Is Comparative Law a Distinct Discipline?

Abstract

Jurists studying their domestic law ask what it is or should be. Comparative lawyers compare the law of different legal systems. Are these really distinct enterprises? Many domestic lawyers think so because they assume that their own cases, statutes and treatises are the only authorities relevant to the question of what their own law is. Italian cases or French statutes or German treatises could only be relevant to Italian or French or German law. They do not think this conclusion requires argument. They take it as obviously true. Comparative lawyers often react in the same way, in part because of their own experience. When they study how the law of different countries deals with a particular problem, they usually find that the decided cases involve different facts, and that the law is stated differently in statutes and treatises. They promptly assume that the law of France deals with the problem differently than the law of Germany. Here I will argue that the law of different legal systems may be much the same even if the decided cases and the authoritative statements made in statutes and treatises look different. To decide whether it is the same requires a careful analysis which should be made in the same way by a comparative and a domestic lawyer. To the extent that the law turns out to be the same, then it should be analyzed in the same way by both the comparative and the domestic lawyer. Their methods begin to diverge only when the law they are studying is genuinely different, and even then, their methods are interdependent. Neither can neglect the other's conclusions. Let us consider, successively, the states in which a comparative or a domestic lawyer might find the law of a particular jurisdiction. One possible state is that of extreme confusion: there might be a mass of case law and no idea what rules the courts are following or what principles of justice or policy are guiding them. Even to describe the existing state of the law, neither the domestic nor the comparative lawyer can simply catalog the decided cases. Case law is law only to the extent it indicates or affects the way new cases will be decided. Merely to describe the law, the comparative and the domestic lawyer