaches which leave considerable room for individual judgment.
What is indicated here are some of the important general and mini-
mum aspects which can, and should continually be examined and

64 Schmitthoff, op. cit., pp. 97-98.

23 I.C.L.Q.-2

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518 International and Comparative Law Quarterly [VOL. 23

refined in the light of particular comparative legal studies and

research and developments in other social science disciplines.

CONCLUSION

An attempt has been made to provide a theoretical fram

This framework, together with the classification of legal s
constitute what Professor Graveson has called "the indispen
generalities of Comparative Law." A theoretical framewo
necessary guide to action and impinges upon, and constitut
foundation of, all specific comparative legal studies and res
It is this framework which gives unity to what appear to be
particular projects of comparative law. It is this theoretical
around which a common tradition can derive-around which a
stock of knowledge capable of transmission and refinement ca
accumulate. What distinguishes a comparative lawyer from an
ordinary lawyer is that the former has had a good grounding in
comparative theory which the latter has not.
Such a theoretical framework can be learned and taught. In
fact this is what is meant by " teaching comparative law" and this
is what justifies the inclusion of a basic comparative law course in
law studies curricula. There are two main viewpoints which have
been espoused by comparatists in the teaching of comparative law-
views which, unfortunately, have sometimes been presented as if they
are in opposition to each other. The one is (a) the Comparative
teaching of law, i.e., that the majority of law courses should be
taught comparatively; the other is (b) the teaching of comparative
law, i.e., the providing of a basic course in comparative law.

(a) Comparative Teaching of Law

There is a substantial body of opinion among law teachers and com-
parative lawyers that the majority or main courses in law should be
taught comparatively and that if this was done it would be unneces-
sary to provide a basic course in comparative law. It seems clear
from what has been discussed in this article that for this to be done
in a proper and meaningful way, the students must at least have been
exposed to the general theory of comparative law and to the classifica-
tion and general characteristics of legal systems. Schlesinger points
out: "Even where the foreign materials are in fact discussed in a
bread-and-butter course, they may mislead rather than enlighten a
student who has never had the benefit of a basic introduction to
Comparative Law." 65 As things are at present most students are
65 Schlesinger, "The Role of the 'Basic Course' in the teaching of foreign and
Comparative Law" (1971) 19 Amr.J.Comp.L. 616, 617.

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JULY 1974] Comparative Law 519

never exposed to comparative law theory. A basic course in com-

parative law-either eo nomine or as part of another course such
as jurisprudence-would be necessary to remedy this deficiency.
Although it may be sufficient for the students to be exposed to
the theoretical aspects of comparative law, it is of vital importance
that the teacher be well-grounded in such aspects if his teaching is
to be effective and beneficial. One of the main obstacles to the
teaching of law courses comparatively is that most law teachers have
not had the necessary training in comparative law and this is likely
to remain the case for quite a long time to come. Even in faculties
where there are a number of comparative lawyers limitations of
time make it very difficult to teach more than a few courses com-
paratively. A basic course would thus also be necessary to provide
the future law teacher with the basic equipment which will enable
him to pursue comparative studies at much greater depth later.

(b) Teaching Comparative Law-Basic Course

It is suggested that a basic course in comparative law comprises two
main parts:
(i) A general introduction to comparative law which serves to
furnish the students with the theoretical framework plus
the classification and characteristics of legal systems.
(ii) A specific comparative study which may be macro-
comparison or micro-comparison. This would provide the
opportunity of applying the learnt theory to a particular
study. It would at the same time serve the academic
functions discussed earlier.

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