Introducing Comparative Law

Abstract

The term comparative law does not denote a specific branch of positive law, or a body of rules governing a particular field of social activity. When we speak, for instance, of the comparative law of marriage, we do not refer to a set of rules regulating relations between husband and wife; we merely refer to the fact that the marriage laws of two or more countries have been subjected to a process of comparison with a view to ascertaining their differences and similarities. The term ‘comparative law’ denotes, therefore, a form of study and research whose object is the comparison of legal systems with a view to obtaining knowledge that may be used for a variety of theoretical and practical purposes. In the words of Zweigert and Kotz, comparative law is “an intellectual activity with law as its object and comparison as its process.” Comparative law embraces: the comparing of legal systems with the purpose of detecting their differences and similarities; working with the differences and similarities that have been detected (for instance explaining their origins, evaluating the solutions utilized in different legal systems, grouping legal systems into families of law or searching for the common core of the systems under comparison); and the treatment of the methodological problems that arise in connection with these tasks, including methodological problems connected to the study of foreign law. As the above definitions suggest, the scope of comparative law is extremely broad and its subject-matter can never be treated in an exhaustive manner, for one can hardly imagine all the possible purposes and dimensions of legal comparison.