1

A NEW INTRODUCTION TO COMPARATIVE LAW

This thought-provoking introduction to the study of comparative law
provides in-depth analyses of all major comparative methodologies and
theories, and serves as a common sense guide to the study of foreign
legal systems. It is written in a lively and accessible style and will prove
indispensable reading to advanced students of the subject. It also
contains much that will be of interest to comparative law scholars,
offering novel insights into commonplace methodological and theoretical
questions, and making a significant contribution to the field.

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It is difficult to understand the universe if you only
study one planet.

Miyamoto Musashi, A Book of Five Rings ( , 1645)

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Table of Contents

Acknowledgements

1. Introduction
I. About this Book
II. Legal Culture in Focus
III. Structure of the Book

2. Comparative Law as a Discipline—A Short History

I. History of Comparative Law in a Nutshell
A. Birth of Modern Comparative Law
II. Comparative Law in the Twenty-first Century
A. Legal Systematics and Comparison: Private Law v Public
Law

3. Comparative Law—Definitions and Distinctions

I. Challenge of Further Definition
A. Crossing the Borders
II. Comparative Study of Law
A. Universalism?
B. Research Results and their Use
C. Restrictions on Use
III. The Theory of Comparative Law
A. Macro-comparison
B. Theory and Methodology
C. Special Features

4. Comparative Law—One of the Legal Disciplines

I. Part of a Larger Field of Knowledge
II. A Member of the Family of Legal Studies
A. Comparative Law and the Normative Approach
B. Comparative Law and the Roots of Law

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C. Comparative Law and Sociological Dimensions of Law
D. Theoretical and Philosophical Dimensions of Comparative
Law
E. Linguistic and Economic Dimensions—Comparative Law
Reloaded
III. Comparison and Fields of Law
A. Private International Law
B. Public International Law
IV. Difficulty of Demarcation

5. Why Compare?
I. Starting Points—Creating Added Value
II. Comparison as a Cross-border Form of Knowledge Acquisition
A. About Proportions
B. Different Needs
III. Comparison as Thinking Outside the Box
A. Away from Ethnocentrism
IV. Basic Knowledge-interests
V. Integrativity and Contradictivity
A. The Historical Dimension
B. Recent Integration in Europe
C. New or Old Ius Commune?
D. The International Dimension and Knowledge-interest of
Comparison
E. Other Dimensions
VI. Practical v Theoretical Approach
A. Practicality
B. Theoreticalness
VII. Pedagogical—Comparison in Teaching and Learning Law

6. Basic Strategies in Comparison

I. Introduction
A. Method—Methodology
B. Methodological Choices of a Technical Nature
II. Scope—From Macro to Micro
A. Comparison—Macro and Micro
B. New or Old—Micro or Macro
III. In Time and Space—The Time Dimension
A. Transplants and Loans
IV. Quantity

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V. The Diversity of Legal Systems—Transnationality
A. Transnational Law
VI. Cultural Dimensions and their Overlapping
A. Too Many Sources?
VII. Methodological Choices of Theoretical Nature
VIII. Functionality—Functional Comparative Law
A. The Same Idea as a Starting Point
B. Getting Rid of System-specific Labels
C. Problems and Transformation of the Functional Approach
D. Translating Legal Language and Functional Comparison
IX. Structural Dimension
A. Structural Elements
B. Structural Comparability
C. Dynamic Approach
X. Systematic Approach
XI. Critical Study Approaches—Two Examples
A. Deep Level Comparison and Mentality
B. Postcolonial Methodology—Orientalism
XII. Depth of the Study—Decisiveness of the Knowledge-interest
XIII. Research Ethics
A. Honesty in Research
XIV. Comparative Methodology—Heuristics?

7. Comparing—Differences and Similarities

I. Need for a Yardstick for Comparison—Tertium Comparationis
A. Tertium and the Preference for Functional Comparison?
II. Differences and Similarities
III. Culture and Explanation
A. Mentality
IV. Economic Factors
V. Historical Factors
A. Colonialism
B. Understanding Institutions and their Adoption
C. The Presence of the Past
VI. Geography and Climate
A. Neighbourhood
VII. Other Factors
VIII. Differences between Explanatory Factors
IX. The Presumption of Similarity?
A. Diffusion and Similarity

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8. Comparison—Obstacles and Difficulties
I. Comparative Research—Between the Familiar and the Foreign
II. Research Data Related Problems
III. Pitfalls in Research-material Processing and Analysis
A. The Problem of Legal Language
B. Multilingualism
C. The Significance of Context
IV. Side-step to Theory: Comparing Laws, but what Laws?
A. Validity of Law
B. Pluralism and Law
V. Legal Comparison—A Particularly Risky Business?
VI. Comparison as a Learning Process

9. Macro-comparison
I. Basic Blocks of Macro-comparison
A. Common Law
B. Continental Law aka Civil Law
C. Mixed Legal Systems
D. Religious-traditional Law
E. What about the Socialist Legal Family?
II. Constructing Macro-constructs
A. Mastering Complexity by Means of Generalisations
III. Grouping Legal Systems
A. Legal Family
B. Nordic Legal Family?
C. Legal Culture
i. Professional Law
ii. Political Law
iii. Traditional Law
D. Legal Tradition
IV. Macro-constructs and Methodology
A. Change in the Knowledge Environment
B. Concentration on Basic Matters
V. Finally

10. Legal Evolution?

I. Is there Evolution in Law?
II. Problems in Macro-comparison
A. Changing of Law
III. Limits of Legal Evolution?

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11. Groupings, Classifications, Categories
I. Technical Criteria
II. General Requirements
III. History-related Factors
IV. Nature of Legal Thinking (Legal Mentality)
A. Differences Between the Basic Codifications of Continental
Civil Law
V. Factors Related to Societal Ideology
A. Law and Development
VI. Cultural Factors
VII. Finally

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Use of Indented Paragraphs

The format of this book is intended to facilitate comprehension and make

the text more reader-friendly. To avoid excessive footnotes with
additional information or clarification, the book indents paragraphs that
are related to but not an essential part of the main text. These paragraphs
refer readers to other sources for examples, clarification and additional
information. They enrich the text, guiding readers through the more
challenging parts and enabling them to seek additional information
independently.

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1

Introduction

THIS BOOK IS an advanced introduction to comparative law as a

discipline and as a form of legal research. However, the reader should
bear in mind that there are no generally accepted theoretical frames,
established terminology or aims set in comparative law. Comparative law
is a special field of legal study that is dynamic and open to innovation
and is not cemented to any particular special research approach of legal
discipline. On the one hand, this means insecurity caused by the lack of
an established research tradition; there is no true paradigm. On the other
hand, it gives the practitioner better opportunities for free research than
is possible in a discipline that has been specifically defined.
Compared to the doctrinal study of law, comparative law allows for
much more freedom although it is worth noting that the expression
‘anything goes’ is not an apt description of comparative law. There are
degrees of freedom in comparative law, but all the same it is extremely
important to be able to identify what one compares and how and why it
is done. One should also be able to express the same to the reader in such
a form that the contents of a publication are both comprehensible and as
argumentatively persuasive as possible. This clearly exceeds mere
description of the similarities and differences between the laws of
different countries.
It is fair to note that in the literature on comparative law there are
significant differences of opinion about the field. Comparative law,
whose roots are in the tradition of German civil law, offers a very
different view from the more theoretical comparison that has its roots in
French philosophy or critical legal anthropology. Here the reader is
offered an extensive view of comparative law and its scope. Where there
are differing views this book endeavours to strike a balance. The

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solutions and examples suggested in the book should not be seen as
normative methodological rules but rather as new stimuli and helpful
heuristic insights. Even though they are just stimuli they give a clear
indication about what the field means and what the typical characteristics
are that separate it from the other members of the family of legal
disciplines.
In the most extensive way possible, comparative law can be said to be
an academic practice that studies large organised human communities
and focuses on law as a normative phenomenon. Typical of the discipline
is the use of a comparative approach where conclusions about
differences and similarities are drawn. The definition seems at first quite
clear if the reader interprets law in the way a civil law lawyer would
usually interpret it. However, when we look at many expressions in
various languages, such as English law, German Recht, French droit,
Latin ius, Finnish oikeus or Greek δíκαιο, we notice that each concept in
its own legal linguistic and legal cultural context is made up of slightly
different content. Here we immediately face the basic epistemic problem:
how to understand foreign law that is based on different legal historical
and often very subtle legal cultural nuances that result in conceptual and
other kinds of confusion. Further, these nuances are not directly revealed
from the text of statutory law or the numerous precedents, but instead
they have to be deduced from the other materials that are available. So,
by introducing the context, parallel description is transformed into
comparative research.

I. ABOUT THIS BOOK

This book is meant to be used as an advanced textbook or to a certain
extent as a kind of manual for the methodology of comparative law for
Masters and early phase PhD students. The book is not a reference book
on foreign law, nor do the examples given have any legal aims. If the
reader is interested in foreign law, it is advisable to find updated legal
literature on the system or systems in question—naturally in the original
language, if possible. The aim of the book is to acquaint the reader with
the theoretical and methodological grounds of comparative law. This
author’s epistemic and legal cultural home base is Nordic, but this book
is written in a manner which embraces readers with other kinds of
epistemic and legal-cultural backgrounds.

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This book consists of two main parts: in the first part (chapters two to
eight) general questions on the theory and methodology of comparative
law are discussed, and in the second part (chapters nine to eleven) the
grouping of legal families and cultures and the related problems are dealt
with. As there are plenty of Internet sources and much literature on the
legal systems of different countries available, this book concentrates on
legal families and their classification in the light of examples. However,
it does not aim at complete coverage or a novel taxonomy. Furthermore,
the reader should not expect country-specific figures where photo-like
presentations on the law in force in each system can adequately sum
things up. This book concentrates on the theory and methodology of
comparative law instead of the legally detailed description of foreign
law.
By and large, there are no references to sources in this book because
this is a textbook and not a research monograph. However, when there
are direct quotations, the name of the person and the work quoted are
mentioned so that the reader has an opportunity to look for additional
information at will. This is also in accordance with research ethics. The
text has been divided into the main text and indented text that supports
the main text. By reading the main text, it is possible to get a general
picture about the topic in question while the indented text contains
examples, specifications and additional explanations on topics discussed
in the main text. The indented text and the main text support one another
in such a way that the indented text enriches and complements the main
text.

II. LEGAL CULTURE IN FOCUS

This book gives the reader an updated picture of comparative law as it is
at present internationally understood. The focus is often on legal culture,
which means that the book’s orientation is different from that of many
others, and this explains why the book is named New Introduction.
Moreover, this book tries to encapsulate some of the new mentality and
spirit of comparative law as a discipline as it is today. Simply put, the
feeling of today is quite different from that of the twentieth century.
In the 2000s there has so far not been any prominent single new theme
or tone that radically differs from the comparative law of the previous
century. However, the key focus has changed. As a kind of motto for this
book the idea presented by EA Hoebel (1906–93) in his classic on legal

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anthropology The Law of Primitive Man can be mentioned: ‘law
divorced from its cultural matrix is meaningless’.1 A second motto could
be what Professor Mireille Delmas-Marty said in her inaugural lecture at
the Collège de France: ‘comparative studies means to give a preference
to a pluralistic internationalisation which does not renounce the diversity
of systems’.2
Legal culture refers to the attempt of comparatists to recognise and
accept the significance of legal contexts. Legal culture is a concept that
present-day comparatists and legal theorists increasingly refer to; it no
longer belongs solely to the vocabulary of legal anthropologists and
sociologists. The problem with it though is that no unambiguous
definition has been given.
The word culture goes back to the Latin verb colore, from which the
word cultura is derived. Both words refer to cultivation. The rather old-
fashioned phrase ‘cultivation of the mind’ is quite fitting, considering
that the meaning of the term cultural has later been extended to cover
civilisation and refinement in general. Cultura in a way offers a contrast
to words that are related to wild (unorganised) nature. It is a question of
the human being moving away from the state of nature, which classical
legal philosophers (eg Thomas Hobbes) considered the natural state.
From the point of view of comparative law, the most important
dimension of culture is legal culture because comparative law studies
different legal cultures. However, in practice using the viewpoint of legal
culture is difficult and there are certain problems involved although
almost all comparatists support the basic idea.
In this book legal culture refers to what legal comparatists usually
refer to when they use the concept: it is a question of factors that are
outside the formal legal system but are still closely related to the
operation of the legal system. Law is put into context. It is a question of
established attitudes of a permanent nature to law adopted by jurists in
particular (internal legal culture) and more extensively by human society
(external legal culture). Legal culture refers to the special system-
specific way in which values and practices and legal concepts are
integrated in the actual operation of the legal system. Law is no longer
considered autonomous but intimately connected to its human
environment.

Like this book, Mathias Siems’ new textbook pays attention to the context of law.3
Siems places weight on social, political and economic contexts of law from a
comparative perspective. However, whereas he focuses on socio-legal and numerical

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approaches, this book underlines hermeneutical, historical and anthropological
dimensions. In addition, Siems’ book may also be characterised as a ‘New
Introduction to Comparative Law’ as to its nature. However, the book at hand has a
distinct legal cultural and a historical and linguistic emphasis. Another new book,
Geoffrey Samuel’s introduction to theory and method of comparative law, is
designed for postgraduate students. It has a distinct approach which is largely built
on certain ideas of the French epistemology of social sciences.4

The significance of legal culture is depicted in the fact that almost

identical regulations or extensive receptions of law produce completely
different end-results at the level of legal reality. Reception in its legal
meaning refers to the adoption of a system of law that has been created
in another state or in a different historical era. It is a question of legally
relevant prevailing attitudes according to which law and legal actors are
in mutual interaction—void of the superior status of positive law. It is, it
would seem, impossible to measure legal culture with scientific accuracy
even though its significance is understood.
So, legal culture refers to the contextual factors that produce a
different end-result for example in Switzerland and Turkey although the
codifications of their civil laws are extremely alike. Legal culture
explains also why in the Netherlands there are so few civil trials
compared to Germany where the formal legal system is very similar.
North European legal culture is usually considered pragmatic when
compared to its cousins in Continental Europe that are generally
considered formalists. Explanation for the differences is searched for in
history, social factors, attitudes to law, legal training and anything else
that formal law is incapable of explaining. Legal culture is in most cases,
when it comes to the comparative study of law, related to the fact that the
comparatist tries to understand law more profoundly than by simply
looking at the surface level of written law.

III. STRUCTURE OF THE BOOK

In addition to this introduction (chapter one), this book consists of 10
other chapters. In chapter two, the history of comparative law as a
discipline is explained in a nutshell. Chapter three contains basic
definitions and distinctions concerning the field and the discipline of the
comparative study of law. In chapter four, comparative law is placed in
the larger field of knowledge ie legal disciplines as a whole. Chapter five
tries to offer an answer to the question of why a lawyer should study law

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comparatively, and what the basic interests of knowledge are in
comparative law. Chapter six presents and analyses various basic
comparative research strategies and crucial methodological choices
which a comparatist must perform. Chapters seven and eight concentrate
on comparative methodology by presenting possibilities which can be
utilised when explaining differences and similarities and what difficulties
comparatists normally encounter in their research. Chapters nine to
eleven deal with macro-comparative law, evolution of legal cultures and
how macro-comparatists classify legal systems into different theoretical
macro-constructs. As all the chapters contain their own conclusions, and
for didactic purposes there is also some element of repetition, there is no
need for a separate conclusion.

1 EA Hoebel, The Law of Primitive Man: A Study in Comparative Legal Dynamics

(Cambridge MA, Harvard University Press, 1954) 39.
2 ‘les études comparatives, c’est exprimer une préférence pour une
internationalisation pluraliste qui ne renonce pas à la diversité des systè mes’, ‘Études
juridiques comparatives et internationalisation du droit’, leçon inaugurale faite le jeudi
20 mars au Collège de France [Link]
3 See M Siems, Comparative Law (Cambridge, Cambridge University Press, 2014).
4 G Samuel, An Introduction to Comparative Law Theory and Method (Oxford, Hart
Publishing, 2014).

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2

Comparative Law as a Discipline—A

Short History

I. HISTORY OF COMPARATIVE LAW IN A

NUTSHELL
THE HISTORY OF comparative law is not an autonomous history of an
independent scholarly field of law as a discipline but part of the general
history of legal ideas. The origins of scientific comparative study are in
the research of societies and people deep in the Western tradition of
science. The historic roots of comparative study are connected to public
law, although in the twentieth century research on comparative law was
mainly concerned with private law. Nevertheless, the deep doctrinal
roots of comparative law have never been solely in private law. In this
respect comparative law did not even in Continental Europe covering
public law but took place exclusively within the ius commune tradition
and was solely dominated by private law. Besides, if examined from
modern systematics’ point of view, in the modern sense ius commune
included criminal law and procedural law as well as private law.
During the period of Alexander the Great, the foundations for
comparative legal and comparative political study were laid when in the
school for philosophers, ie Lykeion (Λύκειον) of Aristotle (384–322BC),
the constitutions of 158 Greek city states were collected as the material
for theoretical and practical comparative study on constitutions. The
results of Aristotle’s work have been preserved for future generations in
the classical work Πολιτικά (Politics), where such topics as nationality,
form of government, legal status of civil servants and the issue of the

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number and nature of laws required are discussed. These issues are still
relevant.
A comparative legal work also known by the name Lex Dei, the whole
name of which is Lex Dei quam praecepit Dominus ad Moysen, or
‘God’s Law (which the Lord Ordered) for Moses’, has been known about
from Late Antiquity. The work is also known by the name Collatio
legum mosaicarum et romanarum or ‘Comparison of the Law of Moses
and the Roman Law’. The exact time when the work was written is not
known, but the basic text is assumed to have been compiled in the early-
fourth century. Only parts of the work have been preserved, but from
these it is possible to conclude that it is a work that compares Roman law
and Jewish law that has been translated from Hebrew: first Moses’ law is
inspected, and then the same legal problem is discussed in the light of
classical texts written by Roman lawyers. From the point of view of legal
history and comparative law, the work is revealing because it contains
quotations from Roman lawyers, and simultaneously it describes the
author’s interest in historical comparative law.
From a more recent period Charles de Secondat, Baron de
Montesquieu (1689–1755), and particularly his work (on) The Spirit of
the Laws (De l’Esprit des Lois, 1748), is worth mentioning. Montesquieu
was interested in the historical development of law and the comparison
of different legal institutions by means of which he hoped to be able to
make propositions for the improvement of legislation. The work is a
classic of both comparative law and the sociology of law, and some of its
ideas are still interesting from the point of view of macro-comparison
(more on this later).
From the nineteenth century onwards the field began to settle into its
present channels. Sir Henry Maine (1822–88), the first holder of the
Chair of comparative law that was founded in Oxford in 1869, published
a classic in comparative law and legal history called Ancient Law.1 In
this book he drafted his legal-sociological explanation for the difference
between Roman law and modern law. According to him, individuals in
the ancient world were bound to the traditions of their own social groups,
while modern law was characterised by the autonomy of individuals.
Maine was a kind of evolutionist who believed—as many legal
comparatists still do—in the idea that legal cultures continue to develop
from simpler to more complicated.
One of the very few historical presentations on comparative
administrative law is Comparative Administrative Law in two volumes
by Frank J Goodnow (1859–1939).2 In this he studied France and

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Germany as well as England and the USA. Goodnow’s starting point was
his view according to which in modern States questions concerning
constitutional law were being neglected, while topics concerning
administrative law had risen to the foreground. The prediction has not
proved quite accurate.
For both Aristotle and Montesquieu one of the central aims was to
create new knowledge from the comparative standpoint in order to
improve the political structure of society. In the same way Goodnow
intended, by means of administrative comparison, to create knowledge
that legislators would be able to use in the development of the
administrative system of the future. Maine on the other hand wanted to
present a new (more raw than before, or one that differed distinctly from
‘civilised nations’) picture of Roman law, because in his opinion Roman
law had not been correctly understood.
The examples demonstrate the unavoidable connection of comparative
law to its own period and the prevailing knowledge-interests. In the same
way, for example, that a doctoral student at a Scandinavian university
who is writing a dissertation on the doctrinal study of law resorts to
comparative law for different purposes than someone who is writing a
dissertation on the same topic but more distinctively from a comparative
law perspective. Along similar lines, the senior referendary of the court
of appeals who is drafting a practical comparative report on the
background to support the knowledge basis of their proposal for a
decision makes use of comparative law. Still, the referendary’s
comparison differs from how the senior legal advisor in the Ministry of
Justice drafts the government bill, based on practical comparison of
foreign laws, for a new legal institution to be created by means of a
legislative measure. Similarly, the critical comparatists who heavily
criticise the harmonisation of European civil law draw their inspiration
and methods from totally different directions to those who devotedly
work in the interest of legal integration. Briefly: the aims and needs
behind comparison determine to a great extent the type of comparison
that will be performed. Moreover, legal policy or just plain policy
explains more frequently and efficiently than legal theory the need for
comparison and the method selected.

A. Birth of Modern Comparative Law

The historical background of comparative law is usually considered to be

caused by two motives of a different nature. On the one hand, we talk

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about legislative comparative law, which refers to those connections and
cases of comparison when foreign law is studied from the point of view
of the development and application problems of national legislation.
Modern comparative endeavour that aims at harmonisation continues this
tradition. The situation of scholarly comparative law was weaker for a
long time, and its position lacked recognition. Some writers have been of
the opinion that the first actual work on modern comparative law is the
above-mentioned Ancient Law by Maine.
Both traditions of comparative law are still alive, as will be shown
later by the division into practical and theoretical comparison. The
starting point of modern comparative law is easier to recognise, because
it is invariably dated to the congress on international comparative law
(organised by Société de législation comparée) held in Paris in 1900.
There, the first serious writings that aimed at being systematic and that
tried to outline the concept, field and tasks of comparative law were
presented.
In the twenty-first century the inheritance of the Paris conference has
faced sharp criticism and rejection. The critique has been offered by
comparatists with a critical attitude to the legal positivism of the Paris
inheritance, which they would like to abandon. But, in reality the Paris
inheritance is versatile and in no way monolithic. The idea of the
universal nature of law and the optimistic fantasy of the unification of
law throughout the world undeniably dates back to Paris: comparatists
wanted to look for a common legislative ground for all so-called
civilised States (droit commun législatif) of that time. Characteristic of
the period was that all members of the Paris congress were European and
many were colonial powers.
A general view of the critique and its central ideas is presented in Comparative Legal
Studies edited by Pierre Legrand and Roderick Munday.3 The work is based on the
conference that was held in Cambridge in 2000, ie exactly 100 years after Paris.
However, in Cambridge the conscious aim was to be detached from the mainstream
of comparative law, ie the Paris legacy.

Apart from being a rough outline the presentation above on the paradigm
of comparative law is also very European. In the United States,
comparative law did not start to thrive until after the Second World War,
and was to a large extent promoted by the flight of a number of
prestigious legal scholars. These scholars (so-called emigrant paradigm)
were eventually settled in American universities to teach jurisprudence
and brought with them their extensive knowledge (their own old law and

19
the new one learned in the USA) of comparative law as well as their
versatile knowledge of languages. On this existing emigrant base, owing
to the possibilities provided by financial and cultural change through
globalisation, a foundation was laid for academic American comparative
law in the 1990s and that of today.
Undoubtedly, without European emigrants, there would have been
much less comparative law in North America, and it would be
intellectually poorer. The flow of learned lawyers from Europe to the
United States and Canada has not completely died, but this is due to the
competiveness of American universities.

II. COMPARATIVE LAW IN THE TWENTY-FIRST

CENTURY
Some comparatists have named the twenty-first century as the century of
new arrival for comparative law. Their opinion is not unjustified even
though their view strikes as being a highly romanticised one. In recent
years the profile of comparative law as an approach to law has increased.
It has become fashionable in academic circles, and writing on its theory
and methodology has increased throughout the whole of the twenty-first
century so far. All the same, comparative law is not only the concern of
academic research. While comparison is a segment of legal research and
teaching, it more and more frequently is an informative tool for the
drafting and application of law. Legal scholars too have, more daringly
than before, started to use the material from other legal systems as part of
their own argumentation.
On the other hand, discussion within comparative law has shown that
the discipline has lost some of its old methodological and theoretical
innocence. It has been challenged by history, sociology, economics and
anthropology. This has resulted in disruption of the earlier theoretical
consensus while the challenge has turned comparative law into a viable
and intellectually challenging activity. At the same time, much of
comparative law’s bookish outlook has worn off.
In the twentieth century law still seemed simple. The mobility of rules,
doctrines and institutions seemed slight and the borderlines between
legal cultures clear. National systems were self-imposedly mesmerised
by the fiction of legal conformity and sovereignty. As attitudes changed
at the end of the nineteenth century and the beginning of the twenty-first
century, it is justifiable to say that comparative law has in many ways

20
undergone a renaissance. There are several reasons for the higher profile.
The most important background factors are the development of
internationalisation, the intensification of European integration in
particular and the disruption of legal positivism connected to national
law. Notwithstanding, the growing impact of comparison has remained at
least in part largely at the level of academic discourse.
The growing significance of comparative law is seemingly conceded
on Festschrift occasions and when the internationality of legal study is
emphasised. Festschrift academic speeches and ‘comparisons’ mentioned
in passing in texts written by researchers who are European law-oriented
as well as other external attempts to emphasise comparison only convey
a partial truth. There is more talk about than actual practice of
comparative law. Europe is no exception in this respect: there is
discussion and articles on the importance of comparative law, but so far
ambitious comparative studies are exceptions. One cannot help thinking
that there is ‘much ado about nothing’ when it comes to comparative
law: it is fashionable to be comparatist but much less fashionable to
actually do comparative legal research. Of course there are exceptions to
this rule as the Netherlands seems to prove: PhD theses with strong
comparative law dimension are held in rather high esteem.
For instance in the Nordic countries, compared to Europe in general,
the focus on comparative law has remained slight if measured by the
volume of research. Nor are there more than a few teaching and research
positions in comparative law at universities. And the existing positions
have been connected with private international law so that comparative
law as a genuinely independent discipline does not really exist. The share
of comparison in the teaching of legal study subjects has also remained
modest, and as a study subject it has been overshadowed by private
international law. Further, academic conventions are lagging behind in
development. The structural distortion is balanced by the fact that
doctrinal research that makes use of the comparative approach has
increased in different fields of law.
As a research method, comparative law is still in fact not held in high
esteem in the sphere of legal study although there is a broad consensus
on its need and usefulness. Yet, empty vessels make the most noise. In
this respect the status of comparative law resembles that of legal history
and sociology, which likewise are remembered on Festschrift occasions
and at various congresses and seminars but hardly ever when faculty
structures are planned or resources allocated.

21
The first chairs in comparative law were established in France as early as 1832
(législation comparée/Collège de France) and in Great Britain 1869 (Historical and
Comparative Jurisprudence /Oxford). Along with European integration and
globalisation, the position of comparative law has in some countries continued to
grow, and it has remained strong in countries such as Italy where there are a great
number of professors within comparative law and where the discipline has a strong
status in teaching law at the university level. In Italy comparison was resorted to in
the latter part of the nineteenth century when the State constructed its legal identity
supported by foreign, particularly German models. Even today there are lots of
comparative law professors in Italy. However, in Germany comparative law has a
much more modest role in the faculties of law and comparative law is left to a rather
small group of dedicated specialists.

It is not only a question of the academic strengthening of comparative

law. We can, for example, register the rise of comparative human rights
in the twenty-first century which was due to the work of the European
Court of Human Rights. Also the judgments given by the Court of
Justice of the European Union have made frequent use of comparative
law. Some courts in the former socialist countries of Eastern Europe
quite openly seem to make use of comparative approaches as part of their
legal decision-making. In the United States, on the other hand, the
majority of the Supreme Court of the federal State still want to protect its
own legal tradition, which in their opinion is without doubt the best in
the world. The United States is about to be left alone in its stubborn legal
nationalism—naturally there is comparative law in the US too, but its
role is different from what it is in Europe. Integration has changed the
legal mentality climate especially in Europe.
Over the past few years one of the major development trends in
comparative law has been the breaking away from the limits set by its
connection with private international law in the twentieth century.
Overall it can be stated that private law is no longer the boundary for
comparative law. In addition, comparison, having got rid of its doctrinal
straitjacket, has opened up towards legal anthropology, legal history and
legal linguistics.

A. Legal Systematics and Comparison: Private Law v Public Law

Research in comparative law has up till now concentrated on the field of

private law. The same applies to the discussion on the original point of
view concerning the theory of comparative law. One reason for this has
been that the practical needs of comparative law used to arise from the

22
sphere of private international law where issues connected to private law
in international relations were studied. Such an issue is, for example, the
decision on the choice of law for making agreements. As an academic
subject private international law consists of several different sectors,
such as the international law of obligations, the international law of
family and inheritance as well as the international law of property and
international civil procedural law.
The commercial and personal relations between natural and legal
persons crossing national borders have traditionally been closer and
more developed than the relations between States and their
administrative apparatus. Public law, especially administrative law, and
constitutional law are, as developed sectors of law, also considerably
younger than the core of civil law that reaches back to Roman law. On
the other hand, several more recent branches of law (eg marketing law,
competition law, labour law and social welfare law) are also virtually
devoid of contextual links to Roman law. The previous 100 years
changed comparative law’s focus along a certain route up until the end of
the century.
Comparative law was born and grew up in the last two decades of the
twentieth century as a by-product of private international law. Almost all
comparatists were in one way or another interested in the issues of
private international law. Comparative law was a kind of auxiliary
method (or little servant) by means of which it was possible to clarify
certain issues in private international law. The idea was that private
international law was a natural channel that leads to comparative law
because foreign law had to be applied there.
Several of the classical researchers of comparative law mastered both fields, with
perhaps Ernst Rabel (1874–1955) being the best example. With good reason he can
be named as one of the most central figures in academically ambitious comparative
study in the twentieth century. Among others, he wrote the classic private
international law text The Conflict of Laws in the 1940s.4 Rabel as a person
manifested the tight bond between comparative law and private international law.
Remnants of this old tradition can be seen all around the globe in law faculties.
Internationally, this old connection is still very well known, but is clearly losing
ground. One major reason is of a practical nature: it is difficult to be simultaneously
an expert in two demanding fields of legal study. And, despite the term
‘international’, private international law is not really international at all.

The lack of comparison in public law was at that time based on certain
legal theoretical beliefs. For public law the most central object of
regulation is the operation and structure of the State and its relation to

23
citizens, and therefore it was considered to be heavily bound up with
many factors that were external to law, such as political history and
ideological factors. The special nature of public law was suspected to
form obstacles for the approach used in comparative law. This was
earlier seen in the fact that the classic general presentations in
comparative law were concentrating exclusively on private law.
Among the European classics that concentrated on private law there has been Traité
de droit comparé by Pierre Arminjon, Boris Nolde and Martin Wolff, published in
three parts in the 1950s, Les grands systémes de droit contemporains by René David,
first published in the 1960s 5 and Einführung in die Rechtsvergleichung auf dem
Gebiete des Privatrechts by Konrad Zweigert and Hein Kötz, which has been
translated into several languages and was first published at the beginning of the
1970s.6 In the United States, Comparative Law: Cases, Text, Materials by Rudolf B
Schlesinger, which was first published in the 1950s, can be considered an equivalent
work. The latest edition of Schlesinger’s book, which was published posthumously in
2009, has broken free from the limitations of not only private law but also of non-
Western law.7

The point of view according to which private law would somehow be

less dependent on non-legal factors (such as history, religion and culture)
rests on shaky ground. For example, such a basic civil institution as
marriage quickly shows to a comparatist that legal arrangements and
their grounds as well as the factors that influence their acquisition are
often found in factors that are outside of law (eg the institution of
marriage in Hindu law, Islamic law and Western law). The same applies
to legal regulation of family and inheritance; the differences between
public law and private law are in this respect mainly superficial.
Moreover, the earlier mistaken belief of the straightforward similarity of
legal cultures even in the core sectors of private law has proved brittle.
We have become more conscious of nuances—a contribution of modern
comparative law.
Some recent developmental aspects have put several would-be
obstacles for comparative public law in a questionable light. The
discussion on the theory and method of comparative law in this
millennium proves that public law has caught up with private law, which
earlier held the dominant place. The division has been flexible from the
start since it has been possible for public corporations to have also a
private law relation to a private person or body, as for example when a
public corporation buys real or movable property from a citizen. In such
a case it is not a question of a public legal relationship that would include

24
the exercise of official authority, and therefore private law regulations
are applied.
In recent years the flexibility of the division has become all the more
obvious. The nature of the exercise of national public authority has
changed, due to, for example, different procurement procedures and the
privatisation of public undertakings having eroded the traditional
borderline between private and public law. Public undertakings are taken
by private actors but on the authorisation given by public power. Hence,
it is no longer possible to draw an exact dividing line between these two
main sectors of law. The borderlines between fields of law are now
subject to constant change. The same applies to the relationship between
national, supranational and international law in Europe as well as
elsewhere. Drawing dividing lines between fields of law is also made
difficult by the fact that, for example, criminal law has slowly started to
turn European, and comparative criminal law has gained ground.
The key questions of public law emerged in a completely new way
after the political eruption that took place in Eastern Europe in 1989–90.
In the wake of the eruption, the adoption (so-called model shopping) of
renewed constitutional laws and various legal institutions into the legal
systems that were purged of their socialist characteristics created
completely new ground for practical comparative law. Another major
factor in the rise of the significance of comparative public law has been
and continues to be European integration, which also includes European
human rights. This does not merely concern the European Union,
although the EU’s contribution to the rise of comparison cannot be
denied.
In addition, it has to be mentioned that there has been a huge increase
in comparative constitutional law since the 1990s to the point where it is
now the most vigorous and dynamic area in comparative law in the
twentieth century. Swedish constitutional comparatist Anna Jonsson
Cornell sums up the development as follows: ‘comparative constitutional
law has grown in significance and impact from the middle of the 1900s,
and in the beginning of the twenty-first century it has become an
established discipline and legal method’ 8 (‘har komparativ
konstitutionell rätt vuxit i betydelse och inflytande sedan mitten på 1900-
talet för att i början på 2000-talet bli ett etablerat rättsvetenskapligt ämne
och juridisk metod’). In effect, constitutional comparison has been
established beside comparative private law and it seems that other fields
(administrative law, criminal law) are going to do the same.

25
On the other hand, talk about the European federation and the death of
State sovereignty, which was in vogue as late as in the 1990s and early
2000s, has in the 2010s been less frequent because the European Union
has been in great difficulties due to the financial problems of its Member
States. National legal cultures, in spite of their harmonisation, are still in
existence. Convergence is a fact, but profound unification is still a
utopia: the decrease in differences has not resulted in the similarity of
systems and disappearance of all differences.
There is no doubt that the development in the 2000s has improved the
status of public comparative law. The difference between public and
private law is in no way significant for the methodology and theory of
comparative law. This is due to the fact that the general questions of
comparative law are the same in all subsections of comparative law. The
great majority of the research on comparative law still takes place in the
field of private law, but this is not so dominant any more. It is important
to emphasise that there is no special ‘comparative public law theory’ that
in some decisive way would differ from the ‘comparative private law
theory’. The theoretically and methodologically fundamental questions
are the same, independent of the field of law, although different
knowledge-interests cause different emphases. It is essential to recognise
the research topic and one’s own special interest in it and to make the
methodological choices based on them. A constitutional comparatist can
learn from a civil law comparatist and vice versa.
The different characteristics of different fields of law by no means
prevent comparative law, but they have to be taken into consideration
when attempts are made to explain the differences and similarities
detected. It is not, however, easy to study differences and similarities,
and the comparatist cannot avoid the irrevocable fact that they should
also understand foreign legal culture. Comparative legal sociologist
David Nelken aptly writes:
All comparative work involves the exploration of similarities and differences: the
problem is how to find cross-cultural criteria for isolating and identifying such
variables for the purpose of demonstrating similarities or differences in legal culture.
This is not merely a technical question.9

In comparative methodology a matter is merely a technical problem only

very rarely. The mental challenge of comparison comes from the
difference in legal cultures—diversity and hybridity present their own
challenges. It is never easy to understand something that is unknown,
and understanding a foreign law can be especially difficult if the

26
challenge of understanding is accompanied with the need to unlearn
one’s own law. On the other hand, this is precisely where the attraction
of comparison lies. In the words of John F Kennedy, lawyers often
choose comparative studies ‘not because they are easy, but because they
are hard’.

1 H Maine, Ancient Law: Its Connection with the Early History of Society, and Its
Relation to Modern Ideas (London, John Murray, 1861).
2 FJ Goodnow, Comparative Administrative Law: An Analysis of the Administrative
Systems, National and Local, of the United States, England, France and Germany vols
1–2 (New York, G P Putnam’s Sons, 1897).
3 See P Legrand and R Munday (eds), Comparative Legal Studies: Traditions and
Transitions (Cambridge, Cambridge University Press, 2003).
4 See E Rabel, The Conflict of Laws: A Comparative Study (Michigan, University of
Michigan Law School, 1945).
5 The 12th edition will be published in 2015; co-authors are C Jauffret-Spinosi and M
Goré (Dalloz, Paris).
6 English translation, T Weir, An Introduction to Comparative Law, 3rd edn (Oxford,
Oxford University Press, 1998).
7 Schlesinger’s Comparative Law was edited and renewed by younger generation
comparatists U Mattei, T Ruskola and A Gidi (New York, Foundation Press, 2009).
8 ‘har komparativ konstitutionell rätt vuxit i betydelse och inflytande sedan mitten på
1900-talet för att i början på 2000-talet bli ett etablerat rättsvetenskapligt ämne och
juridisk metod’, A Jonsson Cornell, ‘Inledning’ in Komparativ konstitutionell rätt
(Uppsala, Iustus förlag, 2012) 8–12, 8.
9 D Nelken, ‘Comparing Legal Cultures’ in A Sarat (ed), The Blackwell Companion
to Law and Society (Malden MA, Blackwell Publishing, 2008) 113–27, 119.

27
3

Comparative Law—Definitions and

Distinctions

COMPARATIVE LAW IS practised in several different branches of law

and for many different purposes. Because of this versatility it is
impossible to give a definition that would be universal and fit for every
purpose. In spite of the versatility, a reasonably general definition can be
given. It corresponds sufficiently well with the views of the great
majority of comparatists about what in fact comparative law is.
However, such a presentation is inevitably a kind of an average or
blueprint, which in a textbook meant for a large audience is unavoidably
an all-encompassing approach.
The mainstream of comparative law means here roughly such legal
comparison as was born in the early-nineteenth century when a
compilation of extensive national codifications of civil law was started in
Continental Europe. This was by no means the first time comparison
took place, but in many ways academic modern comparative law as a
discipline owes much to the legal thinking that was born in the
nineteenth century. Before then the systematic or scientific aspect of
comparative law had not generally been the aim. When academic legal
study was transformed, comparative law also changed; we could say that
scientification took place, or at least we can talk about academisation.
In spite of scientification the basic setting for comparison as a form of
research seems relatively uncomplicated. One of the great names in
comparative law in the twentieth century, German-American Rudolf B
Schlesinger (1909–96), summed up comparative law in the mid-1990s as
follows: ‘To compare means to observe and to explain similarities as
well as differences’.1 In other words it is a question of the similarities

28
and differences found as well as attempts to explain why there are
differences and similarities in the first place. The basic setting in itself is
very simple indeed.

I. CHALLENGE OF FURTHER DEFINITION

Before attempting to define comparative law in greater detail or to
demonstrate the basic elements of comparative research in general, the
concepts involved ought to be clarified. In practice this means that a
flexible specification has to be given concerning the point of view and
topic of this book. What are we talking about and what precisely do we
mean when we speak of comparative law?
The expressions ‘comparative law’ (German Rechtsvergleichung, French droit
comparé) and ‘comparative legal science’ (German Vergleichende
Rechtswissenschaft, French science du droit comparé) are in practice used as
synonyms in legal literature. If any distinction is to be made, the practice has been
that comparative legal science refers especially to comparative law in the academic
context. In other words, in a more detailed analysis a difference can be made between
them, and there has been discussion about this among comparatists. But, from the
point of view of an advanced textbook in comparison there is no need to
problematise this relative difference between the concepts. In the same way, the
question about whether comparative law is ‘a research branch’ or only ‘a method’ is
irrelevant—it is both of them. It is a question of the purpose of comparison which has
the decisive role.

In spite of what is said above, in the 2000s a new division between the
expressions ‘comparative law’ and ‘comparative legal studies’ was born.
The first mentioned group has more proponents than the latter. It
continues from the premises on which the above-mentioned definition by
Schlesinger is based. Researchers who emphasise the critical research
approach, and who intentionally want to keep apart from comparative
law that has a normative/doctrinal emphasis, in most cases use the latter
expression. In this book the expression comparative law is used to cover
all legally oriented comparative study. The definition here is inclusive,
not exclusive. And by and large, for those who actually compare laws the
demarcation-question is of a secondary nature.

A. Crossing the Borders

29
The difference compared to the normative research of the law (doctrinal
study of law) in force is at least to some extent reasonably clear.
Comparative law is always an attempt to cross borders that are due to
lack of knowledge and in a wider sense set by the borders between legal
systems: it is a question of an attempt to imagine oneself in the position
of a jurist (or a professional who is in charge of a corresponding
function) working professionally in the context of foreign law. Albeit, a
comparative approach can of course be utilised in doctrinal research too.
In the comparative law literature this is described by saying that the
comparatist should try to think in the same way as the lawyers in the
compared system (internal view of law). The idea is plausible, although
it is prudent to remember that it is also always largely a fictive idea
whose function is to serve as a general methodological guideline for the
foreign comparatist. In other words, a Scandinavian lawyer will not turn
into a Saudi-Arabian Muslim lawyer regardless of how much he or she
puts their soul into it—the same of course works the other way round.
Epistemic limits are easier to explain and to theorise over than they are
to overcome.
The lawyer’s task demands plenty of knowledge and skills even within one system.
An Internal view of law is not a thing that can or should be taken lightly. To get to
know enough of foreign law in order to understand how it functions (as seen from the
inside) is a formidable challenge. Usually we think that the (domestic) lawyer should
be able to interpret law, ie they should be able to give a sensible and reasonable
meaning to the expressions used in the sources of law when the law is applied. This
means that the native lawyer should be aware of the relevant statutory law, case law
and the mutual relationship between different norms. On the other hand, it is obvious
that the comparatist does not turn into a lawyer of the systems studied: theoretically
she/he is still an outsider although—if comparison succeeds —a well-informed
outsider.

There is, however, something that a comparatist should be able to do: according to
Professor John Bell from Cambridge University, the comparatist should be able to
reconstruct such a picture of the foreign law so that someone who does not know the
system could understand the reconstruction.2 In this way the comparatist’s work
creates novel reconstructed knowledge of law; a kind of dialogue between the
systems studied. This requires that the legal culture be translated so that lawyers in
the system under study do not regard the picture given of their law by the comparatist
as clearly faulty or misleading. All the same, the picture reconstructed by the
comparatist is different; a kind of alternative reality of foreign law. This is due to the
fact that the experience horizon of the comparatist differs from that of the lawyer
from within the system.

30
Above it was argued that definition is not a question of life and death for
the comparatist. Be that as it may, perhaps we can say that the basic
definition of comparative law has some significance. By means of the
definition, comparative law stands out from the other legal disciplines
and other research on law. Owing to its study subject—law—
comparative law differs, for example, from the comparative study of
politics or comparative pedagogics. However, it is not worthwhile
exaggerating the kind and extent of the differences. Comparative law is a
part of social sciences and more extensively part of the study of
humankind. To be more exact, comparative law is part of the entity that
consists of legal disciplines: a part of the organised attempt to understand
human law, a special normative phenomenon that is not limited to a
certain state or cultural sphere.
In a systematic respect comparative law can be divided into at least
two parts. On the one hand, there is the actual comparative study of law
(‘doing it’) and, on the other hand, the theory of comparative law
(‘talking about it’). In the former, different legal systems or their parts
are studied. In the latter, comparative law itself is under study. Typical
for both of these disciplines is that foreign legal rules and norms and
legal decisions or customs as well as their research theory can be studied
on several different levels that are not mutually exclusive. Different
overlapping study methods complement each other. To a great extent it is
a question of the rough and principled division of the comparative law
discipline, the use of which is mainly supported by pedagogical factors.
Nevertheless, for the self-understanding of the comparatist it can be of
benefit.

II. COMPARATIVE STUDY OF LAW

It is possible on the general level to present a blueprint definition and say
that comparative research of law aims at lining up different legal systems
in order to generate information. Comparative law is aimed at the legal
systems of different States (or State-like formations) or their segments
that are significant for research problems. But what does the concept of
‘legal system’ really mean? Every native legal doctrine has its
established answers that definitely do not always satisfy the comparatist.
The comparatists’ dilemma here is clear: they cannot rely on internal
definitions even though they must be aware of internal understandings.

31
To simplify, legal system refers to the entity formed of legal norms,
which in addition to statutory law and case law includes customary law,
established legal practices, legal concepts and a specified way of
handling and classifying legal concepts and norms. In most cases it is a
question of a normative system of legal rules that are in force in a State
or a State-like formation. ‘Legal system’ is said to be an entity formed by
law in force or valid law. If we use the term ‘legal system’, we normally
mean the more extensive entity that covers the ‘legal order’ (German
Rechtsordnung, French ordre juridique) and legal thinking as well as
including legal cultural dimensions.
It is worth noting that from the point of view of comparative law ‘legal system’ and
‘legal order’ cannot very successfully be kept apart. In this book the concept legal
order (Rechtsordnung) is scarcely used because it is regarded as containing elements
also from legal system (Rechtssystem). In comparative law it is impossible to make a
clear division between them because in most States these dimensions overlap.3
Furthermore, there are several systems, for example in States with a Muslim majority
that refer to Islamic law, where ingredients of religious norms also seep into the legal
system: secular and religious legal norms are intertwined in ways where local
religious leaders occupy some of the functions that in Western States are filled by
professional lawyers. In some places in Africa there are chieftains or elders councils
which complement the methods used for solving conflicts within the formal national
legal system. These unofficial, but deeply rooted, customary normativities are just as
interesting for comparatists who are interested in similarities and differences.

A. Universalism?

The prevailing mindset and research ethics of comparison are rather well
described by universalism and a conscious attempt to break loose from
the limits in legal research set by nation-States. This feature has long
been the research-ethical and legal-theoretical mobiliser of many
comparatists. For example, Professor Raymond Saleilles from France
(1855–1912), organiser of the World Conference for Comparative Law
in Paris in 1900 and a prominent figure of comparative law, saw
comparative law as a tool with which it was possible to reveal the
universal principles of law. Before him there was the German Anselm
von Feuerbach (1775–1833), a legal scholar who thought that
comparative law should lead to a kind of universal jurisprudence
(German Universaljurisprudenz). Nowadays the aims are less ambitious.
And yet, a certain universalism belongs to modern comparative law
too. Comparative law is international in nature because it consciously
detaches itself from the limits set by the legal system of a nation-State.

32
Comparative analogy dismisses borders from the point of view of
information production. Research interests of national legal disciplines
focus on their own legal order; therefore, their results remain bound to
the nation-State. Importantly, private international law and public
international law have normative system-bound aspects and
characteristics that separate them from the actual comparative law
research. However, there are views according to which the fundamental
reason for comparative law is in fact to gain a more profound
understanding of one’s own legal system: by studying foreign law it is
possible to realise what is typical of one’s own law. To put it another
way, it can be a case of getting a learning experience of one’s own law
by means of comparison (as if looking at one’s self from the outside).
The idea about the comparative basic dimension crossing national borders in legal
research is not particularly modern or related to globalisation only or to European
integration. In fact in the middle of the nineteenth century an influential German
jurist Rudolph von Jhering (1818–92) complained about it: ‘Science has turned
provincial, its scientific borders are identical with its political borders: the situation is
humiliating and unworthy of science!’ 4 The citation in question is probably one of
the most popular mantras, which European comparatists have cited with approval
through the whole of the twentieth century, and its popularity shows no signs of
fading in the twenty-first century. Von Jhering seems to have expressed the basic
ethos of the comparative lawyer fittingly and concisely: there is an epistemic urge to
cross borders or to gain knowledge about law.

The research approach and academic positioning of comparative law

place it among general legal studies. In German legal literature such
legal studies are referred to as Grundlagenfächer, ie non-doctrinal basic
research of law (Grundlagenforschung) whose core contents are
Rechtsgeschichte (legal history), Rechtstheorie (legal theory) and
Rechtsvergleichung (comparative law). These fields are partly committed
to the same epistemic premises as the doctrinal study of law; they
complete the picture conveyed by doctrinal study and enrich the
methodology of legal study, without fully losing the internal legal
perspective, unlike the sociology of law. Comparative law as a field of
study is undoubtedly one of the Grundlagenfächer. But, there are
differences too.
Comparative law aims at general legal knowledge that is not as State-
specific in nature as in national legal research. Results of comparative
law can be utilised as a part of normative argumentation but its own
knowledge-interest is not normative as it is in the doctrinal study of law.
It is a question of legal research that crosses national borders and

33
attempts to explain and evaluate the reasons for the similarities and
differences of various legal systems. In fact, the research results
concerning national law are valid only within its own legal order. By
means of comparison it is possible to understand what kind of legal
remedies have been referred to in other societies in order to reach social
aims that are often rather similar. On the other hand, occasionally the
aims and measures are different—understanding why this is the case is
also among the objectives of comparison. There is an underlying
necessity to understand law contextually and its relation to organised
human communities.
In the scholarly sense, one of the justifications for comparison has
been the idea that, the more there are cases of comparison, the more
reliable the conclusions. This eliminates hasty generalisations made on
the basis of sporadic or exceptional cases. For these reasons comparative
law has been called the school of truth (French une école de vérité). In
this respect the study of German civil law, for example, would be the
sensible choice in many different countries: the famous civil law
codification Bürgerliches Gesetzesbuch (BGB) that came into force in
Germany in 1900 has been the model for several States and it has been
copied in many systems. In spite of this, national civil law codifications
are not identical to the German ones, which is well exemplified by the
Greek case.
Just as in Germany the civil codification in Greece (Greek Αστικός Κώδικας, 1946)
reflects the legal culture and mentality of the country. Its central features are its
abstract and systematic nature, reliance on written law and the number of concepts
most of which clearly resemble the German legal thinking and to some extent the
French one. The book of civil law is very much like the BGB—the autonomy of an
individual, private property and freedom of contract are in many places the driving
force behind the legal policy, but not in such an obvious and old-fashioned way as in
the BGB. The sections or books (Bücher) of the BGB are: Allgemeiner Teil (general
section), Recht der Schuldverhältnisse (law of obligations), Sachenrecht (law of
property), Familienrecht (family law) and Erbrecht (law of inheritance). The basic
structure is exactly the same as in the Greek civil law codification. In spite of this,
Αστικός Κώδικας is not a slavish copy. It has been built on a variety of material: there
are ingredients from Roman and even Byzantine law and German Pandects, a strong
influence of the German BGB, something from French civil codification and
elements of the Swiss civil law. A clear difference from the BGB is the fact that the
Greek codification contains (in the form of written law) such general clauses that
were acquired in Germany only through case law after 1900 when the BGB came
into force.

34
B. Research Results and their Use

Results obtained by means of comparison can be used for the

formulation of theories, finding new legal solutions or in legal policy and
the drafting of legislation. It depends on the user of the results whether
the role given to this information is normative, ornamental, critical or
descriptive—when aims are practical, results are part of the normative
process. With theoretical aims, a sufficient aim can be knowledge
formation without normative aims connected to national or international
law. Independent of the use of the results, comparative law is in all cases
an extender of the knowledge base. The comparatist could be called the
midwife of broad legal knowledge: they are neither the source nor
creators of knowledge but persons who help new comparative
knowledge to enter into the world.
Extending the knowledge base does not mean that comparison would
produce, for instance, for the courts a binding norm that is applicable as
such. This would be a too straightforward and rough picture of a
complex matter. Comparison itself does not bring about results that are
strictly normative in the same sense as in the doctrinal study of law. This
is due to the fact that it is possible by means of comparative law to
advance and qualitatively improve legal argumentation. In such a case,
additional information is produced by means of comparison, eg whether
by the means of legal decision-making a certain interpretation can be
entered into when there is a so-called hard case (a decision can be
reached only by interpreting laws in a creative manner) at hand. For
example, in the European human rights context the comparative
dimension often plays some sort of role.
The European Court of Human Rights often makes use of comparative law in its
decision-making. For example, in the case of Phinikaridou (2007) the question was
about the establishment of paternity and the strict regulation of time concerning the
limitation period. The Court referred, as a legal source in its decision, to comparative
law (paragraph 58):

A comparative examination of the Contracting States’ legislation on the institution of

actions for judicial recognition of paternity reveals that there is no uniform approach
in this field. Unlike, however, proceedings by fathers for the establishment or denial
of paternity … a significant number of States do not set a limitation period for
children to bring an action aiming to have paternity established. Indeed, a tendency
can be ascertained towards a greater protection of the right of the child to have its
paternal affiliation established.5

35
Several countries took a stand on the child’s right to bring an action without a
limitation period. In only a few countries has an attempt been made to solve
problems caused by the fact that the child was informed of the matters relevant to the
parenthood only after the time limit had expired. The comparative argument
supported the child’s right to know about his/her parent in spite of the limitation
period set by the national law.

C. Restrictions on Use

In spite of the extensive possibilities of using comparative law it has to

be remembered that there are limitations concerning the comparative
approach. They are caused by the fact that it is never possible to cross
cultural borders totally and that law as a contextual phenomenon is so
special and multidimensional a study subject that it cannot be totally
understood and exhaustively explained by research. On the other hand,
arguments which represent extreme relativism and according to which
understanding anything that is foreign is all but impossible are against
the very ethos of comparative law. Everyday experience and common
sense do not support such an extreme view: people can understand each
other even if their legal-cultural backgrounds are quite different.
Understanding has to do with knowledge, and here it does not mean the
same as acceptance, which is an attitude. We can understand without
accepting and accept without understanding—such is the epistemic
constitution of homo sapiens.
The dissimilarity of legal-cultural backgrounds does not necessarily
result in conflict; instead, different legal traditions can live side by side
and even tolerate each other. The same idea of legal diversity fits
comparative law very well. It is not a question of the dominance of one
legal culture over others but of the perception and recognition of the
versatility of legal cultures. Samuel Huntington’s (1927–2008) famous
theory about the clash of civilizations has never fitted the law: legal
cultures learn from each other, and their mutual contacts change cultures.
Huntington assumed that people’s cultural and religious identities would
be the primary source of conflicts after the Cold War.6 In the legal world
this kind of development has not taken place although in the world of
politics it may have some truth. In any case, it is beneficial for the
comparatist to become aware of their own strong prejudices and implicit
epistemic assumptions.
To recognise prejudice and assumptions is useful and necessary, but a
certain sense of reality is also called for. Opportunities for comparative

36
law are always limited to some extent. In particular, if the systems
compared are legal-culturally far apart from each other, the capacity of
the comparatist to genuinely understand foreign law is inevitably
insufficient. This fact easily arises in a situation where the comparatist
with a Western background studies Islamic law or the legal tradition of
indigenous peoples. This does not mean however that culturally
unfamiliar law could not be included in comparison. Comparison is a
process of meeting the challenge rather than capitulating because of
epistemic and methodological difficulties. Mentally, the comparatist is
more like Bob the Builder (animated character) than the Great
Philosopher.
Bob and his group do renovations and other projects. The children’s programme
underlines conflict resolution and cooperation. In each episode Bob asks, ‘Can we fix
it?’ Other characters always answer, ‘Yes we can!’ even though their task is very
hard to accomplish. Now, the comparatist asks can they study foreign law and
compare it, and the answer must be, ‘Yes they can!’ This mindset may appear as
naïve and clearly it belittles certain difficulties involved in the comparative
endeavour. However, this kind of attitude encourages performing comparisons rather
than dwelling endlessly on transcendental philosophical problems (which may as
such be both relevant and rewarding to a scholar) concerning the epistemology and
methodology of comparative law.

Hence, it is a question regarding the fact that the comparatist ought to

recognise the risk factors involved in the research frame in order to
minimise them. The difficulty of the research frame has an impact on the
firmness of the conclusions it is sensible to draw on the basis of
comparison. To make it simple we could say that the more demanding
the research setting (cultural dimension, linguistic dimension etc), the
more cautious the conclusions.

III. THE THEORY OF COMPARATIVE LAW

The theory of comparative law can be further divided into two main
parts. Characteristically, in the theory of comparative law an attempt is
made to formulate the various legal systems of the world (in a broad
sense), classifications and systematisations (typologies, taxonomies) by
means of which the typical features of different legal orders are made
visible (in detail chapters nine to eleven). The grouping of legal orders
means that the fundamental and permanent ingredients of legal systems

37
are summed up to get informative packages by means of which it is
possible, for example, to reach educational goals in comparative law.

A. Macro-comparison

In the theory of comparative law, law groups, legal families, legal

cultures and legal traditions are mentioned. Such classifications mainly
refer to whole systems/normativities, and they represent macro-
comparison whose theory is discussed in more detail later in this book.
Typologies with a lower abstraction level are built in different sectors of
law, like for example in comparative constitutional study where as a
result of comparison different typologies of models for controlling the
constitutionality of laws can be presented. When constructing legal
families, the comparatist tries to illustrate the nature of common legal-
cultural phenomena and the reasons for their manifestations. This is how
we classify legal orders into Roman-Germanic or common law systems
or regard Nordic law as a kind of version of these two that is culturally in
a legal sense closer to mainland Europe, ie the legal-cultural sphere of
civil law rather than common law.
Roman-Germanic law refers to law that originated in Continental
Europe and which is divided into Roman (French part) and Germanic
(German part). In the English language literature on comparative law,
they are often also called civil law countries or the civil law legal family
because the legal culture has been greatly influenced by the
interpretation of Roman civil law or ius civile (originally civil law of the
Roman people, distinguished from ius gentium, ie the law observed by
all nations including Romans) from the Middle Ages. This book uses
both expressions side by side when referring to the originally Continental
European legal tradition, which has since spread far and wide, in regard
to its voluntary or involuntary adoption in the context of colonisation.
There is a short epitomised discussion on them in chapter nine, section I,
Basic Blocks of Macro-comparison (common law, civil law, mixed law,
traditional law).
If general and typical features of foreign legal systems are known, it is
easier to understand the place of individual rules, principles and
doctrines as part of the entirety of foreign legal systems. The legal
significance of regulations or normative customs found is also easier to
evaluate correctly. This fact is of importance from the point of view of
comparative law as to whether it strives for instant practical aims or has
theoretical targets. Typically, the most common similar features of

38
different legal systems both facilitate the explanatory function of
comparative law and contribute to the study of foreign law, its use in
legislation and as part of legal decision-making.

B. Theory and Methodology

In addition to forming legal families (or patching up other macro-

constructions) the theory of comparative law deals with the methodology
of comparative law and the problems and solutions related to research
that come up when foreign legal systems are studied. There are,
however, several difficulties and hindrances. The main obstacle is easy to
pinpoint: there is no single method concerning the theory of comparative
law because the method (or each approach) is selected on the basis of the
study topic and what the researcher has decided to emphasise. This can
be concreticised with an example: what works with the Nordic marital
right to property does not necessarily work when looking into the marital
right to property in North-African States.
The methodological issues in comparative law are well described in the extensive
Oxford Handbook (2006) and the comprehensive Elgar Encyclopedia (2012).7 The
Cambridge Companion (2012) comes close to the Elgar Encyclopedia and Oxford
Handbook, but it is less voluminous. In a theoretical sense it seems to be also more
critical than the Elgar and Oxford books, which assume a more mainstream approach
to the discipline.8

In addition to these, a methodological general picture is given in Methodologies of

Legal Research (2011).9 Methods of Comparative Law (2012) is a also useful work
for theoretical and methodological issues.10 Also, the need to bridge the gap between
theory and practice in comparative law is today understood better than in the past.
The book Practice and Theory (2012) offers a collection of texts reflecting on the
methodological challenges arising in practical comparative research. Practice and
Theory also provides useful critical and theoretical reflections over practical
methodological challenges.11 The Method and Culture (2014) is a also useful
collection in regard to comparative law’s epistemology and methodology.12

Comparative law methodology attempts to present solutions for the

problems that most typically occur within comparative law research. Part
of the problem setting and characteristic features apply to all lines of
comparative research, while some are more topic-specific. Comparative
law has been, and still continues to be, strongly influenced by legal
theory, legal history, legal sociology, legal anthropology and legal

39
linguistics. Yet, in practice the legal discipline that is closest to
comparative law is the history of law and especially its new research
approach that is referred to as the comparative or global history of law,
which is practically indistinguishable from comparative law.
The legal historian who studies past law may need comparison in
order to understand which rules of law are typical or atypical in the
period under study. In the research of the history of the past it is
important to understand the need to have a wider perspective, as pointed
out by James Gordley.13 Comparatists are severely mistaken if they
imagine that present-day legal systems are coherent and logical instead
of being organic amalgams that have developed over time. Historians are
being ignorant if they assume that the law of a certain period can be
studied totally independently of how law has developed elsewhere. Law
travels not only from one region to another but also from one period to
another. Accordingly, different comparative approaches are firmly
interlaced with each other as later (chapter four, section II and chapter
seven, section V) will become obvious.

C. Special Features

In spite of the clear connections between comparative law and other

legal disciplines, comparison can be distinguished from other branches
of legal research. In comparative law, and comparative research in
general, there are typical methodological problems that do not occur in
research methods that are nationally/internally oriented. This fact has
produced rich discussion and debate or as Professor Geoffrey Samuel
puts it, ‘Comparative legal studies, if it has done nothing else, has
provoked a number of fundamental questions about methodology’.14
When foreign law is studied from outside of the system, the
knowledge-interest (why research is being done) differs from the
national normatively oriented research. The comparatist is always in
some ways an epistemic outsider in relation to the unfamiliar systems
under study. In this respect the methodology of comparative study on the
general level is also an individual specialised field, and this applies to
comparative law where the aim is the sensible and justifiable comparison
of different legal systems.
It is easy to notice that in the twenty-first century there has been very
lively discussion on the methods and theoretical assumptions of
comparative [Link] earlier ideas prevalent in the twentieth century still

40
exist, but they have been complemented by several alternative views of
what comparison is all about and how it should be carried out. This
development in the theory of comparative law has completely changed
its earlier image of being a dust-covered field of study curled up under
the arm of private international law: the scenery of methodologies has
become more varied, and the attitude to new methods has become more
tolerant. Interdisciplinarity is becoming an increasingly important topic
within comparative law circles. The price of development has been the
fact that the discipline has become more demanding to master. This book
struggles to pay attention to the discussion going on now and the new
emphases that spring from it. In a way we could talk about new
comparative law—continuing an age-old tradition but in an updated and
theoretically renewed manner.

1 RB Schlesinger, ‘The Past and Future of Comparative Law’ (1995) 43 American

Journal of Comparative Law 477, 477.
2 J Bell, ‘Legal Research and the Distinctiveness of Comparative Law’ in M Van
Hoecke (ed), Methodologies of Legal Research (Oxford, Hart Publishing, 2011) 155–
76, 176.
3 In analytical legal theory, however, the attempt to define ‘legal system’ as a concept
may make sense; see eg J Raz, The Concept of Legal System: An Introduction to the
Theory of Legal System (London, Clarendon Press, 1970). But for the comparative law
purposes of today these kinds of analytical approaches do not offer a fruitful starting
point because they do not embrace the idea of cultural diversity and methodological
pluralism.
4 ‘Die Wissenschaft ist zur Landesjurisprudenz degradiert, die wissenschaftlichen
Gränzen fallen in der Jurisprudenz mit den politischen zusammen. Eine demüthigende,
unwürdige Form für eine Wissenschaft!’, R von Jhering, Geist des römischen Rechts
auf den verschiedenen Stufen seiner Entwicklung, vol 1 (Leipzig, Breitkopf und Härtel,
1866) 15.
5 Phinikaridou v Cyprus (App 23890/02), 20 December 2007.
6 See S Huntington, ‘The Clash of Civilizations?’ (1993) 72 Foreign Affairs 22 (‘The
great divisions among humankind and the dominating source of conflict will be
cultural’).
7 M Reimann and R Zimmermann (eds), The Oxford Handbook of Comparative Law
(Oxford, Oxford University Press, 2006); J Smits (ed), Elgar Encyclopedia of
Comparative Law, 2nd edn (Cheltenham, Edward Elgar, 2012).
8 See M Bussani and U Mattei (eds), The Cambridge Companion to Comparative
Law (Cambridge, Cambridge University Press, 2012).
9 Van Hoecke (ed), Methodologies of Legal Research: Which Kind of Method for
What Kind of Discipline? (n 2).
10 PG Monateri (ed), Methods of Comparative Law (Cheltenham, Edward Elgar,
2012).

41
11 See M Adams and J Bomhoff (eds), Practice and Theory in Comparative Law
(Cambridge, Cambridge University Press, 2012).
12 M Adams and D Heirbaut (eds), The Method and Culture of Comparative Law
(Oxford, Hart Publishing, 2014).
13 J Gordley, ‘Comparative Law and Legal History’ in Reimann and Zimmermann,
Oxford Handbook (n 7) 753–73, 763.
14 G Samuel, ‘Does One Need an Understanding of Methodology in Law Before One
Can Understand Methodology in Comparative Law?’ in Van Hoecke (n 2) 177–208,
178.

42
4

Comparative Law—One of the Legal

Disciplines

I. PART OF A LARGER FIELD OF KNOWLEDGE

LEGAL SCIENCE (IN its various linguistic versions) or law as discipline
is often used as an unproblematic general concept; as if there is just one
monolithic entity whose object is equally monolithic law. In reality, of
course, the attention that different legal research interests put on law is
not identical. For instance, legal economics, normative research
(doctrinal study of law) and legal linguistics irrevocably perceive law in
different ways and from different angles. Yet, they may all be regarded
as legal disciplines. Different sub-fields of legal study can be specified
depending, for example, on which basic theoretical assumptions they
base their work.
We can talk about the family of legal disciplines where the oldest
member, or core discipline if you prefer, is the doctrinal study of law.
Despite a certain amount of overlap, the interests and functions of
different branches of legal study differ from each other. The growth of
the significance of fundamental and human rights has resulted in a
situation where norms and principles in public law have in many ways
started to break into/penetrate other fields of law. Interpretation that is
favourable for fundamental and human rights (so-called human-rights-
friendly-interpretation) and their direct and indirect dimensions is now
reflected in practically all fields of law. In the same way, the European
Union’s law is part of the Member States’ own law and injects non-
national elements into domestic systems.

43
Comparative law is a distinctive member of the family of legal fields
because knowledge-interests, which it tries to satisfy, and methods with
which the answer is pursued, differ from the rest of the legal disciplines.
This deviation is not a whim (of chance) but is due to a specific reason. It
can be maintained that comparative law research has a special
knowledge base which separates it from the other fields of legal study.
Comparison assumes, at least partly, different facilities related to
knowledge acquisition than does normative legal research, which
concentrates on national positive law. Also the approach of comparatists
differs from the perspective of national law: they observe foreign law
inevitably from the epistemic viewpoint of an outsider, while a jurist
operating inside the system has a viewpoint, which inevitably is
theoretically internal (though institutionally external, since it is not a
question of a judge or legislator). Of course, these viewpoints cannot be
kept completely separate, yet they offer a basic conceptualisation of the
field.
As has become clear from the above, in the comparative study of law
different legal systems (or any organised normativities of large-scale
human communities) or their sectors are studied in order to find
differences and similarities. In the theoretically oriented research,
attempts are made to explain the reasons for these differences and
similarities, while in practically oriented research the aim is to draw
practical conclusions for legislation or criticism of law in force.
Approaches used in comparative law can be, for instance, doctrinal
(comparison of regulative texts or precedents), socio-legal (including
legal practice), legal-historical, legal-linguistic, legal-anthropological or
legal-theoretical. If the aims of comparison are practical, the doctrinal
approach normally takes a central position, while legal-theoretical
aspects rise more strongly to the surface when aims are more theoretical
or even speculative in nature. As part of the family of legal disciplines,
comparative law is in any case suitable for promoting the view according
to which modern legal study is a scholarly field, which is
methodologically open and consists of various approaches. Comparative
law is among the interpretative (or hermeneutical) sciences and is based
on the comprehension of the sources and argumentation although
depending on the research topic it can also make use of other materials
and methods. Even though the fundamental nature of comparative law is
hermeneutical, it does not mean, however, that numerical or quantitative
approaches cannot be utilised.

44
II. A MEMBER OF THE FAMILY OF LEGAL
STUDIES

A. Comparative Law and the Normative Approach

Legal doctrine is often called legal dogmatics in Continental Europe:

German Rechtsdogmatik, French la doctrine/doctrine juridique, Greek
νομική δογματική, Finnish oikeusdogmatiikka), ie the historically oldest
branch of legal study attempts to answer the question concerning the
normative content and validity of law. It specifies how law must be
interpreted by creating concepts and clarity between rules on the sources
of law. It is the basic research of normative law that is practised in
particular in Continental Europe and in the systems which have been
heavily influenced by Continental Europe. For example, Nordic
countries belong to the legal culture of legal dogmatics in its wide sense,
while in common law jurisdictions a similar study approach as a direct
counterpart does not exist. Albeit a common law jurist would surely
recognise the doctrinal legal study (legal doctrine) of the universities,
although an exact counterpart to Continental European legal dogmatics is
lacking in their own legal culture. This is why we normally speak of the
doctrinal study of law as it works better in terms of translation in many
legal cultures than ‘legal dogmatics’.
In legal doctrine in most cases it is a question of the study of legal
rules (interpretation of legal texts). When legal texts are interpreted, legal
doctrine attempts simultaneously to analyse the research object by
systematising it. Legal interpretation means that the expression of a
provision or some other legal text, such as a precedent, is given a
justified conceptual meaning on the basis of sources of law.
Systematisation means that the norms under study are organised into a
system that would be as coherent as possible. Systematisation and
interpretation are closely intertwined because the interpretation of the
content of legal sources is also inevitably systematisation:
systematisation links legal rules and principles to a specific context of
the interpretation. This is, however, not something exclusive to Western
jurisprudence. Islamic legal study resembles Western normative legal
study, and the doctrinal study of law in particular, which is systematising
and interpreting (the authoritative text) as to its theoretical basic nature.
The doctrinal study of law—unlike comparative law—is normative: it
attempts to find an answer to the question about how law ought to be

45
interpreted. Yet it is difficult to define legal doctrine methodologically
and briefly. In general, it can be said that in legal doctrine interpretative
methods (hermeneutical text interpretation) are used on the basis of
information available from legal sources when studying the law
(formally in force) in a particular community. The majority of European
legal research concerns mainly legal doctrine that serves practical goals,
although theoretical legal doctrine also exists. The purpose of theoretical
legal doctrine is to create systematisations that facilitate the maintenance
of the legal system, ie reorganising legal material according to the
doctrine of sources of law. The point of view of both theoretical and
practical doctrinal study of law is epistemologically internal: in a way it
is a question of the participant’s point of view as once defined by HLA
Hart (1907–92) in his famous Concept of Law, which in Continental
Europe is frequently characterised by a strong commitment to the
institutionally and epistemologically internal point of view of the
authority applying the law.1 An internal point of view refers to the
perspective of the participant in the system, ie it is paradigmatically the
point of view of legal officials like judges. Interestingly, in private
international law the institutional commitments are the same as in the
doctrinal study of law—internal. The internal point of view basically
specifies what kind of motivation (and assumptions) a lawyer implicitly
bring to the law.
At first sight it can be difficult to see elemental connections between
the national legal doctrine and international comparative law. The first
impression is, however, misleading. One should not overestimate the
differences. Practically oriented comparative law can be closely
connected not only to private international law but also to the national
doctrinal study of law in at least two ways:

1. When there are problematic situations in legal decision-making it is

possible from among the legal/judicial decisions to look for a clue to
how to fill the gaps in the legal system or how to interpret provisions
in so-called hard cases. Clearly, in obvious routine cases comparative
law is only rarely of any sensible use. However, when a decision in
an application problem cannot be found from within one’s own
system, it might prove necessary to ‘look over the fence’: there is no
need to reinvent the wheel each time, not even the legal one.
2. The systematisation (of the legal system) of the national doctrinal
study of law becomes easier when approaches to the same type of
problem applied abroad are studied. It is not a question of direct

46
copying, but of taking something as a model or source of inspiration.
Foreign ideas are not necessarily adopted directly from law in force;
instead, they are filtered through legal literature and the general
doctrines of the national law. Well-known legal theorist Torstein
Eckhoff (1916–93) wrote on this by referring to Norwegian law:
‘References like this can operate partly as illustrative material and
partly as arguments about how questions should be solved by us’.2

However, the doctrinal study of law and comparison are not always
naturally articulated. The relation between comparative law and legal
doctrine can also be decorative in nature. In such cases sections
concerning the law of other countries are included in the national legal-
doctrinal study; in them the state of positive law in other countries is
described. It is crucial to conceive that study originating in the interests
of the national legal system mainly describes the points of view of
different legal systems concerning the issue under study
(Auslandsrechtskunde).
From the actual study of foreign law it is also possible to distinguish
the kind of modern legal doctrine where foreign legal literature is
referred to when opinions concerning domestic law are stated. In such
cases the question is not one of genuine comparative law although there
the borderline of practical comparative law is quite close. On the other
hand, comparison that does not serve legal research but remains
unconnected decoration is futile and meaningless.
In spite of what is said above, in some countries it has been customary to use
comparative law as a hireling of the doctrinal study of law in a way that, from the
viewpoint of comparative law, research cannot be regarded as being especially
rational. For example, in Denmark the starting point has long been that there has to
be a short compulsory comparative survey in a doctoral dissertation on law. The
grand old man of European civil law Ole Lando (1922–) describes this attitude as
follows: ‘A dissertation whose primary aim is something else should have a chapter
on foreign law if it seems that information that could benefit the dissertation would
be available abroad’.3

Clearly, such ‘ornamental’ or ‘decorative’ comparative law has only very

little to do with genuine comparative law, although descriptions of
statutes, principles or institutions that are related to the research topic
and are part of the legal systems of foreign countries can have some
significance in expanding the knowledge base. Differences compared to
comparative study are clear: the starting point for comparative law is that

47
foreign law has to be studied as an entity, or that it pays attention to the
status of the norms studied in the entire legal system, the attitudes
connected to their interpretation and application as well as legal-cultural
factors. If comparison is applied to ‘spice up’ the study of the law in
force in one’s own country with decorations from foreign law, the whole
setting has something that is intellectually untenable: scholarly boasting
with ingredients from foreign law does not serve any sensible aim; it is
just a ritual relic of the legal thinking from the beginning of the twentieth
century.
Now, some may wonder if it is worth talking about the difference
between the doctrinal study of law and comparative law. The
descriptions given of the law of the same country by a comparatist and
someone who is legally trained in national law are not identical. This
does not, however, mean that one would be ‘wrong’ and the other ‘right’.
Descriptions are simply different. They have been made for different
purposes. This inevitably causes a certain problem for the comparatist
who presents the matter in a slightly different way and with a different
emphasis from the national jurist. The comparatist has to understand that
their description and analysis of law is—as far as the foreign law goes—
inevitably the description of an outsider. Here is the thing: the
comparatist imitates or simulates the internal point of view of the jurist
who operates within the system. Generally it is a question of acquiring a
simulated internal point of view, ie methodological construction.
Professor Maurice Adams from the Netherlands describes the idea of a simulated
internal point of view fittingly: ‘The researcher has to understand clearly that they
have to reveal the logic of another legal system in a way that it is understood by the
participants’.4 In other words, the context must also be taken into account.

On the other hand, comparative law and the doctrinal study of law share
several common features, the most important of which are the
hermeneutic perspective on law, reliance on legal sources and the
interpretative nature of study. In addition, both are committed to the
institutional structures, concepts and doctrines of the systems under
study. This is why the comparatist must also partially adapt an internal
view on law.

B. Comparative Law and the Roots of Law

48
Instead of the law in force, legal history studies the past history of law,
legal principles and legal thinking by placing its object of study in a
more extensive social context of a certain era. In legal history the aim,
often, is to explain how the change taken by law is due to more profound
social reasons instead of presenting a pure chronology of laws. From the
point of view of a comparatist, legal-historical knowledge is usually of
quintessential significance since in scholarly comparative law in
particular it is difficult to explain observations made without knowledge
of legal history. For instance, it is also difficult to see how European
legal integration could take place at the legal-cultural level without
knowledge of European legal culture(s) and the ius commune tradition.
Profound comparative law that aims to explain inevitably assumes
knowledge of the past of the legal systems studied. Altogether, we are
not talking about a curiosity or outdated legal information that the
comparatist obsessively churns out to be buried in the mass grave of
footnotes accompanying their study.
Yet, legal history is also a legal discipline, for it studies legal matters
such as legal rules and legal principles. It is interested in legal
institutions, legal practices and the legal thinking of the past. In this
respect legal history is part of the entity formed by legal disciplines, and
practising it assumes an understanding of the internal point of view that
law possesses although the research in itself takes place epistemically
outside of the legal system (external viewpoint, ie non-doctrinal). On the
other hand, methods and other scholarly ideas originate in historical
disciplines and partly in social sciences. It is in fact impossible to
separate comparative law from the comparative legal history that could
perhaps also be called global or stateless legal history.
Often comparative law is seen only to be bound with modern times
and existing legal systems. This view is mistaken. Comparative law,
unlike the doctrinal study of law, is not tightly bound to law in force and,
thus, to an internal contemporary viewpoint. In comparative law research
it is also possible to study law that is no longer in force. Comparative
law can be legal-historical in the most modest sense when it concentrates
on the study of differences and similarities between legal systems which
have existed in some period of time in the past. Legal research that
emphasises a comparative approach and is concerned with the past (or
the relation of the past with the present) can be considered historical
comparative law or just plain comparative law.
‘Match made in heaven’ is the expression that has been used to
describe the relation between legal history and comparative law.

49
However, the relation between legal history and comparative law is
surprisingly complicated and contains various subtle nuances and
overlapping elements. Legal-historical comparison has deep European
roots. The indisputable classic in the field, On the Laws of War and
Peace (De jure belli et pacis, 1625), the work of Hugo Grotius (1583–
1645), who is called the father of modern international law, is worth
mentioning. In this classic, legal solutions that were in accordance with
natural law were sought. Of the present-day researchers Alan Watson in
particular has emphasised the close relation between legal history and
comparative law.5 Watson has been of the opinion that the study of legal
transplants and interaction of historical connections between legal
systems and legal rules (especially Roman law) is in fact what
comparative law ought to be all about.
In legal-historical research, the research object can be studied with a
comparative approach without the comparative method being
particularly explicitly in the foreground. For example, in the study by
Antero Jyränki (1933–) the Finnish grand old man of constitutional law,
variations of models for legal ideas from the beginning of the eighteenth
century to the twentieth century were studied. They were related to the
‘stateless’ validity of constitutional law and were adopted in various
States. The comparative approach of the work by Jyränki is seen in the
fact that similarities and differences of solutions (controlling of
constitutionality) adopted in different systems are discussed and the
reasons for these differences are also explained by means of the history
of ideas and political history.6
The cumbersome nature of the legal-historical research method(s) is
connected to its demanding nature, since mastering the history of any
one legal system is very difficult. When the number of legal systems
increases, the problems of mastering them increase accordingly. They do
not, however, make legal-historical comparison impossible. Certainly,
the research frame is demanding, but frequently it is also fruitful and
insightful.
The legal-historical researcher must in all cases engage in some sort of comparative
law because their own conceptual context is bound to the contemporary period.
Aware or unaware, the historian makes comparisons between the present period and
the period they are studying. The close connection between comparative law and
legal history is clearly seen in the fact that almost all researchers who are regarded as
pioneers in modern comparative law were in contact with the nineteenth-century
German Historical School of Law (German Historische Rechtsschule), which was
represented by great scholars like Friedrich Carl von Savigny (1779–1861) who

50
underlined the historical study of positive law. Savigny was not only influential as a
legal historian but also for comparative law as a discipline as is explained in The
American Journal of Comparative Law (1989).7 Against this background, it certainly
comes as a no surprise that as a branch of research and study, modern comparative
law is closer to comparative legal history than it is to (normative and internal) private
international law or legal doctrine.

From the point of view of legal disciplines it can be stated that almost
everyone who is seriously engaged in comparative law acknowledges
explicitly the historical dimension of law and its significance in the
attempt to understand and explain law. In comparative legal history,
under study are factors that have influenced the history of legal systems
and by means of which it is possible to explain why legal systems are the
way they are now. The emphasis is on the macro-level of comparative
law because comparative legal history attempts to understand the
interdependency between legal systems and cultures.
In practice the comparative legal historian often analyses how and
why legal ideas spread from the legal systems of some regions to other
States and other continents. The transformation (or diffusion, migration)
of ideas as part of the diffusion process can also be the subject of study.
Comparative legal history has in the past few years become increasingly
popular among both legal historians and comparatists. A good example
of the vitality of the field is the journal Comparative Legal History,
which was started at the beginning of 2013 and is published by Hart
Publishing. It is also the official journal of the European Society for
Comparative Legal History.

C. Comparative Law and Sociological Dimensions of Law

The sociology of law studies the effect of legal rules on the behaviour of
people and the connection between law and social reality. The sociology
of law is part of the study of society (ie social science), but the object of
its interest means that it is also part of the legal disciplines. It is for the
field of the sociology of law (or even more broadly socio-legal studies)
to find out how legal rules are observed and how the working of the
society is affected by legal norms, principles or institutions. When the
sociology of law is practised as part of the entity formed by legal
disciplines, we are talking about a multi-disciplinary field of study, ie
socio-legal studies. As a multidisciplinary field it can be placed
somewhere between the doctrinal study of law and social sciences. As

51
Siems points out ‘socio-legal comparative law not only considers the
positive law but also other data related to society’.8
Basically, the sociology of law perceives law in the social context. At
its best it reveals the interdependency and reciprocity between the law,
economy, politics and culture. As part of legal disciplines it widens the
legal horizon when observing law not only as an autonomous normative
order but also as a social factor that covers legal doctrines, legal
practices and legal institutions (external view).
The relation of comparative law to the sociology of law ought to be
quite close, and it can be said that these two branches of legal research
ought to share certain common ideas of law and its study. Among the
many approaches of the sociology of law there is the view that human
behaviour is influenced not only by legal rules but also by many other
factors, while in legal study in general—and in the legal-doctrinal study
of law in particular—there is a tendency on the Continent to underline
the importance of written legal rules and in the common law tradition the
precedents established in higher courts. Simply, comparative law cannot
be committed to an approach that puts too much emphasis on written
rules: customs and practices are sometimes more important than codified
legal rules or leading cases. In indigenous and religious legal cultures
normativities may be distinct from official law but they are still regarded
as genuine normativities by those who belong to those cultures.
Consequently, modern legal comparison as a field of research cannot
help but resemble the sociology of law or, in a more general sense, socio-
legal studies: the internal normative viewpoint of legal doctrine is
lacking.
However, comparative law does not identify with the sociology of law
as only the former tries to find a type of synthesis between the reality
(external) and normativity (internal) of law. In practice, comparative law
settles for finding comprehensible hermeneutical explanations and
reasons for why law is what it is in the systems compared. Most
comparatists are, despite their sympathy, amateurs as sociologists of law.
This does not, however, prevent them using socio-legal materials,
quantitative approaches, and explanations when the comparatist tries to
explain differences and similarities. Besides, differences between
disciplines have in the twenty-first century been diminishing since
comparatists have in the past few years started to discover empirical
materials and their (at least partial) statistical use. Partly, but not
completely, this has been connected to the theory of legal origins (more
about which later).

52
Owing to the empirical or legal realistic views on legal sources, it is not easy in the
sociology of law or comparative law to fall into an attitude (positivism) that
emphasises statutory law and formal sources of law at the expense of legal reality.
For example, in the field of constitutional law this is demonstrated by the effect that
the factual political constitution has on the interpretation of the legal constitution and
in the position of established constitutional practice as the de facto source of law. As
an example of the other extremity we could mention, for example, a study of
customary law practised by indigenous people where there are not necessarily any
written sources of law, and therefore the only study method left is an empirical
(socio-psychological, anthropological or ethnological) field study that is based on
observation and can include interviews or participant observation. In other words, it
would not only be ethnocentric but also positivistic to define law in a narrow manner
that excludes customs and other forms of organised normativities of large-scale
human communities.

Both in the sociology of law and comparative law the aim is to explain
observations made—the sociology of law tries to offer generalising
answers concerning the relation between the society and law, while an
ambitious comparatist tries to find hermeneutical/historical reasons for
the differences and similarities found between legal systems. Both can
also operate to extend the knowledge base in the drafting of legislation or
judging cases in courts. One informs of normative regulation models and
the other of the empirical reality of living law.
The idea of living law (German lebenden Recht) was originally formulated by legal
sociologist Eugen Ehrlich (1862–1922) and he referred with it to normative law (as a
social fact) which dominated social life even though it has not been posited in written
legal propositions. Ehrlich formulated his ideas on living law as a critique of the
formal and conceptual German legal doctrine of Begriffsjurisprudenz.9 For
comparative law, Ehrlich’s ideas were and are important because he emphasised the
role of societal norms which comparatists cannot leave aside. The importance comes
from the fact that Ehrlich was not a legal-anthropologist or a comparatist (studying
culturally different law) but was talking specifically about Western law.

For Ehrlich the study of normative social facts was a genuine legal science, not the
study of empty concepts. An independent legal science would not study words but
rather facts, and this science would not serve practical purpose but pure
knowledge.10 Even though the legal- cultural context of today is very different from
the times of Ehrlich his ideas still remind comparatists of the importance of looking
beyond positive law.

In principle, legal sociology ought to be capable of shedding light on

questions that are connected to the efficiency or functionality of a legal
rule. By means of comparative law, alternative or completely new

53
approaches can be found for legislation or legislative amendments. In the
widest possible meaning both try to explain how legal order affects
human behaviour and what position the legal system (or other types of
organised normativity) has in the social order. On the other hand,
sociology often aims at generalised explanations (nomothetic research)
while in comparative law and legal history the explanations in most
cases concern individual cases (idiographic research), and comparison
has not generally aimed at extensive theory formation with the exception
of the theory of legal origins.
Statistical Comparative Law (German Statistiche Rechtsvergleichung) has been
slowly in the making for the whole of the twenty-first century. Some comparatists
have felt confident in saying that no statistical methods from economics should be
accepted while those who think more sensibly see the situation like Professor Ralf
Michaels: ‘The newly reemerged interest of economists in law is something we
comparative lawyers should cherish and support, not dismiss’.11 On the other hand,
the problem in the use of these materials is making them commensurable because in
different countries information is collected and recorded in different ways and on
different grounds. In spite of this the comparatist should be reasonably sure of the
commensurability and compatibility of the quantitative materials. In this,
comparatists may learn from sociologists and those who are accustomed to using
quantitative methods. Yet, there seems to be no convincing arguments against usage
of numerical/quantified data in the comparative study of law. Accordingly, we can
safely agree with Siems when he concludes that ‘numerical comparative law can
contribute to many core topics of comparative law, such as judicial comparative law,
legal transplants, legal families, and comparisons as a basis for making policy
recommendations’.12

It is crucial to underline that the comparatist is not interested only in

normative rules or principles (written or unwritten). They have to
observe the nature of the law as a specific cultural tradition. Socio-legal
study and the study of comparative law do not identify with each other,
but socio-legal elements are included in comparative law as an equally
natural element alongside normative material. From the point of view of
comparative law, the empirical reality and normativity of law are
intertwined; the significance of positive law only opens up in legal
practice. This also has serious consequences for the self-understanding of
comparative lawyers. Namely, comparatists are only very rarely legal
formalists (positivists) who emphasise the form of law—those who are
formalist do not enjoy esteem in the field.
Particularly close to comparative law is the comparative sociology of
law. There the aim is to make comparisons between societies in order to

54
be able to understand the differences and similarities in socio-legal
phenomena in the societies compared. The comparative sociology of law
has as its basis similar ideas to those of comparative law because it too is
interested in intercultural dialogue, innovations and legal loans, ie the
diffusion of law and legal ideas. The aim is to produce knowledge on
how legal systems of different States or other organised societies really
operate and to explain what causes the differences and similarities. De
l’esprit des lois (1748), the classic study of Montesquieu, was ahead of
its time and is the pioneering work of both the comparative sociology of
law and comparative law.
The definition of comparative study by Professor David Nelken, one
of the current leading researchers, points out how close comparative law
and the comparative sociology of law are to one another: ‘All
comparative research involves the search for social, cultural and other
similarities and differences’.13
Among the most central topics in research and theoretical discussion in the sphere of
the comparative sociology of law in the twenty-first century have been the definition
of legal culture and how it should be studied. An introduction to the thematics is
offered by the work Adapting Legal Cultures, which also presents how the
comparative sociology of law, comparative law and comparative legal history are
very closely connected with each other.14

Publications by American legal historian Lawrence M Friedmann have played a

major role in the development of the field; they are closely connected with his
sociological criticism of comparative law. The main target of his criticism was the
methodology of traditional comparative law. According to Friedmann, it did not have
a logical method, but instead two rough ways of approach: comparative
doctrinal/normative interpretative analysis and system level taxonomy, or macro-
comparison.15 As a result of this criticism, among other concurring critical views,
the concept of legal culture has subsequently risen to the centre of both the sociology
of law and comparative law.

Lately, also a new amalgam of socio-legal (ie law and society) studies and
comparative law has emerged: comparative law and society. This field is but another
addition to the common fields of comparative law and the sociology of law. It is
defined by David S Clark as ‘the common and overlapping area of two constituent
disciplines: comparative law and society’.16 Moreover, in this new field researchers
grasp the legal system as comprising more than merely the formal legal rules. Clark
continues to say that ‘a system involves regular interactions among elements that
together make up an entity with boundaries’. Basically, comparative law and society
marries the societal and legal elements under a comparative framework so that more
than just one system is studied simultaneously.

55
Traditionally, it has been typical to separate normative legal research
from the non-normative study of law on the basis of epistemological
differences. Earlier it was typical to keep the internal and external
approaches to law clearly apart. In this division, the sociology of law or
socio-legal studies has been placed (epistemologically, institutionally and
methodologically) in connection with the point of view of an outsider
and comparative law in between the internal and external ground. In the
discussion of the field in recent years it has become clearer than ever that
the basic legal-theoretical distinction between internal and external had
been too rough. Annelise Riles, an expert in comparative law and legal
anthropology, sums up present feelings as follows: ‘Comparative lawyers
and socio-legal scholars increasingly understand that they are both
insiders and outsiders, both participants and critics, at once’.17 Without a
shadow of a doubt, Riles hits the nail right on the head: comparatists are
both outsiders and insiders. This fact places the comparatist and legal
historian epistemically in a rather similar type of position: external and
internal dimensions are inherently part of the comparative endeavour.
In fact, the rise of legal culture to the epicentre of research in both
comparative law and the sociology of law has done the trick and broken
the earlier way of perceiving the relation of these disciplines to legal
doctrine law. Differences between disciplines seem less important now
since we have again recognised and admitted the significance of the legal
context also for the normative study of law and especially for the
comparative study of law. However, taking the socio-legal or law-in-
context dimension into account does not miraculously transform the
comparatist sociologist, but it does require taking into account ‘the
embeddedness of the legal problems as they present themselves in the
different countries studied’ as John Bell says.18

D. Theoretical and Philosophical Dimensions of Comparative Law

The legal theory or jurisprudence (German Allgemeine Rechtslehre) is

connected to the theoretical study of legal rules, principles and
institutions as well as legal phenomena in general. The theoretical study
of law and legal phenomena is characteristic of legal theory. At first
sight, legal theory and comparative law are quite close and further away
from normative legal doctrine. They observe the language of law and
legal concepts from an angle that is not tied to any particular system.

56
Professor Giovanni Sartor describes the freedom of comparative law and theory of
law from any system by saying that because of this they have to distinguish the
characterisation of a concept and the assumption that the concept applies to a certain
domain.19 The doctrinal study of law need not (in fact must not) keep apart the
characterisation of a concept and the assumption of its belonging to a certain domain.
From this point of view legal theory is dependent on comparison because
philosophical analysis does not solve the problems related to legal concepts.
Professor Dietmar von der Pfordten makes a fitting conclusion: ‘full understanding
of the status of concepts in law would have to inquire into how the formation and
interpretation of legal concepts work in different legal systems and different parts of
the law’.20 For a comparatist this looks like a longer way of saying that a
comparative approach is needed.

So, legal theory is in many ways connected to comparative law. If the

theory of law and its birth or nature is examined, it is possible by means
of the knowledge gained by comparative law to prove that there is no
one ‘correct’ concept of law: common law, Roman-Germanic law, the
law of indigenous peoples and various religious legal systems perceive
even the basic matters in different ways. Similarly, when legal practices
are studied, it is epistemologically emancipatory to break away from
ethnocentrism as described earlier in this book. In particular, in cases
when the legal order is intimately connected with religion, the
knowledge horizon must be widened a long way from Western positive
law towards contexts of law.
Therefore, one should be aware that colonial research attitudes are not
implicitly upheld. What modern comparative law does not need is
epistemological neo-colonialism, which can be seen in the field of law
and development. It becomes elemental to grasp that as comparatists we
are not dealing with curiosities when we study the legal systems of
African tribal law, Northern Aboriginal peoples, Asian legal culture(s) of
the Confucian type or Islamic law. From the point of view of legal
theory, such studies help us to see the theoretical basic assumptions of
our own law as well as what law is and what its nature is in comparison
with other [Link] point is to try to avoid ethnocentrism which
constantly seems to plague the comparative study of law.
It would be a mistake to assume that ethnocentrism would be a problem only for
comparative law. In anthropology too we have numerous examples of such thinking
as Lucien Lévy-Bruhl (1857–1939) clearly shows. He was interested in what he
called ‘the primitive mind’ (la mentalité primitive), which he placed as a counter
mindset to the Western mind. Lévy-Bruhl thought that the primitive mind would
evolve towards the Western mind, ie from primitive to civilisée.21

57
When we deal with the philosophy of legal doctrine, comparative law
has an expansive influence on the methods of knowledge acquisition. Far
too often legal-theoretical constructions seem to be built entirely from
the point of view of either the civil law legal family or the common law
legal family although the legal theories on the structure, nature and
sources of law are meant to be global. For instance, by means of
comparative law research it is possible to realise how extensive the
concept of the legal source actually is. The relation between comparative
law and legal theory has caused well-deserved attention, but at the same
time it has also revealed an extremely wide variety of questions and
answers.
A classical Nordic example of comparative law that serves legal theory is the study
of marriage and divorce law in late-1950s by Finnish legal theorist Otto Brusiin
(1906–73).22 Brusiin focused on how regulations concerning marriage depend on
social, historical and ideological factors. It is a legal-theoretical study that Brusiin
was engaged in that made use of comparative law material and the comparative
approach.

Legal theory in connection with comparative law has usually been connected with a
certain field of law, as for example James Gordley’s work on the theoretical origins
of contract law shows.23 In his book Gordley combined the legal-historical and
comparative law approach with the study of systemic structures of contract law in the
light of the philosophy of Greek Antiquity. He subsequently extended his
comparative law and legal-historical study of legal philosophy widely over the whole
field of private law in his later seminal work concerning the foundations of private
law.24

Another example that is widely known and quoted in the theory of comparative law
is comparative jurisprudence as sketched by American legal scholar William Ewald.
Ewald has stressed the significance of nineteenth-century constitutional theory in
understanding the German civil codification Bürgerliches Gesetzesbuch (BGB) as a
civil law where the way of thinking clearly differs from classical Roman law.
Ewald’s central theoretical idea was that comparative law would move from studying
rules to the study of the underlying philosophy of foreign law. On the other hand,
Ewald emphasised the academic freedom of general comparative law in relation to
actual legal theory and philosophy. The development of Ewald’s theory is best found
in a massive article about comparative jurisprudence from the mid-1990s.25

The influence of comparative law, legal cultures and legal pluralism that is currently
widely known and approved has lately also been recognised in legal theory, as is seen
in the recent book Objectivity in Law and Legal Reasoning.26 Nor can the variety of
cultural ideas that are related to various contexts be ignored any longer in legal

58
theories. Yet, of these two fields comparative law is well ahead of legal theory when
it comes to conceiving the legal-cultural contingency of law.

It has become increasingly obvious that legal-cultural context has a great significance
for legal theory as is pointed out by Christian Dessau in his book about national
aspects of non-national legal theory.27 Dessau highlights the cultural foundations on
the basis of similarities and differences between the Central European (German) and
the Nordic (Finnish and Swedish) views. The conclusion is that the doctrines on
sources of law are different in different legal cultures and that there is no ‘correct’ or
global way to define the doctrine on sources of law.

How about other disciplines then? At present it is no longer a question of

legal philosophy, socio-legal studies and legal history. The connections
have changed since comparative law itself has become a more open and
polyphonic field of study. And yet, comparative law is currently linked
to legal theory in many ways because transnational law, legal pluralism
and the study of legal cultures questions and criticises the Western theory
of law and legal positivism in particular. In particular, Professor William
Twining from England has tried to construct a new global but legal-
culturally sensitive legal theory.28
Another good example of comparative law which focuses on the
twenty-first century is that by Professor Werner Menski whose massive
work Comparative Law in a Global Context criticises various theories in
legal positivism (especially those of Kelsen and Hart) and develops the
theory of legal pluralism.29 Menski’s theory is closely connected to and
influenced by legal anthropology, from the research tradition of which
Menski reinterprets both legal theory and comparative law. When
Menski views the classics of Western legal theory critically, he also
himself creates—just like Twining —a novel global legal theory that is
not based on the fundamental ideas of Western law. The basic
observation of Menski’s legal theory of comparative legal anthropology
is clear: he brings out the connection that exists between the culture-
specific nature of legal theory, where the implicit focus is on the West,
and the Western concept of law.
Pluralistic legal theory was originally introduced to the field of comparative law
through legal anthropology. It was filtered by the global legal theory that had been
influenced by comparative law and developed by the above-mentioned Twining as
well as Brian Z Tamanaha from the United States.30 An example of classical legal
pluralism (in the same State/region rules can be applied that are overlapping or
parallel) is the Marriage Law in West Sumatra. Marriage is institutionalised
simultaneously in three different systems, which are, as well as the formal system of

59
the State, the adat law (an ethnically and locally differentiated Indonesian customary
law) and the Islamic law. All of these admit different views on contracting a
marriage, its conditions, legal effects and dissolution. In practice, however, they are
difficult to tell apart. The large size of Indonesia and its lack of unity enable the
existence of several variations. To be able to compare them with each other, it is
necessary to build a conceptual framework (legal-pluralistic theory) that can be
applied simultaneously in all these different forms of marriage: they are not mutually
exclusive. The point here is that these kinds of pluralist situations have become more
commonplace in Western legal culture as well. Thus, it would be too narrow and
simplistic to regard legal pluralism as a condition which concerns ‘other’ law only.

Comparative law can also be connected to the legal theory of natural law
where an attempt is made to perceive the content of common concepts,
such as ‘right’ or ‘justice’. According to natural law thinking, there is a
system of legal rules that is based on the natural state of human beings. It
has been considered that such regulations of natural law (Latin ius
naturalis) are in force despite States’ systems of statutory law.
According to the rational natural law theory, it is possible to discover
what is ‘naturally right’, ie in accordance with natural law, when the
actual life of a human being is combined with sensible behaviour. From
this we have to detach the view presented in private international law,
according to which the court should select from among the applicable
laws the law whose application results in the best material end-result.
From the point of view of natural law, comparative law might be
considered to have offered a medium for finding the content of natural
law that is independent of positive legal systems by studying different
legal solutions that have been adopted into different legal systems.
However, in practice natural law theories have not relied on comparative
points, but rather they have relied on philosophical arguments and points.
Notwithstanding, by means of comparison it can be observed which legal
solutions in the laws of different nations are uniform and long-lived and
which, on the other hand, are liable to change and are variable from
nation to nation. Only in the first-mentioned case can the legal solution
in question be in the sphere of natural law. The idea is somewhat similar
to one that was discussed above in connection with finding customary
international law.
The position of the theory of natural law has for a long time been
rather weak, but lately it has again aroused interest, for example in
connection with international human rights. In the Western view human
rights apply to all people equally despite cultural differences. In some
contexts the nature of international human rights is described as a

60
positivised natural law. Several Asian and African States have opposed
(in some respects) the vehemently individualistic features of Western
human rights thinking. Opposite views are often condensed into a
reluctant theoretical setting where freedom and well-being are
contrasted. These difficulties cannot be denied but at the same time one
has to conceive that in essence they are of a political nature and not of a
legal nature. And one has to bear in mind that there are of course various
basic types of natural law: Jewish, Christian and Islamic law each have
their own versions of natural law.

E. Linguistic and Economic Dimensions—Comparative Law

Reloaded

The methodological and disciplinary openness of comparative law as

well as its flexibility is best demonstrated by the fact that in comparison
several different fields of law, depending on the research goals and also
different approaches used, are combined in a natural way. Yet this is not
necessarily an undesirable eclecticism but rather methodological
pluralism. Comparative law can be practised with many different
emphases from legal to theoretical and from theoretical to legal-
economic or from historical to sociological. The fact that there is no
single method or single objective is ‘a salutary phenomenon, since the
comparison of laws has been constantly present, in varying forms, as an
affirmation of the willingness of lawyers to learn from the experience of
others’ as Glenn says.31 Good examples of the readiness to connect to
other disciplines, which is in-built in comparative law, are relatively
recent fields of study such as comparative legal linguistics and
comparative law and economics (or comparative law and finance).
The legal-linguistic dimensions are based on the legal-theoretical
observation concerning the special relation between language and law. In
Western culture, as distinct from many Aboriginal or African traditional
cultures, written language is an inherent constituent of law. In short, the
relation between language and law is of a fundamental character. Law is
power dressed in words and generally used by a State. When legal
languages are studied comparatively the comparison takes place
somewhere between comparative law and the linguistic study of legal
language. In comparative legal linguistics, one of the great pioneers is
Professor Heikki Mattila, who studied legal language as a language for
special professional purposes. His approach (legal linguistics or
jurilinguistique in French) is combined with comparative law and

61
comparative legal history. The study of foreign legal languages becomes
possible owing to the fact that legal languages are not studied only from
the linguistic point of view but also as part of their legal and legal-
historical contexts.32 This is often essential because, for example, in
legal Chinese the terminology is based on Germanic models and lately
also on Anglo-American models: the influence is visible as well in the
concepts and terms of the legal language. Now to understand what is
essentially a hybrid legal language one needs skills not only in modern
Chinese (Pǔtōnghuà, but also in legal German and legal English.
The comparative legal linguist can compare the development,
structure or vocabulary of different legal languages. This interesting and
challenging book has awakened great interest among both comparatists
and scholars of legal language. The innovative idea of Mattila was to
place legal language against its legal-historical and comparative law
background because the concepts of legal language hold on to earlier
legal-historical layers and interaction with other systems and legal
languages.
For example, in present-day Spanish administrative and legal language, the influence
of the Arabic concept alcalde, which corresponds to mayor, is seen. The concept was
introduced into Spanish by the expression qâdi, which refers to a Muslim judge and
the definite form of which is al-qâdi. During the Muslim period (711–1492)
Christian inhabitants who spoke different varieties of local Spanish started to refer to
the administrative judge with a Spanish word alcalde (or alcaide in Portuguese). It is
of historical interest that owing to its colonial history, in the Southern States of the
USA the expression alcalde was used to refer to mayor up to the nineteenth century.
The same word, as an empty legal-linguistic vessel, has filled different boots in its
travels through the legal history.

Economic dimensions too have been included in comparison from as

early as the 1990s. Comparative legal economics has from the late-1990s
been one of the fields of research that has caused most discussion and
has been most frequently referred to. It has combined economics and
comparative law in an interesting but also somewhat problematic way.
Among the best-known topics in the twenty-first century has been the
legal origin theory by means of which a clear connection was created
between economic development and macro-comparative law. The theme
is still topical and debates on it continue.
The legal origin theory was actually born around the middle of the
1990s, and especially at the end of the decade from the articles published
by Rafaela La Porta and Andrei Schleifer among some others. In these

62
studies it was claimed on the basis of empirical material that in States
which belong in the sphere of common law that is of English origin,
markets and business are regulated in a different way from that of
Continental European and Nordic law, ie civil law.33 Legal and
institutional differences seem to be reflected in the economic
productivity and activity of these countries. Flexible capital and credit
markets are arguably typical in common law countries, and they
developed more quickly than in the countries belonging to the
Continental European legal culture.
These differences appeared to be a reflection of the fact that legal
systems differed from each other in their attitude to property and contract
law and to the role of the government in the regulation of the economy.
One of the basic ideas was that the common law approach produced (so
ran the argument) a more flexible labour market because within its
sphere labour market relations were subject to less, more flexible
regulation than was the case in civil law systems.
For classical (ie carried out by jurists) comparative law, the observations of the big
differences in economic efficiency came as an unpleasant surprise because in
comparative law the opinion has long been that, while common law and Continental
European law differ from each other in respect of legal technicality, they were
considered to operate functionally alike. In comparative law, the legal origins theory
has not been approved because it is seen to be blind to legal factors that are
superficially different but in reality perform the same functions. The analyses of the
origin of law theory have with justification been blamed for being short-sighted with
regard to factors that are outside formal law and to legal-cultural factors. A general
picture of the theory and the criticism surrounding it is given by the extensive
compilation Legal Origin Theory; the work consists of key articles that support and
criticise the theory.34

III. COMPARISON AND FIELDS OF LAW

Above, comparative law has been described by dividing it up by means
of the methodological approach taken. Legal studies can also be sorted
out more traditionally by applying divisions according to the field of law,
which means that we can talk about, say, comparative public law or
comparative civil law. In a more specific division we can, for example,
divide public law further into administrative law and constitutional law.
Moreover, constitutional law as a field of study can be further divided
into the study of institutions (eg division of powers between legislature

63
and government), the study of public finances (eg budgetary power and
watchdog power) and the study of fundamental rights. Along similar
lines we can talk about comparative civil law whose special fields are,
for example, comparative family law, comparative property law or
comparative tort law.
Yet, when the place of comparative law as part of legal study is
outlined, the division according to fields of law does not have a decisive
significance because one can study comparatively private as well as
public law, statutory law or customary law. On the other hand, the field
of law to which the practically oriented comparative law is attached has
in some cases a clear significance for comparison and methods applied.
Here, international law as well as private international law and public
international law are discussed.

A. Private International Law

Private law refers to the part of the national legal system that mainly
regulates the cross-border interrelations of individuals. When private law
connects with private international law it is typically a question of a
situation where the decision is made on which court is competent to
examine an international legal relationship. Another possible issue is to
decide which State’s internal law should be applied in the case at hand.
The traditional field of private international law is concerned with legal
rules like this. Such typical rules are, for example, lex fori, which refers
to the law of the country in which the action is brought, whereas lex
causae refers to the law governing the substance of the case at hand.
Now, if the connecting factor results in a situation where the law of a
foreign country is applied, the court has to find out the actual content of
the foreign law to make a decision on the case.
The object of finding the materially best possible solution presupposes
comparison between alternatives offered by different legislations. Ernst
Rabel, a classic scholar of comparative law and private international law,
stated in his famous work The Conflict of Laws that the knowledge-
process in the application of private international law is necessarily of a
comparative nature.35 In other words, private international law appears
to have close contact with comparative law. Notwithstanding, the field of
private international law is more restricted: actual comparative law can at
its widest cover all the States of the world, seldom deals with a concrete
case and the researcher does not have the burden of having to solve the
case.

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From the point of view of comparative law, it is important to observe that private
international law does not mean the same thing everywhere, not even within Europe.
For example, in the Nordic Countries it means broadly a field of law and also a
specific approach to law. However, for example in Germany, it means more narrowly
only those legal rules which connect different legal systems in a situation of norm-
collision. These kinds of rules are needed when the legal relationship between private
persons is international, as it is, for example, in cases where the parties live in
different countries. The basic pluralist challenge is that the law of more States than
one is applicable in the situation at hand. In English-language literature this is often
referred to by the expression conflict of laws, which appears to be a more restricted
expression than private international law. Which law is applied in a case is usually
solved by means of the models for decision that are included in the connecting rules
(eg lex causae and lex fori). On the other hand, there are many other States where
private international law has a more extensive interpretation, so that it also covers the
international jurisdiction of courts as well as the recognition and enforcement of
foreign judgments.

Private international law is—as explained above—owing to its very starting points
contrary to legal pluralism, which at present is among the main ideas of comparative
law. Whereas the legal pluralist approves of the overlapping plurality of the legal
rules that are in use in the same area, private international law attempts to make a
justified choice among different regulations and in this way to delete the overlapping
plurality. It comes as no surprise then, that the expression choice of law that in the
English language is often used for private international law sums up the idea: a
certain law has to be chosen. In comparative law such an overarching normative goal
as this simply does not exist, ie comparative law is not only aware of legal pluralism,
but in many cases it also seeks to embrace legal diversity.

By means of private international law it is possible to solve legal

problems concerning the applicable law, international jurisdiction of the
courts and the recognition and application of foreign court decisions.
Problems are caused by the fact that the case has legal connections with
several legal systems and practices. Typically the case can involve, for
example, spouses with different nationalities requesting divorce. In such
cases it has to be decided which court has the jurisdiction to grant the
divorce and which country’s law the court must apply in the case. If the
legal system involved in the case differs radically from one’s own legal
culture, getting reliable legal information might prove to be very
challenging.
Although comparative law and private international law are different, both fields of
law are demanding. The amount of information that has to be gathered on the foreign
law can sometimes be considerable, as, for example, in a case decided by the Finnish
Supreme Court in 2011.36 In the case, which related to the alimony to be paid after

65
divorce, a great amount of information on Swiss law was gathered. The case
concerned the secondary claim for alimony that was presented by the spouse, who
remained in Switzerland, to the spouse, who had moved to [Link] entitlement
of a spouse to have alimony was in this case solved according to the Swiss law.
Knowledge of the foreign law was in the first place gathered by the district court,
which had requested executive assistance on Swiss law and legal literature. In
addition, both parties presented to the district court statements by Swiss lawyers
about Swiss law and legal practice concerning the issue.

On closer inspection, the relationship between private international law

and comparative law is somewhat uneasy. From the point of view of
private international law, comparative law is needed as a help-tool, for
example in finding out if any norm of a foreign law or its application is
against the ordre public (application would clearly be against the
principles of the legal system of the foreign country in question), in
which case auxiliary comparison is getting close to actual comparative
law. Differences are not necessarily drastic and yet they do exist.
In other words, private international law clearly intersects with
comparative law, but as fields of study and research they do not merge
much at all. There is one crucial difference. The rules of private
international law are based on each country’s own law, legal practice and
doctrinal study of law. There is a certain false notion here that is caused
by the word international because the law in question is the national law
(internal and normative viewpoint): it may not be the law of the country
in which the case is decided, but it is a law of a country (ie domestic law
in one sense or another). It is noteworthy, though, that national rules
have been harmonised by means of multilateral agreements and shared
regulations. The aim is to avoid problematic situations where the legal
organs of two different States argue over competence, with each country
considering themselves to have competent jurisdiction and giving in the
same case—in the worst case—decisions that are different. The idealistic
aim is that a domestic court should know foreign law as well as the
foreign system’s own legal organs do (so-called loyal or authentic
application) This would, however, require a far-reaching study on
foreign law.
Now, private international law is not by nature binding on States like
public international law. It is the State’s internal law that is applied in
such private law circumstances which have international contact points.
Private international law is a practically oriented field of law that,
however, has something in common with actual comparative law owing
to the non-national legal sources that are characteristic of it and its

66
interest in cross-border problem-solving. The constructive significance
of comparison has in recent years been seen in contexts where different
States, by concluding agreements, have standardised their private
international law regulation. It is somewhat unfortunate that in the
curricula of law at universities, private international law is often taught
in the same contexts as comparative law: even though they partially
overlap the knowledge-interests differ drastically.
As has become clear above, contemporary methodologically pluralist
comparative law ought to be separated from private international law: it
is practised not only in different fields of law but also in several different
ways, which in many cases have nothing to do with private international
law. The old academic umbilical cord between private international law
and comparative law has got thinner but is not completely cut. Be that as
it may, the most recent legal-cultural and legal-pluralistic emphases
continue to erode the connection between private international law and
comparative law: for the comparative law of the twenty-first century the
very theoretical basis of comparison is something (combining internal
and external, pluralist) that private international law regards as a problem
that needs to be solved: the modern comparatist embraces pluralism and
hybridity whereas the private international law scholar hopes to make
them disappear. However, one sometimes sees genuine comparison done
by courts of law; this is rare in civil law whereas it seems more typical in
the common law.

There is an example from England: The National Blood Case.37 It is a kind of model
case of versatile comparison and of the use of non-national legal literature in
particular. In the solution reference is made to writers from several systems: Clark,
Dahl (Denmark); Griffith, Henderson (USA); Hodges, Howells, von Marschall
(Germany); Newdick, Rolland (Germany); Stapleton, Stoppa (Italy); Taschner, von
Westphalen (Germany) and Whittaker (UK). The comparative survey covers Austria,
Belgium, Denmark, France, Germany, the Netherlands, Portugal, Sweden and the
United States, in such a way that there is reference not only to legal literature but also
to legal practice. In addition, the court (Queen’s Bench, a department of the High
Court of Justice) is not content with studying only one legal language, ie English, but
to support the interpretation of the directive applied, investigates also versions in
other languages and justifies this by saying that ‘some guidance can be obtained from
other languages in which the directive was published, all of which are of equal
weight’.

B. Public International Law

67
In legal systematics, public international law, or in other words the legal
rules that determine the legal relationships of international legal entities
(States and international organisations in particular), is separated from
private international law. Typical instruments of private international law
are conventions (international treaties and agreements) and uniform laws
prepared jointly by several States or international organisations). When
comparative law is related to public international law, the question is, for
example, about Article 38(1) of the Statute of the International Court of
Justice (see chapter five, section V.D) operating within the framework of
the United Nations and the provisions of its Charter, which regulates
which legal sources the Court shall refer to when it solves disputes
presented to the court. Sometimes it is a question of general international
legal principles existing in all legal systems and acknowledged by States
in their domestic law; however, they can also be applied on occasions
where conventions or customary law do not offer enough guidance on
which the judgment of the International Court could be based.
The International Court of Justice has since the end of the Second
World War considered that international courts can impose obligations
not only on States and international organisations but also on individuals.
Human rights in particular have later on been given a central position as
well as a significant role in international law. In this connection the
system of the Council of Europe, including a surveillance system that is
more efficient than the UN system, has assumed a significant role.
Differing from the judgments of the Human Rights Commission of the
UN, the resolutions made within the framework of the European
Convention on Human Rights are also legally binding on the contracting
States (obligation to amend legislation).
The surveillance of the European Human Rights Convention is based
on the operations of the European Human Rights Court. However, the
Court does not alter the original domestic decision; it is not a Court of
Appeal as such. Its judgment concerns the State, which according to the
Court has not carried out in its own legal system the obligations set by
the Convention. The Court’s case law can in certain cases have great
significance that exceeds the wording of the Convention itself.
The human rights of the European Convention on Human Rights can
be considered to form (among the Member States of the EU, all of whom
have joined the Convention) a harmonised human and basic rights
standard whose impact is within narrow bounds based on the
surveillance organisation connected to it. Human rights included in the
Convention have been altered in the interpretation practice because the

68
Court interprets the Convention dynamically and regards the Convention
as a dynamic instrument—it changes and lives in accordance with the
interpretation practice of the Court. Crucially, interpretation is therefore
not confined by the wording of the Convention. This in particular offers
certain possibilities for comparative law viewpoints.
Ultimately the contracting State can be obliged to change its
legislation and also possibly to pay compensation to the injured party for
the damage caused by the violation of the Convention obligation. Yet,
the challenge faced by the system is the immense backlog of cases,
which has made the system extremely slow. Another problem is that
some Member States (eg Turkey, Russia), which have ratified the
Convention but whose legal cultures are not capable of properly
fulfilling or even promoting the obligations set for them by the
Convention, do not appear to be taking the judgements of the Human
Rights Court very seriously.
The Human Rights Court has for a considerable time made use of
integrative comparative law as a method for making comparisons.
Together with the EU Court, both courts have introduced elements from
other legal systems into their national systems. Albeit, this has not meant
significant growth of the actual comparative legal approach, but instead
has increased exploitation of different comparative points of view (so
called human rights comparativism).38 In short: the significance of
practical comparative law has increased because of European human
rights.
It is impossible to present all the dimensions relating to public international law in
such a short presentation as this, but it is essential to note the variety and versatility
of these international dimensions. As an example we can take up the fact that a
dimension of public international law can also relate to administrative law.
Administrative law in its widest sense refers to the part of the legal system that
concerns public administration. The biggest part of administrative law deals with the
operation and organisation of the public administrative apparatus and connections
relating to administrative law. Comparison has a special relationship with
international administrative law: the knowledge capacity gained by means of
comparative law is helpful when there is a question of evaluating the validity of the
legal position of foreign administrative decisions or organisation of international
legal safeguards in administrative matters. International administrative law is
relevant also when the validity and enforceability of the administrative decisions
made by international organisations arises in the context of the national
administrative law.

Skills in comparative law can be useful in domestic administrative courts too when
procedural demands that might be required by the EU Court are evaluated upon the

69
application of EU law. Comparative law makes it possible to understand
foreign/unknown concepts and different legal institutions as part of their original
legal system, and this increases the knowledge base of international administrative
law and decreases the potential for false interpretations. At present the most
advanced sector of international administrative law is European administrative law
although it fits rather poorly into the framework defined by actual international law:
EU law differs in many ways from traditional international law and this applies to the
field of administrative law as well. What is clear though, is that comparative
arguments are made use of there as well, but that operations are supranational rather
than international.

Finally, when it comes to international law it is possible that today’s

pluralism also causes fragmentation. There are so many bodies of law
and various international actors from governments to various non-
governmental organisations. Comparative law research can, however,
help in building new common ground not only by showing whether or
not there is a common approach among States but also by providing a
common methodology for international adjudication.

IV. DIFFICULTY OF DEMARCATION

It is worth noting that the differences between branches of legal research
are not clear-cut. In most cases we have to operate around the borders of
different orientations. Especially when it comes to the comparative study
of law, there is the evident phenomenon of overlapping approaches and
the difficulty of drawing distinct demarcation lines. The first professor of
comparative law at the University of Cambridge, Harold C Cutteridge
(1876–1953), has formulated it well: ‘The comparative method lends
itself to the study of any branch of legal learning’.39 This is,
undoubtedly, one of the key factors for why the comparative approach
has become more and more popular in the 2000s. The flexibility of
comparative methodology may be an asset in today’s transnational legal
world.
For example, a typical legal problem concerning the wording in a
statutory law, which is a paradigmatic task of the doctrinal approach, can
also contain some comparative aspects if it concerns a factor that is
familiar (a roughly similar type of question) not only within the domestic
legal system but also in other legal systems. This would not, however, be
a question of actual comparative law research but—at best—of the
auxiliary usage of comparative elements in research that is as to its

70
nature doctrinal and deals with positive law. In a similar fashion, often,
the comparatist exploits sociological, economic, linguistic and historical
elements as part of the study. This does not transform the comparatist
into a quasi-sociologist, quasi-anthropologist or quasi-linguist—it is a
question of learning and benefitting and drawing inspiration from other
disciplines. The key words, in an up-to-date common sense meaning, are
methodological openness and the inquisitive state of mind of the
comparatist.
The instability of the differences applies not only to the branches of
research but also to the fields of law. Crucial is the observation that
comparative law cannot be limited to formal law; one must often look
beyond the statutory law or leading cases. Earlier in this chapter
Ehrlich’s concept of living law was referred to, and it seems to
encapsulate much of the need to know also about the various contexts of
law. Also the reality of law has to be investigated, ie what really happens
in actual practice. For example, a comparatist studying British
constitutional law will rather quickly notice that sources of law are not
limited to statute law or rules and principles created by leading cases, but
that legal sources are to be found also from the established constitutional
conventions. Just as quickly the researcher of public international law
would notice that it is impossible for them to limit their legal sources to
international treaty texts only, since customary international law also has
to be included because it too has a formally acknowledged position. And
when acquaintance is being made with customary international law, it is
essential to know what kind of provisions or precedents States have
recognised as binding law (Latin opinio iuris). Moreover, in EU law
national, international and supranational elements are interlocked with
each other, and comparative aspects function as a kind of glue in
between the various legal ingredients.
And, it is not only a question of aiming at the empirical level of law
but also of the fact that positive law in itself has changed, particularly in
Europe. The structure of law has been altered through Europeanisation,
and the traditional hierarchical relationships between fields of law, and
legal systems that have been pruned to fit into their different national
compartments are now more flexible than before. The functions of
different legal systems can be described as legal tapestries. Law is seen
as containing threads that have different contact points and surfaces in a
kaleidoscopic manner. The knots formed in the net are connected with
each other through it and are interdependent via several threads.
Comparative law is in such cases one of the important tools by means of

71
which one can orientate oneself in the legal tapestry that crosses national
borders. In other words, comparative law is often a meta-discipline in the
doctrinal study of law or simply a practical instrument in a legally
diverse world.
In spite of the change in legal cultures and pluralism, something permanent can be
detected at least within legal disciplines. According to the theory developed by
Finnish legal theoretician Hannu Tolonen (1945–2005), ‘Law is a kaleidoscope that
can be outlined in almost countless ways’.40 Legal disciplines too outline law from
different points of view. In Continental European legal research the doctrinal study of
law has for centuries dominated jurisprudence and the way that professionals study
and approach law and legal questions. But, the doctrinal approach has never been the
only way to conceive law jurisprudentially.

Completely different perspectives are available today, and there is even

methodological, not only legal, pluralism. From the point of view of comparative law
it is worth referring once again to the idea of Grundlagenfächer that is used in
German jurisprudence. With this expression reference is made to the essential
companions of the doctrinal study of law, the kind of meta-disciplines of legal study,
ie legal history, comparative law and the general theory of law. Dutch jurists refer to
meta-disciplines as grondslagen van de rechtwetenschap or metajuridica—they refer
to the non-normative study of law carried out by jurists. Comparative law finds its
academic home in this metajuridica but also within the fields of law, which may
benefit from comparative points of view or from which inspiration on the basis of
comparisons may be drawn. It seems justified to draw a distinction according to
which comparative law is part of metajuridica as Belgian Frits Gorlé points out, even
though comparative law is less abstract than more theoretical disciplines of legal
theory and the philosophy of law.41

It is important to understand that meta-disciplines have a close

connection with the normative study of law because it is their task to
open up the legal contexts or to place law in time and space not only in
the narrowly understood internal normative sphere of a particular legal
system. In this respect comparative law has an important legal-cultural
basic role that is related to the identity of the jurists, which Professor
Kjell-Åke Modéer from Lund formulates as follows: ‘The identity of
lawyers is, namely, bound with the presentations, which lawyers create
in time and space with the help of their legal knowledge structures’.42
Basically, all meta-disciplines of law, naturally including comparative
law, are legal knowledge structures referred to by Modéer—this is where
their real contribution to late-modern legal study lies. Comparative law is
part of the twenty-first-century legal understanding, not simply an
eccentric academic field of study that is only meant for a tiny elite, a

72
little armour-bearer in the judge’s quest for choice of law (in case of
private international law) in the application of foreign law or the
inexhaustible store of ideas for the legislator. Of course, it can be all of
these things, too, but it is crucial to underline that the genuine and lasting
value of comparative law lies elsewhere: it opens up new legal horizons
and, thus, expands one’s vision of law, one’s own law included. In a
more philosophical language, the horizon of one’s own law and that of
the foreign law are fused together creating new insights into law in
general.

1 HLA Hart, The Concept of Law (Oxford, Oxford University Press, 1961) 89.
Basically Hart argued that we cannot truly understand the workings of a legal system
from the external point of view. According to Hart understanding of normative
meanings requires an internal aspect.
2 ‘Slike henvisninger kan deles tjene som illustrasjonsmateriele og dels som
argumenter for at spørsmålene bør løses likedan hos oss’, T Eckhoff, Retskildelære, 5th
edn (Oslo, Universitetsforlaget, 2010) 284.
3 ‘I en afhandling med andet primært sigte bør man kun have et afsnit om fremmed
ret, hvis man har set, at der i udlandet kan hentes viden, der befrugter Afhandlingen’, O
Lando,’ Komparativ ret i juridiske afhandlingar’ in Juridisk forskning (Copenhagen,
Jurist- og Ø konomforbundets Forlag, 2002) 83–95, 83.
4 The idea of a simulated internal point of view is fittingly described thus: ‘De
onderzoeker moet goed beseffen dat hij de logica van de andere rechtsorde, zoals die
door de participanten daaraan zelf begrepen wordt, moet blootleggen’, M Adams, ‘Wat
de rechtsvergelijking vermag’ (2011) 60 Ars Aequi 192, 197.
5 See A Watson, Legal Transplants: An Approach to Comparative Law, 2nd edn
(Athens GA, University Georgia Press, 1993).
6 See A Jyränki, Lakien laki (Helsinki, Lakimiesliiton kustannus, 1989).
7 (1989) 37 American Journal of Comparative Law 1.
8 M Siems, Comparative Law (Cambridge, Cambridge University Press, 2014) 144.
9 See E Ehrlich, Grundlegung der Soziologie des Rechts (Munich, Duncker, 1913).
10 Original quotations from the very beginning of the book underline studying ‘nicht
Worten handelt, sondern Tatsachen’ and serving the pure knowledge: ‘nicht praktischen
Zwecken dienen will, sondern reiner Erkenntnis’, ibid 1.
11 R Michaels, ‘Comparative Law by Numbers?’ (2009) 57 American Journal of
Comparative Law 765, 792.
12 Siems, Comparative Law (n 8) 186.
13 D Nelken, Comparative Sociology of Law (2012)
([Link]/2012/03/05/comparative-sociology-of-law/).
14 See D Nelken and J Feest (eds), Adapting Legal Cultures (Oxford, Hart
Publishing, 2001).
15 For a concise view of Friedman and comparative law, see eg T Ginsburg,
‘Lawrence M. Friedman’s Comparative Law’ in RW Gordon and MJ Horwitz (eds),

73
Law, Society and History: Themes in the Legal Sociology and Legal History of
Lawrence M. Friedman (Cambridge, Cambridge University Press, 2011) 52–64.
16 DS Clark, ‘Preface’ in DS Clark (ed), Comparative Law and Society (Cheltenham,
Edward Elgar, 2012) xiv–xvi, xiv.
17 A Riles, ‘Comparative Law and Socio-Legal Studies’ in M Reimann and R
Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford, Oxford
University Press, 2006) 775–813, 801.
18 J Bell, ‘Legal Research and Comparative Law’ in M Van Hoecke (ed),
Methodologies of Legal Research (Oxford, Hart Publishing, 2011) 155–76, 170.
19 G Sartor, ‘Understanding and Applying Legal Concepts’ in J Hage and D von der
Pfordten (eds), Concepts in Law (Dordrecht, Springer Verlag, 2009) 35–54, 53.
20 D von der Pfordten, ‘About Concepts in Law’ in Concepts in Law (ibid) 17–34,
33.
21 See L Lévy-Bruhl, La mentalité primitive (Paris, Alcan, 1922).
22 O Brusiin, Zum Ehescheidungsproblem (Helsinki, Akademische Buchhandlung,
1959).
23 J Gordley, Philosophical Origins of Modern Contract Method (Oxford, Clarendon
Press, 1993).
24 J Gordley, Foundations of Private Law: Property, Tort, Contract, Unjust
Enrichment (Oxford, Oxford University Press, 2007).
25 W Ewald, ‘Comparative Jurisprudence (I): What Was it Like to Try a Rat?’ (1995)
143 University of Pennsylvania Law Review 1889.
26 See J Husa and M Van Hoecke (eds), Objectivity in Law and Legal Reasoning
(Oxford, Hart Publishing, 2013).
27 See C Dessau, Nationale Aspekte einer transnationalen Disziplin (Berlin, Duncker
& Humblot, 2008).
28 See eg W Twining, General Jurisprudence: Understanding Law from a Global
Perspective (Cambridge, Cambridge University Press, 2009). This book brings together
his earlier work in the field of comparative legal theory, law and development and legal
pluralism.
29 W Menski, Comparative Law in a Global Context: The Legal Systems of Asia and
Africa (Cambridge, Cambridge University Press, 2006).
30 See eg BZ Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to
Global’ (2007) 30 Sydney Law Review 375.
31 HP Glenn, ‘Against Method?’ in M Adams and D Heirbaut (eds), The Method and
Culture of Comparative Law (Oxford, Hart Publishing, 2014) 177–88, 188.
32 See HES Mattila, Comparative Legal Linguistics: Language of Law, Latin and
Modern Lingua Francas, 2nd edn (Farnham, Ashgate, 2013).
33 See EL Glaeser and A Schleifer, ‘Legal Origins’ (2002) 117 Quarterly Journal of
Economics 1193; and R La Porta, F Lopez-de-Silanes and A Schleifer, ‘The Economic
Consequences of Legal Origins’ (2008) 46 Journal of Economic Literature 285.
34 See S Deakin and K Pistor (eds), Legal Origin Theory (Cheltenham, Edward
Elgar, 2012).
35 See E Rabel, The Conflict of Laws: A Comparative Study, vol 1 (Michigan,
University of Michigan Law School, 1945) ch 1.

74
36 The Finnish Supreme Court decided (KKO: 2011:97) to apply Swiss law by vote
(3-2).
37 A and others v National Blood Authority [2001] 3 All ER 289.
38 See eg E Örücü (ed), Judicial Comparativism in Human Rights Cases (London,
British Institute of International and Comparative Law, 2003).
39 H Gutteridge, ‘The Value of Comparative Law’ (1931) Journal of the Society of
Public Teachers of Law 27–31, 28.
40 H Tolonen, ‘Oikeus ja sen tulkinnat’ in J Häyhä (ed), Minun metodini (Helsinki,
WSOY, 1997) 279–97, 279.
41 F Gorlé et al, Handboek recthsvergelijking (Mechelen, Wolters Kluwer, 2007)
(‘Rechtsvergelijking is veeleer een deel van de metajuridica’ and it is ‘veel minder
abstract’, 76).
42 ‘Juristernas identiteter är nämligen förbundna med de föreställningar som
juristerna skapar om tid och rum med hjälp av sina rättsliga kunskapsstrukturer’, KÅ
Modéer,’ Östersjöområdets rättsliga kartor’ in J Kekkonen (ed), Norden, rätten, historia
(Helsinki, Suomalainen lakimiesyhdistys, 2004) 193–205.

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5

Why Compare?

THE COMPARISON OF laws is a discipline where methodological and

theoretical pluralism prevails. There are different competing views of
what comparative law is and what it is not. In spite of the differences all
views are connected by one common feature. Comparative law, like any
form of legal research, is normally regarded as an activity that always
has an aim. Comparison is not a hobby that the jurist elite can busy
themselves with along with (more serious) the doctrinal study of law.
Undoubtedly, comparative law is time-consuming and in many respects
is a rather challenging way to engage in legal research. But, from the
history of comparative law we know that comparison has always had an
aim and purpose. This is still the case today.
For example, the learned men in the Greek Πόλις of Antiquity were
interested in the laws of other city States. For ancient Greeks, the human-
made law (νόμος) of the city State differed from the law of nature
(φύσις). Greeks also applied the norms of other city States to their own
cities if they considered them applicable. The ancient Romans were
profoundly aware of the fact that their law, the Roman law, was their
own (ius civile), but they understood that law that concerned all people
(ius gentium) applied also to them. Later this Roman heritage
transformed and developed into the medieval ius commune.
The term ius commune (‘common law’ in Latin, German Gemeines Recht), which is
frequently used in comparative law and legal history, refers to the entity that was
born in the Middle Ages as a synthetic combination of reinterpreted Roman law (in
particular corpus iuris civilis), Catholic canon law and the legal study practised in
universities. Hence, in German it is also called römisch-kanonische Recht, ie Roman-
Canonical Law. Now, the Middle Ages is not an accurate expression, but here it
refers to the period between 400–1400 AD. The Middle Ages were named at the end

76
of the fifteenth century and the beginning of the sixteenth century by humanists for
whom this period represented a period of intellectual regression. In legal history the
period is not as ‘dark’ as its reputation. Roman law was born in Antiquity to begin
with, ie in ancient history, which refers roughly to the period between 2500 BC and
600 AD. From the point of view of legal history, the periods cannot be distinctly
separated from one another because regional differences were vast. In any case, ius
commune used by comparatists refers to this later Roman law tradition. More
importantly, ius commune and the practice of comparing laws with the Continental
European legal sphere are intertwined.

I. STARTING POINTS—CREATING ADDED VALUE

Comparative law attempts, in accordance with what has been said earlier,
to disengage from the limits of national legal systems (as well as
international law, if needs be) that restrict the acquisition of the
knowledge of law. Often only when legal systems are examined from the
outside, is it possible to see the distinctive historical features, for
instance, of the national division between the fields of law, the relativity
of legal concepts and the embedded political and social nature of
different legal institutions. Law is part and parcel of the society’s cultural
entirety —law is the law of human communities. Or, as the Latin phrase
has it, ubi societas, ibi ius: where there is a society there is law. And, this
leads inevitably to an unsurprising revelation: human communities are
not similar all over the world, thus the law applied to human beings and
their social constructions (eg marriage, contract, tort etc) cannot be the
same everywhere.
Solutions of one’s own legal system that seem natural and self-evident
can appear in a new light when compared to solutions in other systems;
then it is easier to assume a critical view of their self-evident truth and to
conceive their weaknesses and strengths more prudently. Also the
foreign influence on one’s own legal system becomes visible and can
therefore be faced by conscious and critical evaluation. Comparison
often works as a legal cultural eye-opener, ie it demonstrates to the
comparatist something crucial about law in a surprising way.
The non-national nature of comparative law is considered to facilitate
the understanding of foreign cultures and consequently to both promote
and facilitate international cooperation. On the other hand, when foreign
law is studied, it is very difficult to avoid making unconscious
comparisons if for no other reason than that explaining in your own
language the content of a foreign law in an understandable form requires

77
implicit comparison. Simply, the translation of foreign concepts and
terms requires comparative knowledge about law.
Above all it is a question of how consciously the comparative element
is included in the study of foreign law. It is fundamental to comparative
law that the comparative element is consciously included in the research
design and that the comparatist openly tells the readers what they have
done in the study and how they have done it. Covering up research
approaches and emphases or upholding a hidden agenda is not a decent
research practice in comparative law. Open argumentation belongs to
good research practice because it increases the justifiability of the
comparatist’s reasoning. Correspondingly, clandestineness and hiding
one’s own research decisions and emphases is bound to decrease their
credibility and significance. There are also ethical dimensions of
research connected with credibility and significance (more on this in
chapter six, section XIII).
Among the legal disciplines, it is expressly comparative law that
entertains the comparative element (Latin comparatio = comparison),
and merely getting acquainted with foreign law or international law is
not equal to being genuinely engaged in comparative law. Yet, learning
of foreign legal systems and legal cultures is an essential preliminary
phase for actual comparative law. As a preliminary phase it is a natural
part of the comparative process that always consists of several steps. On
the other hand, the differences between describing foreign law and
actually comparing it with other law are not overtly dramatic.
In general, the comparatists assume that comparative law is expressly
comparing and that descriptive knowledge of foreign law (German
Auslandsrechtskunde) is a constitutive part of the actual comparative
process. So, comparison should produce knowledge with value-added,
not only valid, descriptions. Dutch comparative methodologist Maurice
Adams compresses it into an essential question: ‘What actually is the
added value of such comparative exercise?’ 1 That is: comparative law
should produce some value-added, and by means of comparison it should
be possible to surpass the trap of the mere organised description of
foreign law. Ideally, the process advances from valid description to
understanding and from decent understanding to relevant explaining.

II. COMPARISON AS A CROSS-BORDER FORM OF

KNOWLEDGE ACQUISITION

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Basically, comparative study is a challenge of identifying differences and
similarities as observed above. The fundamental object of comparative
law is to acquire knowledge on what separates the legal systems or
cultures studied and what connects them and to explain or assess what
has caused the differences and/or similarities. The method of knowledge
acquisition is comparison (German Vergleichung), which is a natural
cognitive model of human ability. When we talk about comparative law
or comparative study in general, we often forget to mention this natural
connection with everyday thinking and intuitive knowledge acquisition.
Someone who practises the doctrinal study of law might consider
comparison as an ‘academic peculiarity’, although at the level of basic
ways of making sense of the world, this is not the case. To be sure,
doctrinal study is much more distant from common sense thinking than
making comparisons.
When we in a scholarly context hear the term ‘comparative law’, some
sort of rather abstract scientific method might easily come to mind. As
stated above, in reality comparison is in fact almost the most natural
method to acquire and increase information about the world that is
beyond our own immediate native understanding. Comparison is our
inborn constitution for acquiring experimental knowledge and a way of
thinking that enables us to acquire practical knowledge. According to the
basic definition of Professor Nils Jansen, ‘Comparison is the
construction of relations of similarity or dissimilarity between different
matters of fact’.2 This is clearly something we do every day by way of
asking questions: is this bag heavier than the other one; is today colder or
warmer than yesterday; which of these products lasts longer; which of
these cars is more expensive; is it more expensive to travel by aeroplane
than by train etc.
It is a question of investigating the relations between different matters
from a particular point of view: observations concerning difference and
similarity are implicitly constructed. Moreover, comparison is also a
basic method of scientific knowledge acquisition.
Terminology can be confusing. It seems natural to separate different fields of science
and to include legal studies in the entity of all sciences. On the other hand, it is clear
that the normative doctrinal study of law, legal theory, comparative law and the
history of law are not science (Latin scientia) as such. The old Latin name for legal
study (and its derivatives in other languages), on the other hand, are derived from the
word prudentia (Latin iurisprudentia), which emphasises learnedness and skill.
Professor Vernon Valentine Palmer from Louisiana fittingly states: ‘Omniscience is

79
an excellent end but it is not invariably appropriate and cannot be the everyday
standard of comparative law’.3

In this respect comparative law preferably belongs to humanities studying human

culture rather than to the same category as medicine and astronomy. In this book the
way of conceiving comparative law familiar to the usage found in many languages is
not used; instead, comparative law is regarded as a form of prudence, ie
jurisprudence understood in a broad manner. This refers to prudentia, which is
practical wisdom, not to scientia (Greek φρóνησις) Yet, we can observe that
jurisprudence has several features that are also found in scientia: principles in the use
of references, obligation to give justification, following of research-ethical principles,
methods based on arguments, collective control of the community of researchers and
so on. There is plenty of likeness to science, but it is not a question of exact science.
In German terminology it is, however, seen as a form of operation that can be
described as a member of the family of sciences (Wissenschaften).

Some schools of thinking formed by comparatists have also tried to define

comparative law as science in a more exacting sense, as was demonstrated in 1987
by the original programme declaration of the Trento circle that was formed around
Italian Rodolfo Sacco (b 1923): the five principles describing comparative law are all
permeated by an aspiration for scientification.4 Later in the Trento sphere of
influence have been included, in addition to the original members (eg Sacco, Antonio
Gambaro, Pier Giuseppe Monateri), other researchers who do not attempt to commit
themselves to the original programme declaration that was renewed in 2004 by
Gambaro and others.

So, the basic cognitive setting in comparison is relatively clear. How do

we actually know that something is, for example, cold? How can we
maintain that one matter is big while another is small? Before we created
a modern absolute thermometer scale, our only way to define cold was to
compare it to warm and then conclude what the difference in
temperatures meant in concrete terms. In order to know what can be
labelled as small, we have to be able to say what is big. Understanding
these differences and similarities is not purely a natural and inborn
capacity but also a skill learned by experience and enabled by the
automatic capacity for comparison of the human mind. It is a question of
the perception of the relative position between matters, the basic
operation of human observation. The human mind figures out various
sorts of proportions very well, ie one grasps relationships that exist
between the size, colour or amount of two things.

A. About Proportions

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A matter is something in particular because it is something in proportion
to something else: the argument that there is ‘inefficient and insufficient
protection provided by law’ in the People’s Republic of China has a
sensible meaning only if we know what ‘efficient and sufficient’
protection provided by law means. Mere suggestions are not sufficient.
Suggestions have to be proportioned, ie we should say ‘inefficient’ in
proportion to something and ‘insufficient’ compared to ‘sufficient’. The
comparatist has to explain the arguments of their comparative study for
readers to assess. The reader can in this way evaluate if they would reach
similar conclusions on the basis of the same study and similar material.
There is almost a tautology here: comparison (to compare) is the
cognitive foundation pillar of comparison. Through comparison and the
establishment of concepts, such elementary conceptual categories (in a
social sense) as being small and big or slow and quick have been formed.
We understand what is republic because we know its conceptual
counterpart monarchy. In the law of compensation (or tort law), the
concept of intangible damage becomes comprehensible when it is
compared to material damage, in property law the concept of immovable
property is understandable when it is compared to the concept of
movable property, a petty crime is understandable when it is compared to
a felony and so on.
The conclusion is obvious: the basis of comparative study is not
detached from common sense; it is instead the intuitive starting point of
human knowledge formation. The everyday thinking in itself and the
practical knowledge needed in daily pursuits often depend on the
intuitive use of the comparative method although we do not consciously
think that we are using any special comparative method. Moreover, there
is a deeper philosophical kind of proof of a person’s existence based on
the sheer fact that someone capable of any form of comparison
necessarily exists. Paraphrasing (French je pense donc je suis or Latin
cogito, ergo sum) philosopher René Descartes (1596–1650): ‘I compare,
therefore I exist’ (‘Confero, ergo sum’). This is no more no less but the
premier principle of all comparative study (Descartes’ le premier
principe). In short, comparative law is simply an advanced application of
comparative knowledge formation.
Now, in comparative law the comparatist consciously tries to find
another system to which their own legal system could be compared and it
would be possible to look for certain commonalities or differences.
When it is a question of a conscious quest for differences and similarities
between legal systems as well as for their explanation, we can call it

81
proper comparative law. If in the research, for example, several foreign
legal systems are merely introduced and described consecutively or
parallel to each other (system A, system B, system C etc), then it is not
comparative law because there is no act of comparison involved. Still, a
great deal of the legal research carried out under the banner of
comparative legal research or comparative law is mainly parallel
description of foreign legal systems where comparison is lacking. Often
it is the question of mere Auslandsrechtskunde, which in fact could in
itself be useful information in the drafting of legislation or the
application of the law. Also the language of publications has here its own
role: a genuinely international study is linguistically comprehensible
even for those who are outside the system. Unfortunately, this puts less
common languages in a disadvantageous position because it favours
more common languages.
So, making comparisons and drawing conclusions on their basis is a
built-in capacity in human beings who aim at knowledge. In the same
way, everyone who studies foreign law is engaged in first-stage intuitive
and the spontaneous comparison of law because the context of their own
understanding is based on the epistemology of their own legal system
(‘pre-understanding’, German Vorverständnis). This is why comparative
law helps them paradoxically to comprehend their own legal system
better and improves the possibilities to develop it by enlarging the
knowledge basis—comparative law enables us to grasp our own legal
system in a different light or reflected in a different mirror. The
epistemological idea here is simple: if comprehension of foreign law
requires in terms of knowledge more than the doctrinal study of law in
one’s own system, it means that law contains culturally bound implicit
elements. Law is, in fact, always law in context. If culturally bound
elements define how law is understood, interpreted and applied, why
would the comparatist’s own system be some sort of capricious
exception in this respect?
Many comparatists of the twentieth century have underlined comparative law as a
study method that offered new stimuli in the comprehension of one’s own law as
well. Some have gone even further since the concept of shock therapy has been used
in this context. The expression ‘the laboratory of truth’ has been used to describe this
dimension of comparative law. Professor Michael Bogdan takes this way of thinking
even further: ‘a lawyer who has studied only their own legal system, cannot have a
full understanding of that system’.5 Bogdan’s point is an important one; by studying
only one’s own law one cannot gain full understanding of that system. In other
words, to perceive completely something that is one’s own is possible when one’s

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own is viewed with the eyes of an outsider (epistemic alienation). Metaphorically it
is a question of a kind of out-of-body experience and observing the ‘legal body’ from
the outside: out-of-body-experience relates to an epistemic feeling of separation from
one’s own law and being able to view, to an extent, one’s own law from an external
perspective.

Also in the study of general jurisprudence the comparative approach has

plenty of possibilities when study no longer is so bound to the systems of
nation-States as it earlier has been. By means of teaching comparative
law and foreign law it is possible to transfer the focus of legal study
away from learning detailed rules and instead to concentrate on the
general principles and features of the legal system. More significance is
also given to the international dimension of law as part of instruction and
research within all branches of law. Through comparison it becomes
possible to proportion the familiar to the unfamiliar—this generates new
knowledge and novel insights about law.
Along with the European Union law, European human rights and the
globalisation of law, comparative law is more clearly and indisputably
constructed on law as a normative phenomenon in itself: different
systems contain elements that oblige us to compare. When, for example,
the realisation of the harmonisation obligation set by an EU directive in
one’s own country is interpreted, the realisation of the directive in other
Member States has to be studied as well. Implementation norms in other
languages can also be inspected to give grounds for making the
interpretation. Legal texts that can be studied side by side are
simultaneously available in several languages: in essence this is
comparing laws and legal languages.

B. Different Needs

Despite their common sense origin, scholarly comparison and everyday

comparison have parted from one another. Above all it is a question of
conceptual systematicness, clarity and discipline but also of
controllability and reliability. Comparison is reasonably easy in physical
and chemical sciences because the laboratory conditions can be
controlled to a considerable degree. In research concerning the cultural
characteristics of people it is impossible to attain full scientific reliability
with methods that would be ethically acceptable. Be that as it may, this
has not prevented the use of the comparative method in the research of
politics and law in the past. In different periods and different legal

83
disciplines there have been different knowledge-interests, which have
been and still are possible to satisfy.
According to the oral tradition of ancient Rome—for such an early period it is
difficult to find facts—in the 460s BC, the Romans sent a delegation to Hellas to get
acquainted with the legislation of Greek city States in order to gain a knowledge base
for the creation of a compilation of laws. The idea was to enact a comprehensive
body of laws that would provide not simply for individual cases. This has been
reported to be the comparative history of the Twelve Tables (Latin Leges duodecim
tabularum). These laws have had great significance for the development of Roman
and subsequently European law.

In Iceland around 930 AD a man called Úlfljótr was sent to Norway to learn about
law. When he returned after about three years Iceland would go on to have a law and
administration system of its own prepared on the basis of what he had experienced
and learnt. Úlfljótr is known in legal history as a kind of lagman, ie ‘a speaker of
law’ (lögsögumaðr).

Needs for information and the world have changed. For example, the operation of
lawyers working in the area of the European Union for the harmonisation of
European private law differs from the ancient models because nowadays integration
of several different systems is consciously the aim. In other words, the aims and
contexts of comparison are different, and they have an effect on what is done and
how it is done, ie methods and aims of comparative law have been and still are
contingent, not definite.

Now, some fields of knowledge seem to be more relevant for

comparative law than others. Legal history teaches the comparatist.
History is useful for the perception and explanation of the legal context,
but one must beware of slipping into the world of myths and
romanticising law. A good example of this is the case of the classic white
statues of Antiquity that have since been proved to have been originally
painted in glaring colours: it has been difficult for those who had
internalised the classic image to accept the crumbling of their own
romantic and mythical ideal. The same has applied to many ideas that we
have had of Roman law into which illusions and ideals of each period
have been loaded while the legal-historic accuracy has been given a
minor role.
Finnish legal historian Kaius Tuori has argued that Roman law has
always been purposefully interpreted from the viewpoint of present
needs.6 In short, accuracy is good but not always plausible as an aim.
Occasionally it is difficult to perceive where we are and where we will
go, as Otto Kahn-Freund (1900–79) pointed out: ‘Perhaps we should not

84
overestimate the problems of today which may not have been those of
yesterday and in a kaleidoscopic world are not likely to be those of
tomorrow’.7

III. COMPARISON AS THINKING OUTSIDE THE

BOX
Apart from the fact that comparative law deals with the acquisition of
knowledge for different purposes, it is characterised in a way described
above by genuine internationalisation and the attempt to become
detached from the epistemic limitations set by one’s own legal system.
Often, though not always, it is also a question of the Universalist attitude
to law and legal research that is well described by the American
comparatist Hessel E Yntema (1891–1966) in the late-1950s, who stated
that ‘legal science does not admit chauvinist isolation’.8 This means that
quite frequently comparatists consider that only such study, which is not
limited to the law of only one system, may be considered as the real
scientific study of law. Notwithstanding, perhaps we should not have as
orthodox a view as this on comparison because comparison can be used
in many different ways, and they do not necessarily exclude one another.
And, it is not a question of competition because national legal study
(legal doctrine) has its own natural position and function as well as
legitimisation for existence.
It seems justified to argue that comparative law is fittingly described
by its desire to detach itself from the mental straitjackets set by national
law. According to Yntema, aiming at high scholarly quality in itself was
an action in opposition to legal chauvinism: he was well ahead of his
time because only now in many traditional faculties of law has the
genuine internationality of legal study been understood. But there is
more to it. Some romantics who have been inspired by legal history have
even sighed for a return to the Continental European ius commune
tradition.
Regardless of the fruits of the comparative approach, a practising
national lawyer may be left wondering about the detachment from the
knowledge of their national law. Here we find the heart of the matter.
The attempt to break away is important if for no other reason than the
fact that national legal systems were not born or have not grown in
isolation. Legal institutions and schools of thought and doctrines as well

85
as institutions have affected each other and continue to do so. The legal
purity of the national law in connection with regulations, institutions and
doctrines is, as it has been often, more a normative fiction than a fact. We
have adopted from others a lot more than we can comprehend: many
legal institutions are in constant circulation. We are simply not distinctly
aware of the layers of loans, borrowings and copying that still exist.
Systems are a patchwork of diffusion and interaction as well as of
national ideas, ie most national systems are, as are States themselves,
cosmopolitan as H Patrick Glenn (1940–2014) argued.9 For Glenn, the
idea of the ‘Nation-State’ has simply failed and we are in need of a
cosmopolitan theory of State.
Legal history can present examples of such borrowing on a massive scale. In 1926,
for example, Turkey borrowed quite consciously from a foreign legal culture, ie
Switzerland, whose Civil Code (Zivilgesetzbuch, 1907) it copied and put into force
(Türk Kanunu Medenisi, revised edition 2002). On one hand, it was a question of the
authority that Swiss law, as a law of a technically high standard, had at that time in
Turkey. On the other hand, it was also a question of need because Turkey was being
modernised and needed to import such legal provisions as it did not have the
professional capacity to create those that would fit the State, which had just broken
away from the traditions of the Ottoman Empire and was aiming at drastic and large-
scale modernisation. The Swiss codification was suitable for reception because it
contained fewer provisions and the contents of provisions were scantier than in many
other codifications. We may also mention other examples such as Bolivia (1830), the
Republic of Haiti (1852) and the Dominican Republic (1854), all of which adopted
the 1804 code civil of France either in full or almost in full.

Adoption of foreign law usually takes place on a smaller scale, as for example the
adoption of American institutions and legal-cultural practices. Examples that can be
mentioned are class actions or plaintiffs’ claims for compensation that have risen
sky-high, and which reflect American legal ideas rather than Continental European
ones. At present, the plea bargain method is about to start spreading. The EU has
brought about a lot of legal borrowing and diffusion of legal ideas. And conformity
and points of contact have also been increased by the European Convention on
Human Rights and the practice of the European Court of Human Rights. As a result,
for example, in European law there are more and more such elements whose
thorough understanding requires getting acquainted with their non-national origins
and basic ideas.

Why is the crossing of borders the lifeline of comparative law? What is

so special about it? This doubt is uttered by legions of national doctrinal
scholars. And yes, it deserves to be answered. Let us take an example of
an imaginary State that had been surrounded by impervious walls for
several centuries. How could any ‘jurist’ or ‘legal scholar’ try to tell

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about their society or even describe it to any outsider? What could they
compare their society to, or how could they know what they should tell
about their society? Would they be capable of explaining what is
considered law in their society, what is the legal system or form of
government of the isolated State or what law is like in their society etc?
The description that the above-mentioned person would offer of their
own society and legal system would be incomprehensible for other
people, because owing to the isolation it would be impossible to describe
even simple things; is it possibly a democracy or perhaps a monarchy, is
the court system divided into general courts and administrative courts, is
penal law severe or lenient etc. (The portrayal could naturally be treated
as a detailed description, but it would be essentially slower and also
difficult to understand since there would be no comparison standards.)
To make it concrete: Islamic law does differ from Western law, but a
Muslim jurist is able to describe their law to an American jurist—and
vice versa. To think otherwise would mean underestimating the basic
human ability to think and learn. Certain commensurability is usually a
fact: research interest is focused on an abstractive normative set of rules
that is based on certain sources. Of course the content of the rules may
differ, the style of normativity may differ, the sources may be different
but, still, we are dealing with human societies and organised large-scale
normativities.

A. Away from Ethnocentrism

To simplify a great deal, the realisation and comprehension of human

matters, even the simple ones, presumes the existence of general
concepts that are based on comparison. The fact that we describe, say,
German law by saying that it is trying to be systematic and logical and
call English common law casuistic and unsystematic presumes the
existence of certain comparative background criteria. For example, the
difficulty of describing the English trust (as a property arrangement
where there is double-ownership between the owner and the beneficiary)
is mainly due to the fact that there is no similar legal institution in
Continental Europe. The functions that are taken care of by trust in
England are on the Continent dealt with by other legal measures. Yet,
there is comparability and epistemic commensurability.
If a researcher is deprived of the opportunity to extend their study
beyond of the boundaries of their own community, they are in danger of
staying cognitively blind: a Scandinavian jurist who does not perceive

87
their own law as a sibling of other Nordic systems will not understand
the legal-cultural position of their own law and a New Zealand lawyer
not perceiving their own law as a form of common law is virtually one-
eyed. Comparative law attempts consciously to avoid such blindness and
therefore consciously aims at relying on a framework that is
comparative.
We can see here more profound dimensions, too. To summarise what
was said above: comparison is a natural activity of human consciousness.
Understanding an individual fact presumes understanding the facts that
are related to the matter. Because it is easier for us to grasp our research
topics in a context, a research approach that is international and crosses
the borders of national legal systems is needed if we want to maintain
that we really know something about law. Comparison is the engine of
knowledge without which we cannot obtain knowledge that actually
surpasses the knowledge of our limited cultural sphere.
In the end, the attempt to compare law is also a question of the
rejection of ethnocentrism, or the pushing away of the implicit thought
pattern that national solutions are always superior or at least ‘normal’.
This does not necessarily mean deep commitment to universalism but
rather commitment to the fact that in the world of law we can learn from
others. On a very general level we can talk about the broadening of
consciousness and the cultivation of the ability for legal thinking.
Needless to say, these premises are not obvious everywhere in Western
culture. For example, the isolationism that is again gaining ground in the
United States serves the rest of the world very poorly (which of course is
the case with the United States too).
Comparative law is probably the most efficient way to get rid of the
national mental straitjacket that restricts the acquisition of legal
knowledge in a broad sense. This does not mean, however, the rejection
of the national law’s normative point of view. The internal legal point of
view has, of course, immense practical legal value. Nevertheless,
knowledge gathered as a result of comparison can also be of assistance
when one’s own legal system is being developed. Von Jhering, who was
a famous German legal historian of the nineteenth century as well as an
expert on universal jurisprudence, reportedly said that, ‘One has to be
stupid to refuse a fruit if the only excuse is that it has not grown in one’s
own garden’. The wisdom of this quotation is not decreased even though
no one is 100 per cent sure who said it.
However, it is clearly not advisable to borrow and use just anything.
Comparison presumes certain basic caution because models copied from

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foreign legal systems can include endogenous problems that are not
known in the receiving country, ie the fruit von Jhering was referring to
can also contain harmful ‘remnants of pesticides’. Ultimately this does
not differ from enjoying the fruit of somebody else’s garden: one has to
taste and evaluate the edibility of different fruit, to savour the taste and to
decide on how best to use them. One should also beware of mistaking
ornamental plants for edible ones.
Legal-cultural ways of thinking as well as the legal mentality have their impact. For
instance, while the Supreme Court (ie court of cassation) in the Netherlands (Hoge
Raad) often has the Supreme Court of Germany (Bundesgerichtshof) as the source of
inspiration for its decisions, in the neighbouring country, Belgium, the court of
cassation (Hof van Cassatie/Cour de cassation de Belgique) looks for its inspiration
from the court of cassation in France (Cour de cassation). Dutch civilist and
comparatist Professor Ewoud Hondius fittingly speaks about applicational
development of law by means of ‘looking over the border’.10 Often it is a question of
selective borrowings, which could also be called ‘learning from and with the
neighbour’.

IV. BASIC KNOWLEDGE-INTERESTS

The starting point for comparison is quite clear: it is an attempt to
acquire knowledge (independent of any specific legal systems) of law by
means of comparing laws. Such an aim is very extensive and covers
several different fundamental elements. The key point is easy to discern:
it is important to recognise the knowledge-interests (German
Erkenntnisinteresse, ie knowing-interests or epistemic interests) of the
study, or the motivation for why comparison is carried out, as well as
what kind of knowledge is looked for and what is the purpose of
comparison. When the approach of the comparative study is decided,
orthodoxy in carrying out the ideas of a particular school of comparatists
is not prudent. However, commitment to the purpose is crucial so as to
not follow an external rule offered by any particular school of thought.
It is essential that the comparison carried out or just the study of
foreign law genuinely serves the purpose of the study instead of just
remaining self-sufficient decoration or a presentation of unconnected
matters, ie ornamenting one’s study with trivial foreign law accessories.
If comparison does not contribute to carrying out the actual research
assignment, it is worth considering whether comparison/study of the
foreign law is at all worthwhile. Here, however, we must keep apart the

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fact that, for example in the doctrinal study of law it is perfectly normal
to refer to foreign law or non-national legal literature and to use it as a
part of the argumentation in accordance with the ways allowed in the
doctrine of the sources of law. But in such cases it is a question of
interpretation and systematisation of one’s own law, not of comparative
legal study. The same difference applies also to private international law,
the aims of which differ from genuine comparative law which seeks to
understand and explain.
We can apply a game metaphor: it is not sensible to referee a
basketball match with the rules of football, even though they both are
ball games. Mutatis mutandis: it is not necessary for jurists to commit
themselves to the theories of comparative law, just as comparatists need
not yield to the ideas that the national doctrinal study of law has about
the way legal research should be carried out. On the other hand, it is not
advisable for the doctrinal study of law and comparative law to drift so
far apart that the fruitful interaction between them dies out. Both are
established members of the family of legal disciplines. And, possibly,
there is a certain special connection still to be seen between private
international law and comparative law, although their knowledge-
interests clearly differ from one another: practical application versus
understanding and explaining.
So, comparative law can be used for many different purposes;
therefore it is not justified to define different interests in too limited or
exhaustive a way. Albeit, it is possible to distinguish several basic types
of comparative knowledge-interests. On the one hand, the comparatist’s
interest in knowledge acquisition can be integrative or contradictive. On
the other hand, the comparatist’s interest can be related to a special
method that serves the comparatist’s purpose and is used to carry out
comparison. Comparative law (or merely the study of foreign law) can
also have a significant role in legal education. In the following, five basic
interests are listed:

Basic knowledge-interests
1. Integrative interest
2. Contradictive interest
3. Practical interest
4. Theoretical interest
5. Pedagogical interest

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V. INTEGRATIVITY AND CONTRADICTIVITY
In integrative interest the comparatist concentrates on similarities
between the subjects compared. This comparison interest can also be
called the harmonisation interest of law or the unification interest of law.
Harmonisation in its modern sense means the general attempt in legal
policy to bring about as complete a harmonisation of legal systems or
their parts as possible in such a way that the biggest deviations are
eliminated and a minimum standard with which all parties must comply
is created.
States carry out harmonisation by means of different international
legal approaches, but extensive harmonisation of law has been practised
within the European Union in particular. It is a question of coordination
of many branches of law and of bringing them closer so that major
differences are eliminated from the systems (result: identical applicable
rules). This can be done when minimum requirements or standards are
first created by the help of comparative constructions.
Unification goes a step further; here, the target is not merely minimum
standards that concern certain fields or the similarity of certain parts of
the legal systems. Here, a more profound legal unification is aimed for
(same applicable rules). In unification an attempt is made to replace two
or more legal systems with a new system that would take the place of the
previous ones. Integrative comparison can be used for both purposes. It
is also important to realise that neither unification nor harmonisation is a
legal choice (how to apply a rule or precedent) or a comparative choice
of method but is dictated by political targets set. Comparatists whose
background is in private international law tend to be in favour of
unification for practical reasons, while late-modern comparatists are
considerably more reserved on the topic and feel more sensitive towards
legal-cultural differences. Especially critical and postmodern
comparatists in particular have underlined contradictive comparison and
the existence of legal-cultural differences.
Contradictive research interest pays special attention to differences
and emphasises the fundamental difference between systems. In research
practices it is a far more rarely used comparative method than the
integrative research interest. In general it comes to question when the
systems compared are very different in their legal cultures, such as
criminal law that is based on Shari’ a and Western criminal law. Also, it
is fair to say, the basic ideas of critical comparative law have a strong
contradictive undertone. This undertone has been, by and large, an

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epistemic countermove against the earlier harmonisation-oriented
practical comparative approaches.

A. The Historical Dimension

Harmonisation is not historically merely a modern legal phenomenon,

but instead it is very well known indeed in legal history. It certainly did
not begin as late as the European integration of the late twentieth
century. The chain of events with legal-historic significance started in the
thirteenth century with the importance of research and teaching in
Roman law and the Romano-Germanic ‘common law’ (German
Gemeines Recht, French droit commun, Spanish derecho común) that
was born from it. In European legal history it is possible to differentiate
the birth history of the integrative comparative interest from within the
ius commune tradition—from the Middle Ages to the nineteenth century
—that was born out of Roman and canon law.
It was as late as at the beginning of the nineteenth century when the
era of massive national codifications finally brought an end to the soft
Central European integration and started to stress the boundaries of
national law. The birth of comparative law in the modern sense was
accelerated as a countermove to the underlining of borders and national
emphases. In the nineteenth century, private international law as a field
of law was born out of the situation where national boundaries had
become a problem in contracts and marriages that crossed borders
between States and legal systems.
In the Middle Ages it was typical in legal decision-making to cross national borders
when the rule that would probably solve the case was looked for. It is important to
notice that at that time jurists studied the legal source material and authorities in
order to find from the common ius commune tradition a legal rule the same as in their
own legal system, not in order to obtain from foreign law inspiration for their own
decision-making. Needless to say, the choice of law questions and application of
foreign law (ie conflict of laws) is far from the medieval inclusive tradition.

The core of the ius commune tradition was reinterpreted Roman civil law, which
meant that comparison of laws that was applied to find ius commune was only
governed by public law to a small extent. Although Roman civil law has had a great
impact on the development and formulation of legal thinking, from the point of view
of public law almost as central a position was filled by the French Revolution and the
legislative development that has resulted in the birth of modern constitutional law
and administrative law. The historical roots of private law go deeper than the roots of
public law, but the growth of the significance of fundamental rights and human rights

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has evened out the differences between fields of law and added connections between
them.11

When codifications multiplied and the trend for national legal thinking
strengthened in the nineteenth century, the significance of integrative
comparative law decreased considerably. Contradictive comparative
study started to assume a more significant position. With the rise of legal
positivism State sovereignty became the basis for legal thinking and
international law. Comparative law began to turn into a specialised field
whose knowledge-interest became more conscious of nationality. Legal
borders were constructed and the study of law started to become
increasingly national; instead of an inclusive approach the exclusive
approach became the paradigm. Legal and epistemic obstacles were
erected alongside the birth of nation-States. Nation-States proliferated
across the world from the beginning of the 1800s by replacing old
empires and kingdoms and thus wiping away the relatively shared legal-
cultural world of ius commune. State-entities understood the nation as a
sovereign territorial unit with its own ethnic, cultural and legal contents.
So, legislative national needs in particular started to dominate in
comparative study; foreign laws and legal institutions were investigated
in order to find good (or poor) examples of socio-legal solutions and
legal innovations acquired. The fundamental motif was very
instrumental: there was a desire to copy (presumably) the best parts of
foreign law in order to assimilate them into one’s own law. This kind of
engineering-type of comparative law is very clearly aware of the
differences between systems and carries out instrumental comparison by
bearing in mind the development of one’s own law.
At the same time the colonised regions outside Europe were in many
ways force-fed with the so-called civilised, or Western law. Law was
sold, bought, exchanged and sometimes stolen: legal inventions have
never known of copyright. Humans’ sphere of law is permeated by stolen
ideas and illicit loans—social innovations travel if people feel like
spreading them. However, they do not spread the same way epidemics
do, because the needs and objectives of groups of people have an impact
on the acquiring and borrowing of social innovations. Law travels but it
does not seem to travel simply at its leisure.
Legal historians have described the nineteenth century as a period of
great national codifications during which jurists turned their attention to
the (internal) interpretation, systematisation and analysis of the
codifications produced. At the level of legal practice, persons who had

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assimilated comparative legal knowledge started to turn into experts who
were expected to have an answer to one question in particular, ie how to
apply foreign law in cases that crossed the borders of national legal
systems. In this kind of instrumentalist comparative law the emphasis
was typically on finding differences instead of finding similarities, which
had been the case in the previous period.
It is easy to realise that this kind of comparison seems to fall quite
naturally on private international law: basically there is no desire to
compare and explain as such, but to determine the country whose
legislation is applied to international legal relationships (what is the right
legal forum, which State’s law ought to be applied, what is the influence
of the court decision of one State on another State, and so on). Relations
between States were elementary and few in number compared to the
world today although individuals were not much bothered by borders in
those days either: business or love does not much care for distinctions
between legal systems. And, here is the thing, private international law,
unlike comparative law, is a field of law. Private international law is
essentially based on national law, which in fact is complemented by
European law (which is partly enforced without special national efforts
to bring them into force). In short, private international law (or conflict
of laws if you prefer) and comparative law should no longer be regarded
as natural allies. Their fundamental interests of knowledge are different
—and it goes without saying that comparative law is not a field of law
but a legal discipline.

B. Recent Integration in Europe

The integration development in Europe has meant that the focus on

European comparison is again moving towards integrative comparison,
which means that it in a certain sense recalls a kind of new European ius
commune system. Within the European Union the integrative
comparative law interest is manifested in several ways. At its purest it
appears in the introduction of the EU Charter of Fundamental Rights
according to which the rights are protected in accordance with the
competence, functions and the subsidiarity principle of the Union. These
rights are said to be based explicitly on the common constitutional
traditions of Member States and their international commitments, the
European Convention for the Protection of Human Rights and
Fundamental Freedoms, the Social Charters adopted by the Council of
Europe and the case law of the Court of Justice of the European Union

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and the European Court of Human Rights. Here, the starting points are
by no means confined to any one national system: constitutional
traditions are conceived as commonly European.
In Europe the main question has long been legal harmonisation, which has been less
demanding than unification. This is apparent in many central fields of law, such as
contract law where the national contractual systems of the Member States are
different in many ways. At the Union level some common regulations have been
given for certain problematic cases. In practice, such harmonised regulations cover
limited fields of contract law, the emphasis being on contracts in consumer law in
particular.

It is essential to notice that even in cases where harmonised regulations are applied,
as a rule they offer the Member States an opportunity to apply other bodies of law, if
they so wish. That is why the EU internal market does not have a standardised and
comprehensive set of contract law norms that firms and consumers could apply in
business that crosses the borders of Member States; however, a proposal for
commercial law with this in mind is under discussion. This is a big challenge for the
internal market in the Union since the market economy of the Union, which is based
on the free movement of goods, capital, services and people seems to require deep
legal coherence. At present the European system is more like a legal kaleidoscope
than a coherent system: there are significant similarities but also discrepancies.

Harmonisation based on legal cooperation has been carried out in the Nordic
Countries, too. In fact the Nordic Countries have cooperated in legal matters for over
100 years. An important informative background factor has been the Nordic
Lawyers’ Meeting (organised for the first time in 1870, and at present organised
every third year). One example of the influence of Nordic legislative initiatives is
that at the beginning of the previous century laws that were very much alike were
enacted in the fields of commercial law and contract law (the pieces of legislation are
still partly in force). Harmonisation projects were carried out for most of the
twentieth century. According to the Helsinki Treaty signed in 1962, Nordic
cooperation would be continued in order to attain uniformity of regulation in the field
of private law. In addition attempts have been made to establish uniform rules
relating to criminal offences. Harmonisation has been aimed at in all fields of
legislation where it has been considered appropriate. In practice the membership of
three Nordic countries in the European Union has complicated the traditional Nordic
cooperation in the field of legislation. In fact, the legal integration of Nordic
countries has in practice largely been replaced by European integration.

For all actors in Europe, loose harmonisation has not been a sufficient
aim in legal policy. Apart from the supporters of deeper integration, in
legal disciplines there have been fascinating and far-reaching schools of
thought related to the topic. Some intellectual historians of law, such as
Paul Koschaker (1879–1951), suggested nostalgically that the

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development of European legal systems should be built on the
foundation formed by classical Roman and Germanic legal features.12 In
the background of the unified European law there are two trends of legal
thinking that are influenced by both legal history and comparative law.

C. New or Old Ius Commune?

European integration has stirred much interest in the ranks of legal

historians as well. On the basis of legal-historical discussion it seems that
we can talk about not only the ius commune tradition but also about the
more recent ‘common legal tradition’. It allows for considerable free
choice concerning interpretation and allows for a kind of flexible
pluralism in legal practice. More far-reaching is the idea of a completely
new novum ius commune law, which is to a large extent based on a novel
legal-culturally common late-modern European law that is the result of
the work of courts and different European institutions and legislative
instruments (eg the EU Charter of Fundamental Rights). The Union’s
Constitution project that was rejected in the referendum in 2005
represented a line of strong general harmonisation and even federalism.
In the 2010s, the approach has been more cautious; the financial crisis
has at least temporarily eroded the legal-cultural impetus of integration.
We have heard voices of protest and discontent from countries (eg The
Netherlands, Finland), which used to be very active and open in their
integration policies.
In practice, the big financial and institutional crises of the past few
years have brought up many obstacles for schools of thought that
promote profound legal-cultural unification. Although ius commune is an
educational historical analogy, its real weight as a common legal-cultural
basis for the modern Union is unavoidably vague. On the other hand, if
ius commune is the source of legal-cultural inspiration, mainly in
connection with legal methods and legal mentality, the situation is
different. In the context of the contents of substantive law there is hardly
any sense in going back to the old. Dutch Professor Martijn Hesselink:
‘Why should the future resemble the past … study of legal history is
unlikely to provide current lawmakers with clear-cut answers’.13 There
may be a lesson for comparative law here. The usefulness of legal
history cannot and should not be denied, but neither can it be regarded as
the storage room of legal ideas where future decisions are stocked and
from where whatever is needed can be fetched at will. Legal history

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should not be pruned down into empty concepts into which present-day
jurists referring to the legal-cultural nostalgia inject a content that seems
best suited at that particular moment.
In any case, in European legal harmonisation it is essential to observe
the active role of the courts. Integrated law is created by means of not
only treaties and statutory law but also by interpretations made by the
high courts. Particularly the Court of Justice of the European Union has
in this respect had an important role in the application and creation of
law.
In accordance with Article F(2) of the Maastricht Treaty of 1992 in
regard to the European Union, the Union valued as general principles of
Community law the fundamental rights in the form in which they were
guaranteed in the European Convention on Human Rights and in the
form in which they appeared in the shared constitutional traditions of
Member States. The Court of Justice of the European Union created this
principle in the Stauder case by talking about human and fundamental
rights specifically as a part of common general legal principles.14 It was
not only a question of substantive law, but the Court expressly brought
up the need for comparative examination in the belief that it was
impossible to consider one version of the text in isolation but requires that it be
interpreted on the basis of both the real intention of its author and the aim he seeks to
achieve, in the light in particular of the versions in all four languages.

In other words, versions in different languages had to be compared so

that a kind of shared European core could be constructed comparatively.
According to an interpretation practice established in the EU Court,
fundamental rights have for quite some time been considered to be a
central part of such general supranational principles of law as to be
guaranteed by the EU Court. The Union Charter that came into force
later institutionalised the settled case law that the Court had already
earlier assumed. Already, at a quite early stage, the EU Court had based
its interpretation on stimuli that has been offered by international human
rights and the common constitutional traditions of Member States.A
classic example would be the case of Internationale Handelsgesellschaft
in connection with which the EU Court ruled that fundamental basic
rights are such principles of law that their observation had to be secured
in the legal system of the EU.15
The court stated in the Hauer case that being aware of the fundamental
rights of the Member States presumed that the viewpoints of the

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constitutions in States were studied.16 The Court aimed at resorting to
the comparative approach when interpretation was needed or gaps in law
were found. National systems indicated, on the one hand, what kinds of
interpretations are possible and, on the other hand, what kinds of
problems could be related to different interpretations. For example, in the
administrative process, in connection with principles related to
administrative law, the praxis of the EU Court includes a landmark case,
Transocean Marine Paint Association concerning the hearing
procedure.17 The other party to the case considered that its procedural
right to be heard had been violated. The problem was that EU law did
not contain a regulation on hearings: for the proposed decision the
Advocate-General of the Court ran through the systems of Member
States and constructed the proposal on the hearing principle prevailing in
Member States (six out of the nine States that at that time were in the
EU). Importantly, the proposed decision was produced by means of
comparative deduction.
In the Transocean case EU law had detected a gap, but the situation
had to be solved in a uniform way. Even though the Court in its decision
did not refer to argumentation that was built on comparison performed
by the Advocate-General, it can be considered that the judicial core of
the case was partly built on the comparative study of the legal systems of
Member States. The foundation of this comparative law-finding is
basically the same today.
The Court’s interpretation ideology of legal policy presumes comparative law has not
changed although there are already 24 official languages in the Union. For example,
in the case Commission v Finland in 2007 the Court stated:

Although the Finnish version of that provision contains no reference to the

requirement that overheads be allocated ‘pro rata’ to the operation in question, that
fact is of no consequence, since it follows from settled case-law that Community
provisions must be interpreted and applied uniformly in the light of the versions
existing in all the Community languages and since, in this case, the language
versions other than the Finnish expressly refer to the requirement that overheads be
allocated pro rata or proportionally to the operation in question.18 In its preliminary
ruling in Nowaco the Court stated that precedents for ‘all the other language
versions’ are already established legal practice (settled case law).19

All these judgments uphold the basic idea that brings up the need for comparing
laws: ‘impossible to consider one version of the text in isolation’.20 In practice, this
means that the national lawyer of a Member State must master other legal languages
as well as to be able to really grasp EU law. In this case comparative law, or

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comparing different text versions (practical comparative legal linguistics), is an
auxiliary tool in the interpretation needed in finding a solution.

The legal dimensions of the European Union differ from public

international law in many ways. From the point of view of comparative
law, it probably is sensible to perceive that the Union law is a legal
system of its own kind (Latin sui generis) and ultimately serves
integrating Europe. To reach the aims of integration, Member States have
voluntarily restricted the sovereign rights that they have according to the
traditional international law. The treaties are laws that are directly
applicable in Member States as are the legal rules (regulations) of the
Union: they are not separately enforced in the Member States. This is
where the secondary law of the Union differs from the norms of
international law: regulations are immediately enforceable whereas
directives leave certain national leeway as to how to achieve the aims set
by the directive.
The special features of EU law are clearly demonstrated by, for
example, the fact that the EU Court applies methods of interpretation that
differ from national methods and approaches of legal interpretation. The
fact that European judicial argumentation about law is teleological (ie
goal-oriented) is demonstrated in particular in cases in which the
Continental European civil law and English common law characteristics
of both the source of law and the tradition of legal interpretation are
often reflected. In addition to these, in recent years the use of
argumentation that is based on human and fundamental rights has
increased, although it has not altered the basic picture of legal culture in
EU law: from the point of view of legal culture EU law is a kind of a
‘megamix’. Accordingly, there has been a tendency in comparative law
to perceive EU law as a mixed legal-cultural form, a hybrid between the
legal cultures of the Member States and EU law and the European
Convention on Human Rights.
In addition, it is important to note that it is not simply a question of
how courts or legislators operate. In the context of the European Union a
kind of semi-official doctrinal harmonisation has been performed; the
best example of this might be the Common Frame of Reference (CFR)
that has been formulated for contract law. It was formulated by the order
of the Commission and by means of a European research community. It
was preceded by a project called Principles of European Contract Law
(PECL), which, however, remained less comprehensive in coverage.
Preliminary projects were undertaken in the early-1980s, under the

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leadership of Professor Ole Lando from Denmark (the so-called Lando
Commission).21 These ventures have brought the European researcher
community to the forefront of non-national legal development,
simultaneously increasing the importance of comparative law as a tool of
integration.
If and when CFR is not actually statutory law, then what is it? Roughly, it is a
‘toolbox’ whose aim is to help in the development of pan-European law. CFR is not
legally binding, but national legislators can apply it when they implement directives
nationally. According to the initiative of the Commission (2001), CFR had to contain
clear definitions and common terminology for the fundamental concepts of contract
law. The intention was to increase convergence between the contract law systems of
different countries.

In 2009, the international academic network of researchers revised and published the
Draft Common Frame of Reference, which contained principles, definitions and
model regulations for European private law. Definitions contain important legal
terms, such as ‘contract’ and ‘damage’. The Commission applies CFR as a tool: the
intention is to create more coherence in European private law.22

A more recent proposition for a Common European Sales Law (CESL) proves the
value of CFR as a construction method even after the proposal was withdrawn in
December 2014. The Common European Sales Law was meant to become an
optional contractual system alongside the national systems of the Member States—it
could have been applied if the parties agreed on it. In any case, CESL is a tool for
legal harmonisation, which tries to diminish the difficulties caused by national legal
systems, and which seeks to govern the buying and selling of goods in the European
Union. A crucial idea of CESL was that businesses ought to identify the provisions
of another Member State’s applicable law and negotiate this law. This, in turn, would
have remedied the problem of consumers facing fewer choices at higher prices in
their domestic market. The CESL proposal offered traders the choice to sell their
products to citizens in other Member States on the legal basis of a unified ‘set of
contract law rules, which stand as an alternative alongside the national contract law’
(alternative legal regime). The proposal did not gain uniform support and it was
withdrawn and a new modified proposal is to be expected. For example, the UK did
not support it because it regarded it as too incomplete, unworkable in parts, uncertain
as well as unclear.23

In any case, the CFR is interesting but from the point of view of legal
linguistics also quite prone to criticism: it was prepared and produced in
English, but in fact its contents have in many places been reasoned in
legal German and French, not in common law English. Furthermore, the
result was not what was expected, because the extensive publication only
contained the general part of the project. This did not necessarily serve

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the objective, which was to simplify legislation that concerns contract
law. Nevertheless, as a comparative law project CFR is somewhat
unique; it succeeds in indicating what possibilities an integrative
approach that crosses national borders could have. This is proof of the
boon and bane of comparative law.

D. The International Dimension and Knowledge-interest of

Comparison

Sometimes legal scholars have difficulties telling international and

comparative law apart even though there are obvious differences
between them. Comparative law differs from public international law to
a certain extent, in the same way as it differs from private international
law. In spite of the differences, comparative law can be a kind of medium
or help-tool for the international fields of law that are normatively
oriented. For example, comparative law can assist international law
institutions, such as the United Nations, by analysing obligations under
international law in the systems of different States. Comparative law is
also often in instrumental use, when international treaties are being
drafted. By means of it common standards and practices can be located.
Also other points of contact between comparative law and international
law that are even clearer exist.
Within public international law, the integrative interest is familiar
from the Statute of the Court which governs the operation of the
International Court of Justice, which is an organ of the United Nations.
According to Article 9, the members of the Court have to represent ‘the
principle legal systems of the world’. In Article 38(1) the fundamental
rule specifies the legal sources, which the Court must apply when
deciding disputes submitted to it. The first source mentioned is
international conventions (subarticle (a)) and international custom, as
evidence of a general practice accepted as law (subarticle (b)). Besides
international conventions and custom, in Article 38(1) subarticle (c) ‘the
general principles of law recognized by civilized nations’ are mentioned
as sources of law.

International Court of Justice: Statute of the Court Article 38(1)

1. The 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;
(b) International custom, as evidence of a general practice accepted as law;

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(c) The general principles of law recognized by civilized nations.

In addition to conventions, the article distinguishes customary law and

principles of law. The concept ‘civilised nation’ that reflects the aura of
the so-called new imperialism (1870–1914) has undoubtedly lost its
earlier significance. Nevertheless, when no solution to international legal
dilemmas is found from the texts of agreements or customary
international law, it is possible to look for the solution in the national
principles of law, which nations generally acknowledge in their own
legal systems. Nowadays the expression ‘international law, as recognised
by the principal legal systems of the world’ is used instead of referring to
the English expression ‘civilised nations’ or the corresponding French
expression ‘nations civilisées’, which are not only legal but also value
statements.
The international principles of law to which the article refers are part
of national legal systems, and therefore finding such principles presumes
comparative examination of the existing legal systems. Up till now the
judges and jurists have been said to be mostly guessing what these
principles might be. Integrative comparative law would be needed in
examining the content of the principles to which the article is referring.
Often the case has been that an international judge or arbitrator has
settled for the principle of law taken from their own legal system without
checking if the same principle is recognised in other legal systems. The
principles provided by the article have so far remained open to
interpretation and the use of comparison has remained unsystematic.
General principles of law complete the entirety of international law
formed by contracts and customary law. They offer a possibility to deal
with such subject areas of international importance that have not yet
been thoroughly regulated by the norms of customary law or
international agreements. Principles that are included in the national
legislation of all or most States can be considered generally recognised
legal principles; in other words, knowledge acquisition of some sort by
comparison of laws is inevitably needed. On what other grounds could
any legal principle be claimed to be common to all if not on grounds of
some kind of comparison?
In public international law, general legal principles referred to in the
article have been of importance when problems with the relation of
international organisations with regard to their own employees have
arisen. For example, good faith (Latin bona fides) and hearing both of
the parties (Latin audiatur altera pars), which was the issue in the

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above-mentioned Transocean case, have been among the principles
applied.
To genuinely understand customary international law, one has to get
acquainted with practices applied by States; then it is possible to give an
answer to the question: when can a custom be considered binding
international law or when is a custom ‘a constant and uniform usage’?
Only when States act in a particular case recurrently in a particular way,
which is considered binding also in international law, is it a question of
customary international law with clear normative significance. On the
other hand, it has to be noted that when a particular practice is
considered part of customary law, every State is not invariably required
to follow the practice. Albeit, general acceptance of a practice is
sufficient if behaviour deviating from the practice is considered to be
against usual practice (Latin opinio iuris).
It has to be also noted that if departing from the practice is frequent and on a large
scale, the case might well be that a new practice is being formed. The new practice
can then gradually replace the old practice as part of customary international law. An
example of a practice that is so far debatable but which may still become accepted is
so-called peace enforcement. In practice, the UN has given its forces more extensive
authorisation than is used in peacekeeping in a situation where peace has not yet been
restored. Grounds for extended application of military force have been found from
the provisions of the Charter of the United Nations.

Perhaps the best-known example of customary international law is

humanitarian law. International humanitarian law (or laws of war) refers
to law with which an attempt is made to ease the effect of armed
conflicts. The purpose is to regulate the methods and means of warfare.
In defining these norms, court judgments and writings of leading experts
are used as subsidiary sources of law.
In the last few centuries there have also been successful attempts to
codify customary international law into international agreements. In this
way disputes on the contents of customary law are alleviated and States
perhaps become more willing to involve provisions that they have
themselves been explicitly approving. Distinctions are difficult to draw
when it comes to customary international law. Sometimes the issues of
the tradition and principles of international law can become intertwined.
In the by now classic ICJ case on Fisheries, Norway tried by means of a law to draw
its limit of territorial waters in a way that the UK considered to be a violation of
international law; it exceeded the limit of three nautical miles, which the UK
considered to be the limit in international law.24 However, there was no certainty

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about the validity of the three nautical mile norm, and Norway argued for special
protection of the coastal fjord region. The ICJ found that the Norwegian law on the
matter was not contrary to international law, although it violated the practice of
international law (the ICJ was sceptical about the source of law value of the custom),
because there were in the Norwegian solution—in any event—special grounds that
were considered reasonable (principle of equity).

In other words, comparison of laws is a useful method if we want to find

out generally what the concepts and institutions of customary
international law are made of. In both cases mentioned, comparison
starts with the assumption according to which there are included in the
written law or legal practice of different countries more general
supranational principles of law, which it is possible to utilise when
looking for the contents of international law. For example, analogies
from the national system to the international can be used in
interpretation. However, when principles found from national legal
systems are applied in international law, the filling of gaps in law has to
be performed with a certain caution, and the aim must be that the
national solution fulfils the requirements of international law.
In this connection we can mention also the WTO, the World Trade Organisation,
whose objectives include solving disputes in the field of international trade. The
WTO attempts to solve disputes in international trade relations on the basis of a
special conciliation procedure. The WTO has developed a common legal basis for
solving disputes because the solutions made by the WTO leave considerable scope
for interpretation. It is a question of a novel lex mercatoria or customary commercial
law that crosses borders and includes, for example, international arbitration
agreements and the practices of liability distribution that are in fact observed in
international contractual situations. When judging questions concerning
proportionality, necessity and balancing comparative law may be a helpful tool
because these legal terms, which are crucial in the WTO system, may have different
meanings in different systems even though they are apparently (linguistically)
identical. Comparisons are helpful for structuring and rationalising the process of
interpretation of WTO rules. Moreover, sometimes the rules and principles have been
borrowed and distilled from national legal systems.25

The basis of the acceptance theory, ie opinio iuris (the sense of legal
obligation, Latin opinio juris sive necessitates, ie ‘an opinion of
law/necessity’), on the iuris that the practice that is generally accepted
can become a binding international law is probably not so weak a
criterion as it might at first seem. It simply requires sufficiently wide
acceptance among States, in which case it can turn into customary
international law. Hence, it also binds the States which themselves have

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not accepted the custom. The most important function of opinio iuris
could be that it prevents practices that are generally unacceptable from
turning into customary international law. From the point of comparison,
essential here is the fact that the behaviour of different States in the
matter in question has to be comparatively studied before it is possible to
claim that a particular custom is generally accepted.
The argument that a practice is sufficiently widespread and strong is,
unavoidably in the end, based on comparative study. And even then it is
not an evident thing that opinio iuris exists: for example in the North Sea
Continental Shelf Cases, the ICJ held that States’ ‘frequent or habitual
performance of certain actions does not, by itself, establish opinio
iuris’.26
We can detect similar dimensions in the sphere of Islamic law where
comparative law also has practical legal effects and functions. The
significance of comparative law is due to the supranational nature of
Islamic legal culture and the fact that enactment and application of
modern law has to be coordinated with Islamic law. It is essential to
compare modern law and Shari’ a law (in Arabian ‘the path to water’) in
order to be sure of their compatibility. It is a question of making
interpretative constructions in which practices of not only the schools of
Islamic law but also different States that belong to the sphere of Islamic
culture are viewed. In practice, the importance of comparison is also
underlined by the fact that fields regulated by modern law are
considerably more extensive than those of Islamic law, where the scope
of regulation that Islamic law covers directly is mainly limited to
questions of family law and certain parts of criminal law. It is rather a
question of harmonisation related to the way of thinking and basic ideas
of Shari’ a.

E. Other Dimensions

Above, particular attention has been paid to European law and public
international law. Already for a long time there have been actors other
than the European ones, such as, for example, the above-mentioned
WTO. In this connection we can mention the International Institute for
Unification of Private Law (Unidroit), which is important from the point
of view of comparative law and is an independent intergovernmental
organisation. Its aim is to investigate the needs and methods with which
it is possible to modernise, standardise and coordinate private law,
especially international commercial law. Unidroit was founded in 1926

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and initially operated as an auxiliary organ of the League of Nations. In
1940, it restarted its operation. The membership was limited to States,
the number of which is at present 63.
The Member States of Unidroit are from five continents and represent
different legal, economic and political systems as well as different
cultural backgrounds. Unidroit has developed for international
commercial contracts principles which are model rules concerning the
sale of goods and the offer of services. With these instruments standards
have been created which legislators in different parts of the world have
used as models for their own regulations. In addition, model rules have
been made available for parties to different types of commercial contract,
when they have not been able to name the model rules as the law that is
directly applicable to a particular clause of their contract. In such cases
reference to Unidroit standards has been included in the contracts; it is a
question of a kind of complementing regulation. Unidroit represents soft
international legal harmonisation, a kind of new lex mercatoria that
concentrates on certain legal problems. And it has used an integrative
comparative approach as a tool for reaching it aims.

VI. PRACTICAL V THEORETICAL APPROACH

In many academic disciplines the practical and theoretical are rather
sharply distinguished from one another. In comparative law, however,
sharp demarcation does not seem to stand on firm ground. Occasionally,
the results of academic comparative law can as such be used to serve
practical purposes. In turn, sometimes academic research can benefit
from information produced for practical purposes. This means that these
two basic comparative interests cannot be completely separated from one
another. Yet, we can say that the purpose in the practical study approach
is comparison that directly serves legal policy and the drafting of
statutory law or judicial decision-making. In it, an attempt is made by
means of comparing legislation or precedents to create a sufficient
knowledge base on which a new government bill, legislative amendment
or foreign inspiration for a problematic legal interpretation can be based.

A. Practicality

Practicality refers to something which is governed by practice rather than

theory. This feature has normally been a part of the comparative law

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approach: comparing has been concerned with something deemed as
practically useful. Comparison may be part of legal problem-solving ‘as
a tool of construction’ by means of which it is possible to attempt to fill
gaps in the law/legal system. This kind of problem-based comparison is
not necessarily limited only to legal culture, although the best-known
example is from common law.
The example to which modern day comparative law literature often refers is the
famous decision in White v Jones by the House of Lords. In that case arguments
formed by means of comparative law were used in the construction of the decision.
Lord Goff remarked on the matter as follows: ‘the question is one which has been
much discussed, not only in this country and other common law countries, but also in
some civil law countries, notably in Germany’.27

In the UK, reference to foreign law is not often direct; instead, foreign law is utilised
by means of the literature on comparative law, as for example in McFarlane v
Tayside Health Board, where the House of Lords referred to Continental European
precedents, the ius commune casebook (Casebook on Tort Law) and other
comparative literature.28 So, common law seems to be capable—independent of the
way of reference—of making use of the experiences in other legal systems. The basic
idea appears in R v Kingston where Lord Mustill stated: ‘In the absence of guidance
from English authorities it is useful to inquire how other common law jurisdictions
have addressed the same problem’.29 This way of thinking recognises the legal-
cultural similarity of common law systems, although of course there are differences
between different countries.

However, attitudes in the common law world vary. In the judicial culture
of the United States the attitude to the use of comparative arguments has
generally been quite negative, because the mentality in their legal culture
is extremely nationalist. In the words of Antonin Scalia, who is a
prestigious conservative judge in the Supreme Court of the United
States:
We judges of the American democracies are servants of our peoples, sworn to apply
(…) the laws that those peoples deem appropriate. We are not some international
priesthood empowered to impose upon our free and independent citizens supra-
national values that contradict their own.30

For a comparatist, it is curious how Scalia automatically assumes the

special nature of American legal culture because ‘the values of others’
are not like ‘their own values’. (Drawing a conclusion like that would
require comparison, which Scalia is lacking—in other words, he simply
assumes that there are differences.)

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Scalia undoubtedly supports a nationalistic legal idea, according to
which judges shall be faithfully and strictly bound to the law that is in
force in their State—ultimately the Federal Constitution. According to
him, this means that courts in their decision-making are not allowed to
refer to nor even to look for support or inspiration in arguments of
comparative law. But, it is not only about Scalia. It is more extensively a
question of the idea of dissimilarity of American culture and of
emphasising the thesis of individuality in the field of legal culture. It is
fair to note that this thesis is controversial even in American legal
culture: not all American jurists agree.
On the other hand, it can be stated that attitudes in the United States have not always
been this reluctant. In the renowned Miranda decision by the US Supreme Court on
the rights of the arrested person, the famous Chief Justice Warren stated: ‘The law of
the foreign countries described by the Court also reflects a more moderate conception
of the rights of the accused as against those of society when other data are
considered’. The law of foreign countries constituted a comparative supporting
argument in the forming of the preliminary ruling. By means of comparison (looking
at foreign systems) the underlining principles of the United States’ own law were
specified and supported, ie the Court did not use foreign law as a source of law but
rather as a source of judicial inspiration.31

In practical comparison the aim is to instrumentally benefit from foreign

rules, legal principles or established legal practices either as such or
when applicable as in the above-mentioned cases of the International
Court of Justice and the EU Court. Also the European Court of Human
Rights has to be mentioned in this connection because it has often used
comparative arguments in its decision-making. The fundamental starting
point is obvious: the reason for the practice of practical comparative law
is, first, in obtaining practical aims, ie in problem-solving. The need for
practical comparative law is easy to justify by the division of labour and
the role that has been given to the doctrinal study of law in this division,
in the case of courts through the assumption of justified legal reasoning,
and in legislation by the attempt to create better regulation. Furthermore,
private international law is a good example of practically oriented
comparison that has a practical legal interest in problem-solving.
Now, practical comparative law settles for a lower methodological and
theoretical standard than the more demanding comparative law research,
which seeks not only to understand but also to explain. In practical
comparative law the aim is not to study foreign law at the level of legal
culture, but to get acquainted with the legal texts of foreign countries and

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the surface of their legal system. And the idea of private international
law about ‘authentic interpretation’ of foreign law remains a dream in
most cases. On the other hand, practical comparative law can also have a
connection with the doctrinal study of law, in which case the aim is to
solve common problems with interpretation related to the application of
domestic law on the basis of foreign examples. In such cases, however,
direct argumentation concerning the content of domestic law cannot in
most cases be done; instead, the comparative observations are more like
additional or persuasive argumentation.
Practical comparative interest is often characterised by a close
connection with immediate political objectives behind legislation. In
legal history one of the best-known examples is the Napoleonic Code
civil. In the nineteenth century, it became a kind of superbly popular
legal export item. The Code civil was adopted in several countries, not
only in Europe but also in South America. It is worth noting, however,
that this codification was by no means a purely French innovation. It is
partially based on the older European legal tradition, ie ius commune
whose roots again are found in the Roman law of late-Antiquity and the
French regionally differentiated customary law (French pays de
coutume) from the end of the eighteenth century.
From the history of constitutional law we can present as an example of practical
comparison the Japanese Meiji Constitution of 1889, which was directly copied from
the Constitution of Prussia. Another example is the Constitution of Russia of 1993
into which the Constitutional Court system was adopted as an institution—with some
modifications—from the German 1949 Constitution (Grundgesetz). The Swedish
Ombudsman institution has been borrowed by dozens of systems in different
modified versions of the original.

For example, in the guide for drafting government bills in Finland

(HELO, 2004), which is widely used in Finnish law drafting, the starting
point is that there should be sufficient information on ‘foreign legislation
related to the matter’ in the proposal.32 In the practical survey, foreign
law should be clarified also so that corresponding projects, either already
in force or in preparation, particularly in the Nordic countries and the
Member States of the European Union, are presented. Comparison has to
be followed up if the government proposal contains solutions that have
been influenced by foreign models.
According to the HELO Instructions:
the Bill should contain information on foreign legislation to the same point, as well
as pending legislative projects in other countries … the purpose of this information is

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to provide the reader with an outlook to various legislative solutions to the same
problem, a mention should be made of whether the foreign examples have had an
effect on the solution reached in Finland.33

At its best this kind of comparison is competent Auslandsrechtskunde—

at its worst it is superficial description on the basis of the scarce English
language material that is easily found on the Internet and which is
sometimes of dubious quality. Often the fault is not with law-drafting
personnel performing the background study but is due to political
urgency and scanty resources.
The connection between comparative law and practical aims and goals
is explained by comparative law’s capacity to offer for solution
possibilities that exceed the horizon of experience that there is in a single
legal system. For example, in the case of courts, at its simplest the whole
system of jurisdiction is based on the principle that courts know the law
(Latin iura novit curia). So, by means of comparative law it is possible
to enrich and extend the storage of legal ideas and innovations that is
available for those who develop and maintain the legal system. In this
respect comparison, that is a result of a practical comparison, also
enables efficient search of ‘better’ or at least different solutions. Another
common reason is the need to fill the gaps.

B. Theoreticalness

Usually, theoretical refers to things which relate to general principles or

ideas rather than the practical use of those principles or ideas. However,
in comparative law theoretical does not mean the same as hypothetical,
ie something which exists only in theory. Yet, the actual state and role of
scholarly comparative law in the development, assistance and criticism
of legislation, normative customs or supranational court decisions has
remained rather modest. This, however, is not necessarily due to the fact
that there would not be the desire or ability to engage in comparative
research. Mostly it is a question of the timetables being too tight and the
personnel resources available in law-drafting too small. The same
problems of course apply to drafting the legislation in general, not only
to comparison. As to courts, urgency and the piling up of cases are the
problems preventing time-consuming comparative research, which aims
for deep-level understanding and explanations.
The theoretical research implies that research serves theoretical
interests and that the amount of legal knowledge is increased. The

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theoretical approach attempts not only to search and locate differences
and similarities in the positive law, cases or doctrines studied, but also to
explain their reasons. In addition to how, also why is a question that
needs an answer. Here a big step is taken over and past the knowledge-
interest of the private international law: to solve a problem by applying
law is different from understanding and explaining why there is a
problem at all.
It is a question of the researcher studying foreign legal order to examine questions
that are basically theoretical or to systemise law structurally, its concepts and models
in the background. An example of the latter is the work Bringing in the People by
Markku Suksi on the forms and practices of the referendum.34 There a referendum
typology was constructed, which meant that this constitutional institution was
theoretically typified into idealised types. By means of the typology that was created,
the study material was analysed for a more profound further study. In the voluminous
book about the Europeanisation of Nordic property law written by Johan Sandstedt,
two different legal-cultural approaches to ownership were studied: the substantial
way to emphasise ownership as a whole and the functionalist way to break ownership
into different functional relations.35 Sandstedt looks at and compares the Nordic
approach with the Continental approach. The conclusions made by Sandstedt
challenge the traditional Nordic understanding of property law in a way that is based
on the settings and ideas of comparative law.

However, there are some genuine differences between interests. In short,

theoretical comparative law cannot be immediately justified by practical
reasons. The desire to understand and explain differs inevitably from the
desire to solve legal problems. On the other hand, it is difficult to think
of such a comparative law study that would not have some relevance
from the point of view of legal practicalities. Perhaps some utterly
postmodern legal-theoretical comparison can have results that are
difficult to utilise practically. And it deserves to be underlined that the
benefits from comparative legal history are not often instrumental.
Although the theoretical approach clearly aims at increasing the
amount of knowledge, it can also offer material for the improvement of
the knowledge basis for comparison that is carried out for legislative
interest. The theoretical approach is based on the idea according to which
not even the national legal system is (as far as knowledge is concerned)
an autonomous entity that is separate from other legal systems. Legal
systems of other States too may be using legal approaches/socio-legal
solutions, which are built around a bundle of legal thoughts that may be
of the same type. In theoretical comparison, legal problem-solving of this
kind can be theoretically examined, and hence, therefore, the content of

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the basic solutions in one’s own legal system can be more clearly
perceived. The foreign law acts in such cases as an intellectual mirror for
one’s own law or, as the German saying has it: ‘im Fremden Spiegel
sehen wir das eigene Bild’ (ie in a foreign mirror we see our own image).
As demonstrated above, it is obvious that it is not possible to fully
succeed in keeping the practical and theoretical comparison interest
apart. Theoretical comparative law can also use a normative approach,
which is typical of a practical approach (eg a provision of public
international law). In the same way integrative and contradictive
comparison interests are inevitably approximate basic classifications that
are partially overlapping. It is a question of the basic orientation in the
research interest, ie what is the aim of comparison (why comparison is
carried out at all). It is useful for the researcher to recognise their own
basic orientation because it has an impact on the type of methodological
choices that are sensible and justifiable to make.

VII. PEDAGOGICAL—COMPARISON IN
TEACHING AND LEARNING LAW
Comparative law pedagogics refers to the art of teaching, ie it concerns
the principles of teaching comparative law and foreign law. However,
comparative law as such is also a method used in legal teaching. The
pedagogical interest at the base of comparative law is related to
acquiring better understanding of one’s own legal system and to the
development of a critical approach to one’s own law. Both these
dimensions naturally reduce often implicit ethnocentric attitudes and
facilitate non-national research and the conception of law. In a world that
is more and more vehemently internationalising, such knowledge that
contributes to the understanding of the views and legal concepts of
others is required.
Basically, it is a question of an ability to understand foreign law and
legal culture in the form it takes in the basic assumptions and
understanding of others. It is a question of an ability to make conclusions
that are at least reasonably correct in the sphere of foreign law, as well as
legal thinking in general and in the legal language that is typical of a
particular foreign legal culture. There is a distinct difference from private
international law, where the aspiration for authentic interpretation does
not assume a committed attempt to understand and explain the cultural
social interaction between law and the human being.

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The further apart the legal systems in question are in a legal-cultural
sense, the more significant a position the knowledge of comparative law
(or foreign law in general) assumes. This is illustrated, for example, by
the collision of Islamic and Western concepts of justice: discussion on
mere principles is difficult enough because there are such significant
differences in basic concepts and approaches to law. In such cases
knowledge of the concepts and origins of Islamic law is cognitively and
often also strategically vital for a Western lawyer. Discussion and
making one’s own points of view comprehensible become easier with
contextual knowledge. Islamic legal culture is one of the major legal
cultures of the world, and general knowledge about it cannot be anything
but useful for a Western lawyer: merely the existence of already
relatively numerous Muslim populations in the non-Muslim countries
causes a need for knowledge. When the cultures of the people meet, then
also their legal cultures meet. This meeting is not necessarily conflictual
as to its nature. Islamic banking is but one example showing that
reconciliation between legal cultures is not impossible.
Islamic and Western law seem to be legal-culturally conflicting although in the
reality of the world’s law overlapping and hybridity is more likely. Sometimes
hybridity can be seen in the positive law. For example, in the Ghanaian Constitution,
Acts, decrees and corresponding norms that are on a lower level than Acts, the
common law that was in force until 1992 and the customary law of Ghana are
recognised as sources of law. Just as in the common law culture, the judgments
passed in superior courts have a great significance as precedents. Customary law on
the other hand refers to traditional law and Shari’ a law, which are followed by ethnic
groups in different regions. The judicial organisation of a Western style is
complemented by institutions that are applying law and are considered to belong to
the sphere of the customary law of Muslim judges and chieftains’ councils. The
whole entity represents clear intra-State legal pluralism based on statutory law, too.
Moreover, it is not only about internal pluralism in Muslim countries but also about
the migration of people and their ideas about law.

It is, for example, considerably easier for civil servants who become
involved in European administrative law to operate successfully as part
of a multicultural legal environment if their legal knowledge is not
limited to their own legal system. The judge who is applying the marital
right to property to a Muslim family benefits from knowledge about
Islamic law: they understand argumentation that is based on Islamic law
better and are at least to some degree capable of appreciating the
significance of such arguments from the point of view of the person who
presents them (this does not mean accepting those arguments or granting

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them a role as sources of law). Foreign legal cultures can be taken into
consideration as evidence concerning the beliefs held by parties, even if
they would not be given legal significance as a source of law.
In addition, the study of comparative law material (foreign rules,
doctrines, cases, ideas etc) has a significant role in the modern jurist’s
ability to think. Getting acquainted with the law and different legal
cultures of other countries improves the ability for first-rate legal
thinking, and argumentation becomes more versatile when different
points of view are taken into consideration. If students are offered the
models of one country only, their knowledge capacity for versatile
argumentation weakens. Comparative law opens up legal thinking but it
certainly does not mean that foreign law would gain the position of
source of law as such.
From the point of view of law, teaching comparative law may have a
key role for the legal mind. An effective law curriculum of today suited
for globalisation is one which can stimulate students to learn legal
thinking, not only the legal rules of a country. Comparative law and/or
foreign law and even an approximate knowledge of different foreign
approaches to similar types of questions may be regarded as a valuable
tool for the construction of a pluralistic legal mind, which is prepared to
look over the borders of legal systems. Non-national laws, customs and
legal doctrine are good material for learning for anyone who seeks to
cultivate a pluralistic legal mind for the twenty-first century.
Comparative law material and foreign language studies are of great
pedagogical importance. And it is noteworthy that a particularly
profound study of foreign law is not needed here: if a student gets
acquainted with the history as well as general grounds and typical
features of, say, the common law by means of comparative law literature,
it becomes easier to approach the law of Great Britain, Canada, New
Zealand and the United States as well as the law of all these countries
that have been influenced by the common law for one reason or another.
The significance of non-national legal general knowledge should not be
belittled in the present-day world. The obvious fact that law and legal
ideas travel when people travel should also be taken into account: the
global world of law is also a world of migrating law.
The objectives of pedagogical comparative interest are better realised if comparative
law is not given a minor role or labelled as a curiosity in legal academia, but if it is
instead included from the very beginning in the study of national and supranational
law. This applies both to public and private law. There are strong grounds for this in
the very nature of law, which has never stopped at national borders, or as Professor

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Heikki Pihlajamäki argues: ‘Of its basic nature, law is an international phenomenon,
not national; and by political decisions it can be confined only to a certain extent’.36
Legal norms and doctrines travel with the salesman just like technical inventions; it
is almost impossible to stop them because a human being is instinctively interested in
new things, and our capacity to adapt is considerable. Sceptics undoubtedly have a
point when they doubt things like legal transplants’ simplified assumptions of
similarity or legal convergence of European law, and yet, the reality of human
capability ought not to be denied: the legal-historical evidence is overwhelming.

It is, for example, considerably easier to understand basic institutional

decisions of constitutional law if one is acquainted with a number of
other basic models (British parliamentarianism, US presidentialism with
its separation of powers, French semi-presidentialism etc). In the same
way, several of the most central principles (eg the principle of
constitutionalism and the idea of public administration laid down by law
derived from that principle) are supranational by nature. Principles
adopted in different countries can be used to facilitate interpretation of
law and the theory of administrative law in other countries although the
principles in question would not be exactly the same. And this does not
concern only one field of law, but, for example, the Norwegian
application of the principle of rule of law can be perceived with more
insight if it is related to, for example, the German or English version of
the same legal basic idea: there are similarities and differences.
In the same way, for example, for the comprehension of contract law it
is of great benefit if one recognises the difference in the concept of a
contract between civil law and common law. There are differences in
attitudes to the basic legal-cultural factors: why is bona fides important
in Continental Europe but not so important on the other side of the
Channel? Why is a literal interpretation of contracts in favour in the UK?
Why are commercial practices of such a big significance for the British?
And so on.
What is said above does not, however, mean that it would be possible
to lump together, say, all the Member States of the European Union and
to talk about a reasonably uniform European contract law on the level of
legal maxims, for example. This is verified by a very massive work that
is based on comparative law and earlier operations of the Lando
Commission and which has been published in three massive volumes,
namely The Commission on European Contract Law, Principles of
European Contract Law I & II and III.37 Later developments that led to
CFR prove that comparative law has the ability as a supranational
constructive method to promote harmonisation. To what extent

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convergent legal texts can create coherent legal culture is quite another
question; a question of politics rather than law. In any case, it is useful to
grasp that also projects like this are bound to contribute to learning new
forms of legal thinking that are not otherwise available to the internal
gaze of the national legal doctrine.

1 ‘Wat is eigenlijk de vergelijkende meerwaarde van dergelijke exercities?’, M

Adams, ‘Wat de rechtsvergelijking vermag. Over onderzoeksdesign’ (2011) 60 Ars
Aequi 198.
2 N Jansen, ‘Comparative Law and Comparative Knowledge’ in M Reimann and R
Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford, Oxford
University Press, 2006) 305–38, 310.
3 VV Palmer, ‘From Lerotholi to Lando’ (2005) 53 American Journal of
Comparative Law 261, 287.
4 The original programme is from 1987 (The Trento Manifesto containing five core
theses) and it was signed by eight Italian comparatists; see R Sacco, ‘Legal Formants:
A Dynamic Approach to Comparative Law (I)’ (1991) 39 American Journal of
Comparative Law 1.
5 ‘den jurist som endast har studerat sin egen rättsordning, inte kan ha fått en full
förståelse av denna rättsordning’, M Bogdan, Komparativ rättskunsp (Stockholm,
Norstedts juridik, 2003) 28.
6 K Tuori, Ancient Roman Lawyers and Modern Legal Ideals: Studies on the Impact
of Contemporary Concerns in the Interpretation of Ancient Roman Legal History
(Frankfurt am Main, Vittorio Klostermann, 2007). Tuori highlights various implicit
assumptions that have actually guided the so-called ‘romanistic legal science’.
7 O Kahn-Freund, General Problems of Private International Law (Leiden, Sijthoff &
Noordhoff, 1980) 193.
8 HE Yntema, ‘Comparative Law and Humanism’ (1958) 7 American Journal of
Comparative Law 493, 498.
9 See HP Glenn, Cosmopolitan State (Oxford, Oxford University Press, 2013).
10 E Hondius, ‘Rechtsvorming’ (2006) 55 Ars Aequi 327. The subtitle of this article
is ‘een blijk over de grenzen’, ie look over the border.
11 For the main features of ius commune and how it evolved into legal doctrine in
thinking and writing, see F Wieacker, A History of Private Law in Europe, trans T Weir
(Oxford, Oxford University Press, 1996). The original German version, Privatrecht der
Neuzeit, was published in 1967.
12 Koschaker considered Roman law essential in the attempt to try to rebuild a
common European legal culture; see P Koschaker, Europa und das römische Recht
(Munich, Verlag Biederstein, 1947).
13 M Hesselink, ‘Non-Mandatory Rules in European Contract Law’ (2005) 1
European Review of Contract Law 43, 62 (he continues: ‘And from which historical
periods should we borrow our rules for the future?’).
14 29/69 Stauder v City of Ulm [1969] ECR 419.
15 Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle
für Getreide und Futtermittel [1970] ECR 1125.

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16 Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727.
17 Case 17/74 Transocean Marine Paint Association v Commission [1974] ECR
1063.
18 Case C-54/05 Commission v Finland [2007] ECR I-2473.
19 Case C-353/04 Nowaco Germany GmbH v Hauptzollamt Hamburg-Jonas [2006]
ECR I7357.
20 See also eg Case 55/87 Moksel Import und Export (1988) ECR 3845 at [15]; Case
268/99 Jany and Others (2001) ECR I-8615 at [47], and Case 188/03 Junk (2005) ECR
I-885 at [33].
21 Underlying ideas on the basis of PECL, see O Lando, ‘Principles of European
Contract Law: An Alternative or a Precursor of European Legislation’ (1992) 56 Rabels
Zeitschrift für ausländisches und internationales Privatrecht 261.
22 Draft Common Frame of Reference (DCFR). Full Edition. Principles, Definitions
and Model Rules of European Private Law. This massive (6563 pages) collection is
edited by the Study Group on a European Civil Code, and Research Group on EC
Private Law (Munich, Sellier, 2009).
23 See eg G Dannemann and S Vogenauer (eds), The Common European Sales Law
in Context: Interactions with English and German Law (Oxford, Oxford University
Press, 2013).
24 Fisheries Jurisdiction (United Kingdom v Norway), Judgment (18 December
1951) ICJ Reports 1951, 116.
25 See eg D Palmeter, ‘The WTO as a Legal System’ (2000) 24 Fordham
International Law Journal 444.
26 Germany v Denmark and the Netherlands, Judgment (20 February 1969) ICJ
Reports 1969, 3.
27 [1995] 2 AC 207.
28 [2000] 2 AC 59.
29 [1995] 2 AC 355.
30 A Scalia, ‘Commentary’ (1995–96) 40 St Louis University Law Journal 1119,
1122 (speaking extra-judicially).
31 Miranda v Arizona 384 U.S.436 (1966).
32 Available also in English: Bill Drafting Instructions (Helsinki, Ministry of Justice,
2006).
33 ibid 14.
34 M Suksi, Bringing in the People—A Comparison of Constitutional Forms and
Practices of the Referendum (Dordrecht, Martinus Nijhoff, 1993).
35 See J Sandstedt, Sakrätten, Norden och europeiseringen—Nordisk funktionalism
möter kontinental substantialism (Stockholm, Jure Förlag, 2013).
36 ‘Oikeus on perusluonteeltaan kansainvälinen, ei kansallinen ilmiö, ja sitä voidaan
kahlita poliittisin päätöksin vain tiettyyn rajaan asti’, H Pihlajamäki, ‘Vertaileva
oikeushistoria muuttuvassa maailmassa’ (2009) 38 Oikeus 420, 423.
37 Ole Lando and Hugh Beale (eds), The Principles Of European Contract Law,
Parts I and II (The Hague, Kluwer, 2000); and Ole Lando, André Prüm, Eric Clive and
Reinhard Zimmerman (eds), The Principles of European Contract Law, Part III (The
Hague, Kluwer, 2003).

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6

Basic Strategies in Comparison

I. INTRODUCTION
COMPARATIVE LAW RESEARCH contains several phases, ie the
comparative law approach has to be conceived as a process. Comparative
research is a chain of separate studies where the overall comprehension
of the study topic is a gradual (hermeneutical) process. The comparative
process can be conceived of as a series of operations, which are carried
out by the comparatist and which in the end have a final outcome, ie a
publication or a thesis.
Usually, the scientific study process has a specific predetermined
course where getting acquainted with the study subject proceeds via
intermediate phases (data collection, description, analysis, conclusions
etc) to reporting on the study in the form of a publication. In comparative
law, however, study is practically never a one-way process that proceeds
like a train. Occasionally there will be setbacks, and the scholar has to
backtrack and either to reinterpret or dismiss the idea they have earlier
assumed. In contrast, the application of foreign law in court is inevitably
a more one-way process due to the internal normative viewpoint and
timetables: courts are obliged to produce answers to legal problems put
to them. Comparative law as a form of non-national legal research rests
on different assumptions. Accordingly, engaging in comparative law
teaches methodological humbleness—getting disheartened is not an
option and the energy caused by annoyance is not approved of and
should instead be channelled into new attempts.
By and large, comparative law research follows philosopher and great educational
thinker John Dewey’s (1859–1952) pedagogical basic idea, ie ‘learning by doing’.

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This kind of pedagogy refers to an experiental way of learning. This kind of learning
involves learning through experience and reflection on comparison in which the
learning process of the comparatist as an active individual is at the forefront.
Experiental learning does not mean that the theory and methodology of comparative
law would be useless, but it does point out that the process of comparing laws is
always also about learning-by-doing. A positive side-effect here is the
demystification of the research process—comparative research is not a mysteriously
cumbersome challenge which is necessarily confusing and intimidating. One of the
underrated features of comparative law methodology is its ability to promote not only
quality of research but also to encourage positive attitudes towards research and
experiental learning.1

It should also be noticed that the phases in the research process are
interactive. This means that the next phase of the process can have a
specifying effect on the previous one or it can change it altogether.
Comparative study is in continuous movement by nature. By reading and
interpreting source material, acquiring additional information and
comparing material from different sources we can make advances in
charting the differences and similarities of the systems compared and in
the attempt to give them rational explanations. And this process also
includes personal reflection of the comparative research steps taken by
the comparatist themselves. Different phases alternate, and occasionally
returning to the basic assumptions is needed. In this sense the work of
the comparatist is rather similar to that of the national doctrinal scholar
even though the epistemic viewpoints on law are different. The
philosopher would talk about a hermeneutical circle of comprehension
and the pedagogue of a learning process, ie experiental comparative law
learning.2
All study processes contain phases where selections, limitations and
clarifications are needed for the process to continue. The comparatist too
has to make choices that determine how the research proceeds. One has
to decide which legal systems (or other large-scale organised
normativities) to compare and which elements are selected for
comparison. What is the data like (extent/depth) and which factors
influence its acquisition process? How is the material acquired? How
good are the scholar’s own language skills? Is field study needed or is it
possible to manage the project by using only documented material that
already exists? The choices made depend on the aims of comparison as
well as on the comparatist’s own knowledge-interests, ie there is no one-
size-fits-for-all methodology. If one wants to study the customary law of
an indigenous people, the Internet naturally is not a sufficient source of

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knowledge. Or if one seeks to have knowledge about preparatory phases
of statutory law in a ministry, then one does not interview indigenous
tribe elders. A more practical point is that the availability of sources—
not only their comprehension—is also of significance in this respect.

A. Method—Methodology

Learning is an important part of doing comparative law, but even

learning has to start from somewhere. A lawyer, and not even a
comparative lawyer, is never genuinely in a tabula rasa situation.
Comparative law as an activity that is goal-oriented and that pursues new
knowledge cannot start from a completely haphazard starting point, but
depending on the study approach, methodological choices concerning the
acquisition and use of study material have to be made both before and
during the study. There is a distinct difference here with regard to private
international law in which the court is in a different situation, because
procedural rules are domestic and are applied without choice as they are
the legally binding valid legal rules of a country.
In research, one of the fundamental characteristics is the systematic
nature of approaches and the desirability for as high a degree of their
justifiability as possible. It is essential that approaches that have been
chosen can be rationally justified and explained to others. Also the
comparatist needs a basic research strategy, which has been drafted in
advance by taking into account the goals of comparison and probably the
feasibility of the research results that are possible to obtain.
Method can refer to a very specifically defined scientific study approach in which
case methodology refers to a theory on such scientific methods. A method is in this
respect a particular way in which a chain of study steps are taken in a predetermined
way (Latin modus operandi). In natural sciences the exactness, the numerical
accuracy and predictability of the phenomena are emphasised. In economics,
modelling and statistical methods are heavily referred to. But, in legal study the
concept of a method and methodology are essentially more extensive and far less
exact as to their nature. Here, legal research does not differ from other cultural
studies or humanities.

Grounds for this kind of broad conception of method and methodology are found in
the word method itself because the word is actually formed from the Greek words
metá (μετά) and odós (οδός), which mean following a path or a certain route.
Combined these words form μέθοδος, ie a method. In comparative law a method
denotes all practices and operations by means of which pieces of information
describing phenomena are collected and the justifiable rules on the basis of which

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interpretations concerning the study topics are formed and argumentatively
expressed. Owing to the pluralisticity of law, it is also a question of a plural matter, ie
of methods. Plurality makes sense: many laws, many legal cultures and many legal
languages must also mean many methods.

It is owing to legal culture, the ultimate study object of comparative law,

that the method cannot be seen in a way that emphasises exactness,
which is the case in natural sciences and other disciplines that
extensively use quantified methods. In comparative law, method really is
a path to be followed. From there it follows that the methodological hints
and guidelines presented in this very book should be taken as tips on
how to walk the path. In the general methodology of comparative law it
is not possible to present a clear-cut methodology with accurate
demarcations for the simple reason that the study subjects and
knowledge-interests of scholars differ from each other.
Professor Esin Örücü, an expert on the theory and practice of comparative law, has
fittingly stated on the methodology of comparative law: ‘how this comparison is to
be carried out has no standard answer’. Furthermore, according to her it is not even
possible to speak in exact terms about the methodology of comparative law but of
‘methods employed in comparative law research’.3 Notwithstanding, in spite of the
restrictions it is possible to present some sort of methodological guidelines. The
possibilities, however, vary according to the different themes studied. According to
Professor David Bradley, comparative family law would pass for social science:
‘Comparative legal studies in this area involve applied political analysis: as such
comparative family law qualifies as a social science’.4

Notwithstanding, in comparative law the usual starting point is easy and

clear. Comparative law can in principle use any method as long as it is
possible to get answers to the questions that interest the comparatist. In
general, the research process in comparative law is hermeneutic, ie
understanding in nature, and it looks at different legal systems both from
the outside and from the inside. The hermeneutic approach aims at
understanding and interpreting the legally relevant behaviour of people,
legal culture or legal text and explaining the meanings involved in legal
language. This kind of approach is typical also in qualitative social
science and the humanities.
The fact that in comparative law the aim is to explain differences and
similarities that have been found does not make it any less hermeneutic:
it is a question of what kind of study process is used to explain legal
culture and what factors are taken into account. Hermeneutic explanation
becomes possible through comprehension since statistics do not replace

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the creative study process of the interpreter and the hermeneutical
viewpoint of the comparatist. Statistical data are useful and in most cases
underused in comparative law, but the comparatist must also remember
that no statistics explain why the judge feels tied to the doctrine of the
sources of law of their country or why certain legal institutions are so
peculiar if looked at from the outside (eg common law trusts and equity).
The basic strategies of comparative study can be divided by qualitative
criteria into two parts. Strategy here simply means a plan by means of
which aims set for comparison are sought. On the one hand,
methodological choices of a technical nature have to be made while, on
the other hand, strategic basic choices of a theoretical nature must be
made. They do not follow each other in strict chronological order but
more likely take turns during the study process. However, making this
difference is not always unproblematic because the theoretical and
technical aspects are often interrelated as has become clear above.
Professor Elina N Moustaira from Greece puts this well in her book
about Legal Influences in the Framework of Comparative Law:
The methods used or those that ought to be used are complicated because they are
activated in a variety of different levels (of research) and the higher the level, the
harder it is to distinguish methodology from epistemology and theory.5

B. Methodological Choices of a Technical Nature

The technical nature of the methodological choices made in comparative

law refers to their close connection with the study material (collected
data). The study material can consist of official material (statutory law,
precedents etc) only, of knowledge about the application practices and
customary law or knowledge of the attitudes and beliefs of the
professionals in law. In connection with strategic choices of a technical
nature, the scholar has to decide on matters that to a great extent
determine what the nature, coverage and method of acquisition of the
material are like. And these are questions that should be pondered before
the actual acquisition of material and knowledge.
In this connection, at least five different technical basic choices can be
told apart. During the study process these phases can alternate, and the
comparatist can end up changing the basic solution they had originally
made. Naturally the list is not exhaustive, but it probably covers the most
common basic methodological choices that sooner or later come up when
comparing laws.

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Technical-Methodological Alternatives
1. Micro/macro
2. Longitudinal/traverse
3. Multilateral/bilateral
4. Vertical/horizontal
5. Monocultural/multicultural

II. SCOPE—FROM MACRO TO MICRO

A. Comparison—Macro and Micro

In comparative law study a basic division between the micro-level and

macro-level is possible just like in economics. In economics, micro-
economics studies small economic units (individuals, enterprises,
individual lines of business) and the economic decisions made by them.
Macro-economics investigates extensive economic phenomena that take
place on the national or international level (business cycles, economic
growth, unemployment, international trade etc). On the macro-level the
point of view is more general than it is in micro-economics. A similar
basic distinction based on the level of study also applies to comparative
law. The micro/macro-dimension is related to the extent to which
different legal systems are compared, ie owing to its fundamental nature
it is a question of scale and focusing.
The distinction is defined, for example, by Professor Gilles Cuniberti
in his work about Great Contemporary Legal Systems: ‘On the micro
level it is possible first of all to compare certain institutions or special
issues …. On the macro level comparison focuses on the function of
legal systems and their fundamental features’.6
In micro-comparison the object of study is either individual legal rules
(or a legal rule) or individual legal institutions (or an institution). Legal
institution can in this context refer to two things. On the one hand, a
legal institution can refer to a positive law institution, such as a court,
administrative organ or a legal person such as a limited liability
company/corporation or a foundation. For instance, the notary institution
that operates in Continental Europe and is lacking in Nordic countries is
an example of a significant legal-cultural institution. On the other hand,
several different normative and operational legal institutions, such as
marriage, trusteeship, bankruptcy or transfer of guardianship are mostly
micro-level legal institutions.

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In micro-comparison, research can be aimed at legal rules (also
individual legal concepts), which regulate broadly the same thing and are
compared with each other. For example, comparative family law studies
the differences and similarities in the way in which different systems
deal with, for example, adoption, marriage and civil union/partnership,
marriage settlement and marital right to property, property of the
spouses, potential divorce, care and visiting rights of children and
paternity etc. Legal rules have to represent at least two different legal
systems, but the upper limit in the number of regulations or legal
decisions compared depends on the personal interests and the economic
work factors of the scholar and on the resources available (opportunity to
travel, timetable, availability of supporting personnel etc). In most cases
the comparatist should probably not gather too many study objects
because one can become lost in the depth of the analysis. In fact, as a
rule of thumb, it is often worth saying a lot about a little, not a little
about a lot.
In micro-comparison, provisions or judgments are legal solutions of a concrete nature
to legal problems. It can, for example, be a question of comparing norms that
regulate the position of a party in an administrative appeal. What do they have in
common and how do they differ? What is the reason for similarities and differences?
Do the systems under study have a separate organisation for administrative
jurisdiction or are the issues on legal rights in public administration solved in general
courts? Traditional micro-comparative study of legal institutions has been practised
in private law for quite a while. As an example we can mention the massive work
about marriage and divorce by British jurist William Burge.7 The extensive
comparative study of gifts by American Professor Richard Hyland is a more recent
example of an extensive and in-depth study of a single legal institution.8 The
majority of micro study has up until now concentrated on different sectors of private
law; however, public law comparisons are far more frequent these days than they
used to be.

In macro-comparison comparison takes place between legal systems or

even between legal families/cultures. Macro-comparison does not
concentrate on individual legal rules, institutions or concrete problems
and the ways by which to solve them; instead, the abstraction level of the
topics compared is higher. Comparison could for example be aimed at
issues that concern, for example, legislative methods, the style of writing
provisions, the branch of law systematics and the doctrine of legal
sources or even the style of entire legal systems, ie legal cultural-features
characteristic of them (see chapter nine).

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B. New or Old—Micro or Macro

In macro-comparison several different theoretical frames have been used

(more on this later). To begin with, comparatists debated about legal
families, but later on several other macro-constructions appeared
alongside them; the best-known of them being legal cultures and the
latest legal traditions. All of them basically concern the same thing: the
typification of legal systems into bigger groups according to their
characteristics. Macro-comparison has for a long time been at a
standstill, but in 100 years at least some progress has been made. In fact,
one of the large legal families of the twentieth century, ie socialist law,
has almost managed to disappear.
At the beginning of the twentieth century, race, nationality and culture were still
significant concepts and played a key role in the classification and typification of
different legal systems. For example, according to the influential classification made
by the prominent Swiss comparatist Georges Sauser-Hall (1884–1966) in 1913, the
legal systems of the world could be classified into the laws of the following: (1)
Aryan peoples (Indo- European peoples); (2) Semitic peoples;

(3) Mongolian peoples (main groups being Japan and China); and (4) uncivilised
(barbarous) peoples, including for example the law of Negroes (sic!) and the law of
Melanesians.9

Racist classifications like the one above have absolutely no place in modern
comparative law: racism is of its nature against the basic assumptions of comparative
law and the deep ethical commitments of study. A modern comparatist must not
practise intellectual colonialism or implicitly prefer the paradigms of their own
Western law to the solutions made in radically different legal cultures—fallacy of
superiority has no place in modern comparative law, no more than the feeling of
inferiority. Instead, one should aim towards a balanced research, which tries to study,
compare, explain and learn from different legal cultures.

It seems obvious that in the twenty-first century in particular, the nature

of macro-comparison has changed. The differences between legal
cultures are no more emphasised so much; instead, more attention is paid
to their similarities, and models are constructed on how different legal
traditions can live side by side in a peaceful relationship. Dreams about a
uniform global law that would follow Western legal culture have been
buried; pluralism is flourishing. The demarcation between micro- and
macro-comparison is all but clear as it is quite flexible. It is often
possible to use both points of view in a study so that they complement
one another in such a way that one of the approaches is chosen for the

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starting point for comparison. The micro-comparatist might have to get
acquainted with the history and general doctrines of foreign legal
systems in order to understand better how the individual rules and
institutions under study work as a part of the entity of the legal system
and legal culture. On the other hand, the macro-comparatist might have
to study individual norms or single cases to understand what significance
the general characteristics of the legal system being studied has on the
level of legal practice.
A good example of a classic work that has already been forgotten is the study by
Ernest Glasson (1839–1907) that was published in the late-1800s and is called ‘The
Civil Marriage in the Antiquity and in the Principal Modern European
Legislation’.10 In his study, Glasson divided marital right to property into categories
according to macro-principles by separating systems that had been influenced by
Roman law, systems that were immune to Roman law, ie common law, and systems
that combined ideas from Roman law and national laws. Glasson’s approach would
still today be a plausible method for connecting micro- and macro-comparisons: the
micro-approach is analysed on the basis of the division at the macro-level.

In the light of the above, one might be tempted to ask why in general
should the study of micro- and macro-levels be kept apart? Indeed, there
are no reasons for too rigid distinctions in a discipline so pluralistic as to
its nature. It is a question of the basic point of view or of a kind of angle
of incidence to comparative study where the question is of the
recognition of the comparatist’s own knowledge-interest. A micro-
comparatist can never completely exclude the macro-level from their
study, nor the macro-comparatist the micro-level. For example, the basic
nature of an Islamic marriage as an agreement between families can
easily remain an oddity if the comparatist does not know Islamic legal
culture in general. In the same way the rule of law in Western legal
culture remains insignificant if attention is not paid to what it means in
different application cases and what kind of ideologies and legal-
historical developments there are in the background. Most creatures in
the sea of law are like icebergs: only the top is easy to see, and most of
the mass is below the surface.

III. IN TIME AND SPACE—THE TIME DIMENSION

The comparative aspect concerning the longitudinal and immediate
(present time) dimensions is related to the issue of historical comparative

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law that was discussed in the previous chapter. This is a question of the
time dimension before/past—now/present that is connected to the
acquisition of the basic material for the study; in other words, if the law
being compared is in force (so-called valid law) or if there is included in
the comparison legal material that is no longer in force.
German comparatists and legal historians have already, for a while,
been talking about the fact that law exists simultaneously in two different
dimensions, which are impossible to keep apart. Law is simultaneously
in time and space (German Zeit und Raum). While a micro-comparatist,
in particular, is often interested in how a rule or legal institution works at
the present time, another comparatist with a more theoretical orientation
can also be interested in how the provision or institution in question has
earlier worked in other legal cultures. We can possibly talk about the
descent of law, genealogy of law or even the genetics of law (see chapter
ten).
In the ordinary setting of comparative law it is a question of
comparison that is related to the present time and where the interest is
not in first and foremost in the law of the past. When comparative law is
practical in nature, it is often also horizontal comparison because the
court or legislator which is aiming at socio-legal solutions is generally
not ex officio interested in provisions or the legal history of the past.
Longitudinal comparison, on the other hand, takes points of comparison
also from legal history and therefore its character is often more
theoretical and its nature is to focus on general knowledge. In the
longitudinal comparison (or comparative legal history if you prefer) one
or more legal systems in different periods of time are studied
comparatively.
According to most theorists of comparative law, the historical aspect
in comparison is particularly important, because in order to understand
the content of rules, principles and doctrines in a foreign legal system,
one has to know their historical development, too. Yet, knowledge of the
historical development is not necessarily related to theoretical
comparative law only because efficient use of legal innovations made in
another legal system may require knowledge of the historical
development of the norms and institutions under study. In the same way,
Juha Raitio, Professor of EU law, has emphasised the need for a more
profound understanding of EU law, so that when decisions of the EU
Court are evaluated, the circumstances and situation at the time of the
decision-making are taken into account.11 By means of the
contextualisation of recent history that Raitio is referring to, it is

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according to him possible to better understand also the substance of
practical legal issues of EU law. In other words, it is not a question of a
matter of curiosity or academic dandyism: temporal contextualisation
may be crucial for a normative and internal standpoint, too.
How about legal loans and borrowings? It is in fact easy to transfer
legal institutions and ways of thinking from one country to another by
means of statutory law but, and here lies the problem, it is impossible to
transplant the legal-political-social milieu. Legal culture that has been
formulated in the legal-historical process cannot be turned into an export
product. So, in practice legal transplants can result in a certain rejection
(unpredictable complications, disturbances and unexpected
consequences) in the legal system at the receiving end. This is the case
even if the adopted loan were modified and tailored to fit.

A. Transplants and Loans

The study of legal transplants (or transfers, transpositions, translations)

and legal loans as well as the copying of ideas or legal colonisation is a
research field where the connection between legal history and
comparative law is most clearly demonstrated. The follow-up of a legal
idea presumes understanding of its legal content (to some extent) in both
the legal system and the receiving court. In a certain way, it is a question
of a kind of detective work where the detective follows in the footsteps
of a suspect by means of indirect proof and the power of deduction. The
challenge is to hold the strings together and build out of them a
comprehensible narrative with a plot.
The well-known Scottish legal historian and legal comparatist Alan Watson, in his
classic work Legal Transplants, which was published in 1974, introduced the concept
of a legal transplant.12 In Watson’s theory it is important for a legal transplant to
have a historical connection between the systems or more precisely between the
regulations of the systems. In other words, it is not a question of a reception where it
could be specifically indicated what has been adopted from the foreign law, when the
adoption took place and how the moving actually happened. What is essential is only
the ‘relationship of one legal system and its rules with another’. By the process of
moving Watson simply meant the moving of a rule or a system of law (mainly
Roman) from one country to another.

It is useful to keep in mind that in the theory of legal transplants the

question was expressly of adoption of the central idea, not necessarily of
word-to-word copying. When on the basis of a foreign model a

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corresponding construction of one’s own law is moulded, it is possible to
say that foreign law has been borrowed and thereby the legal culture of
the receiving country has been affected. In this way the law of the United
States has had a significant impact on European systems in the legal
fields related to commercial activity from the mid-twentieth century (eg
leasing, factoring, franchising). The theme is of particular interest for
comparative law. Study on borrowings and legal transplants breaks the
idea of the nationality of law and its bonds to a system by pointing out
the reciprocal relations that cross these national restrictions. Here we can
quote the idea of Pihlajamäki:
global law consists of both national and international ingredients, both of which are
in a continuous and accelerating movement. To perceive this whirlwind of continuum
and interruption, a kind of legal supernova lawyers need them.13

The longitudinal study of comparative law is, basically, just the sort of
theoretical approach that in the quotation is referred to as perceiving the
legal supernova. However, engaging in a study like that is not a
particularly easy task for lawyers. For example, the criticism of the
transplant theory was severe from the very beginning. A famous
comparatist Kahn-Freund presented the best-known early criticism,
which turned out to be quite influential.14 He justified his criticism with
the significance of the social context of law. According to him, the whole
concept of transplant was out of place in the world of law, although it
was possible to refer with it meaningfully to a surgical operation in
which a kidney of one individual was transplanted to another. According
to the core of Kahn-Freund’s argument ‘we cannot take for granted that
rules or institutions are transplantable’.15
Now, if one looks at the idea of transplantation something seems to be
rather evident. It would be essential to observe the societal context of
law, or the result could be transplant rejection in the new system. In the
case of a legal loan it is influence that takes place in a mutated form.
Here is the thing: a mutated loan is still a loan although in some respect
it is a loan gone wrong. The success of a loan is not the same thing as
making a loan as such because one can certainly copy a rule or an
institution from another country, but whether it really works in the
receiving system is quite another question.
Later the transplant criticism swelled over its limits in the comparative
law discussion: in the 1990s critical comparatist Legrand presented his
relativistic view of the sheer absurdity of (mainly private law) legal

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transplants.16 Currently concepts like legal translation, legal transfer
and legal transposition are used. The great majority of comparatists
continue to use legal transplant either solely or in parallel to other
conceptualisations. Notwithstanding, it would seem that Watson’s
original concept has become rooted to the theory and terminology of
comparative law—in spite of its problematic nature. Altogether, it would
seem, the most severe criticism against Watson’s transplant metaphor has
been the idea of replacing it with the concept of legal irritant.
Discussion has continued, and for the concept of legal transplant various
replacements have been proposed, with one of the best known among them being the
proposal in 1998 by Gunther Teubner who represents the theoretical sociology of
law. Teubner emphasised the fact that the result of transplantation can be anything.
Therefore, we should not speak of a legal transplant but of a legal irritant.17

Teubner’s most important idea in this respect is related to the nature of the transplant,
because in Watson’s thinking the transplant appeared to be something that can be
controlled and somehow predicted. Teubner denied this and stressed that when
something is transferred from one foreign legal culture to another, something
happens, but not what is expected: it is not transplanted into another organism, rather
it works as a fundamental irritation which triggers a whole series of new and
unexpected events. In other words, what follows the transplantation is certain
evolutionary legal dynamics whose consequences it is extremely difficult, if not
impossible, to predict.

Independent of the type of conceptualisation that is selected, legal

borrowing has continued to increase with internationalisation,
globalisation and European integration. To be sure, legal diffusion,
borrowing, copying or transplanting does take place—it is, however,
quite a different question with regard to how well it actually works and
whether it leads to the desired results or not. So, it may as well be that
Michaels has a fair point when he says that ‘we may grudgingly have to
admit that Alan Watson is not, in the end, as uninteresting as we make
him out to be’.18 Whatever criticism we may pose, it remains a fact that
the migration of law is taking place everywhere or, as Tohidipur puts it:
‘Legal rules are extracted from one context, transferred and implanted in
another context, or migrate across sometimes fluid borders and so on’.19

IV. QUANTITY

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In comparative research the strategic basic solution of a technical nature
can in addition to the depth or time dimension be related to the number
of sources, ie legal systems from which the material is gathered. In
bilateral comparative law, comparison takes place between two (at the
most) different legal systems. The advantage of bilateral comparison is
the concentration on strictly limited material (from two systems only),
which means that only a few cases are studied, but they are studied
thoroughly. Bilateral comparison (or comparison among a very small
number of legal systems) can also be called case-oriented. The aim is to
get as deep as possible into the legal systems compared by getting
acquainted with their general doctrines and historical development in
detail.
Case-oriented study can be seen as qualitative or idiographic (ie
concerned with unique facts like in history) in its nature. The results
achieved by it are not considered to represent knowledge that is
empirically generalisable; instead, it is a question of profound
comprehension and explanation of individual cases. This does not,
however, mean that knowledge created by means of case-oriented study
approach could not be applicable in other cases, too, as the grouping of
legal families in fact proves. In comparative law there are both
idiographic case studies, where only a few legal systems are under study
and a certain aspect in them is thoroughly observed, and a nomothetic (ie
inductively reasoning) study approach as appears in the research on the
legal origin theory.
The comparative study on judicial reasoning and legitimacy by Mitchel de S-O-l’E
Lasser is an example of a valuable study that concentrates in depth on a small
number of cases.20 Lasser studies comparatively the French Court of Cassation, the
Federal Supreme Court of the United States and the EU Court. In this study the
differences in the argumentation used in the application of law are shown in how
judges argue and explain when they decide cases and how the judgments are
justified. Here is the thing: the conclusions made by Lasser are not capable of
generalisation; instead they expressly only concern the systems studied when
presenting the ways in which superior courts in these systems justify their judgments:
it is a question of understanding the legal cultures in the systems studied and the
positioning of the supreme judicial decision-making in the overall context of the
legal culture.

In multilateral comparative law, more than two legal systems are

compared. This kind of approach can be characterised as variable-
oriented study, the most significant advantage of which is the great
number of cases studied. This means that the degree of the

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generalisability of knowledge increases, but the weakness of the reach
(how deep into the legal culture or context of law the study reaches) is a
problem. In variable-oriented study it is not easy to get beneath the
surface, and the study remains simply as an organised description of
mere written provisions or other formalities.
Examples using a refined quantitative analysis are in particular to be found in the
sphere of the legal origins theory where statistical data and methods of statistics are
regularly used. A more recent example, and possibly more relevant from the point of
view of comparative law is an article by Martin Gelter and Mathias Siems about
citing foreign law in courts. This article provides interesting quantitative evidence,
from the European supreme courts, in order to assess the usage of cross-citations
over borders.21

In the light of the previous discussion, from the point of view of the
comparative law methodology, two useful basic considerations can be
presented. The first point is that the number of objects in comparison is
subordinate to the scholar’s own knowledge-interest. If the purpose is to
review quickly different alternative normative models (rules, principles,
doctrines, precedents etc), one can cast the net as widely as one would
desire without a worry. Simply, the purpose is to find out what
possibilities there are on the whole ‘on the map of solutions’ for the legal
question that interests the scholar. It is a question of charting basic
alternatives descriptively. Secondly, it has to be noted that the number of
solutions correlates with the depth of the study. A useful rule of thumb
could be the following: the more objects of study there are, the more
limited is the study in its depth; and the fewer objects of study there are,
the deeper it is possible to dig into the foreign law and legal culture.
Yet, in some cases, an idiographic anthropological method is virtually the only
possibility as, for example, when studying oral Inuit law, which uses gossip and
banishment as forms of normative social control. Even though Inuit law does not
work in similar ways to Western State-centred law it is clearly an organised form of
normativity within a human community. So, such essential Inuit expressions as
maligait, piqujait and tirigusuusiit refer to something that has to be followed, done or
not done (normativity). Today, these expressions are often used as equivalents for
modern Western concepts of law, and for comparative law this seems to work
relatively well although the legal-cultural contexts are very different. Today,
Canadian law is a generally accepted form of law among Inuits who still perceive
Canadian laws as a qallunaat (ie not Inuit, but white people as a group) institution.22

The above can be explained in plain English: if the research of a strictly

limited question in, for example, three systems is one’s main job and the

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time spent on the project is four years (ie typical time used to complete a
PhD-thesis), then without a doubt one gets deeper into these three legal
cultures than the person who spends the same four years studying the
same question in 12 systems. However, this is just a rule of thumb and
does not recognise the differences in the skills of the scholars and
researchers or other resources available to the comparatist.

V. THE DIVERSITY OF LEGAL SYSTEMS—

TRANSNATIONALITY
The verticality and the horizontal aspect are related to the question of the
different theoretical character of legal systems. National legal systems
are not the only legal systems, as they can be of different types. For
instance, in this book the expression of large-scale organised normativity
has been used. Legal systems can be classified on the national–
international axis although this division is rough and also otherwise
losing some of its significance. A continuously growing share of national
norms either originate in international law or are otherwise caused by
international legal obligations.
Also supranational law has to be added to the axis. The EU law that
forms its own legal system, which is partially independent of national
law and international law, represents supranational law, while the
jurisdiction of international organisations is in general limited by the
sovereignty of States. Somewhere there are also the practices that are
applied in cultural sub-groups, such as Inuit, Hindu, Islamic, Sámi and
Jewish family law, and the customary norms of the indigenous peoples,
which have not been recognised by the official system/official systems in
spite of their empirical local efficiency. However, in some cases the
State-system officially recognises all different normative bodies as
sources of law, for example in Ghana. Owing to the diversity of legal
systems, the decision on the level of the legal systems to be compared is
among the decisions of a technical nature.
Horizontal comparison concerns comparison between legal systems
from among different legal systems (eg on the national level USA—
Finland—France), which, however, are qualitatively on the same level, ie
there is some formal equivalence. Vertical comparison on the other hand
is carried out among legal systems that are qualitatively of a different
level, which means that comparison can concern the fair judicial
procedure within, for example, international law, EU law or the legal

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systems of States. Vertical comparison has as its starting point the
following: (1) the very existence of different legal systems and (2) the
parallelism of different legal systems. The more there is pluralism, the
more polycentric levels of various normative systems, the
interdependence of which is not to be organised by means of a simple
hierarchy. And it has to also be noticed that different norms adjust to
each other and somewhat change in the interaction. For example,
common law courts can with their decisions convert customary law or
business practices into precedents more easily than in the civil law
systems. Civil law, in turn, tends to convert other generally accepted
normativities in the form of positive law.
Different influences get mingled, which the so-called angrezi sharia proves. This is a
question of the fact that in the UK the official law is the dominant system, but Muslim
law has become a kind of parallel unofficial law that is observed alongside the official
system. Muslims feel that they are being bound by the Shari’ a law and the modern
English law. In practice devoted Muslims adjust their own interpretations of Shari’ a
but do not abandon it. In the words of David Pearl and Werner Menski: ‘South Asian
Muslims in Britain appear to have built the requirements of English Law into their
own traditional legal structures’.23

A. Transnational Law

Over the last few years in comparative law research and discussion
several themes and fields of study have emerged that deviate from the
earlier prevalent horizontal, ie traditional, comparison between States.
The globalisation of law and partly the legal integration in Europe have
had an impact on this. Yet, this new kind of comparative law approach
has several features that are typical of the earlier comparative law: the
core desire to cross national borders in knowledge acquisition, the
pluralistic view of the sources of law, as well as multiculturalism and the
methodological openness compared to the national doctrinal study of
law. Now, the most interesting and challenging of these new dimensions
is the so-called transnational law. It is not just a question of a new field
of law but also a new method to perceive law in a way that is
independent of vertical levels and old national ‘container-boxes’ of law.
Transnationality is not only related to law, but it refers in a more
general way to the legal processes and relations, which cross the borders
of nation-States and in which central actors are no longer the traditional
States, as in international law. The concept of transnationality is not new
because as early as in 1956 Professor Phillip Jessup challenged—in

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anticipation of the future —the conceptual and disciplinary limits that
both public and private international law set for the supranational
dimensions of law. According to the definition of Jessup, transnational
law included: ‘all law, which regulates actions or events that transcend
national frontiers. Both public and private international law are included,
as are other rules, which do not wholly fit into such standard
categories’.24 As late as in the twenty-first century the development has
turned Jessup’s pioneering concept into a promising new point(s) of
view. By means of it, it is possible to assess the challenges of the present
and future law that are less bound by the paradigms of earlier legal
thinking.
The rise of transnational law requires changing the traditional Western
ways of thinking about law and methods with which it is studied: it is
also a question of recognising the global relations of dependence and
influence. Transnational law is evolving in a field that is tension between
the local and global. It also breaks the traditional demarcation between
public law and private law and between official and unofficial law.
Transnational law obscures the traditional distinction between the horizontal and
vertical viewpoints and at the same time challenges the earlier way of thinking of law
as being a phenomenon that originates from and within a State. Around the world the
discourse about transnational law has acquired features of a fashion (fashionable
phenomenon). One example is the number of scholarly journals published: over the
last few years a number of US journals have come out such as: Transnational Law &
Contemporary Problems: A Journal of the University of Iowa College of Law,
Ashburn Institute Transnational Law Journal, Journal of Transnational Law &
Policy, Vanderbilt Journal of Transnational Law, Transnational Law Review and
Columbia Journal of Transnational Law. In addition, plenty of training programmes
for jurists have sprung up. In them the leitmotiv is either transnational law or global
law. Programmes have also been created outside of the United States, particularly in
India but also elsewhere.

Having said that, actual transnational legal research does not in fact yet exist. One of
the most interesting sketches of this new borderless—kind of universal—legal
discipline is the book The Mind and Method of the Legal Academic (2012) by
Professor Jan Smits from the Netherlands. Smits speaks openly for normative but
international/non-national legal disciplines without any yearning for the old ius
commune. Even though not clearly underlined by Smits, his approach seems very
much like a modern version of the earlier German idea of Universaljurisprudenz.25

So far the colossal problem in the transnational point of view is its

lurking cultural bias: it seems to be distinctly the result of Western legal
thinking. Jurists speaking about it are either from the West or have

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assumed the Western way of legal thinking. As a theoretical model and
discourse, transnational law could, however, include also
epistemological dimensions that are non-Western. In many respects
Islamic law, for example, can be seen as a kind of transnational law.
Once again, it is a question of the point of view taken. For the Western
comparatist Islamic legal culture poses a challenge because in the West
law is associated mainly with nation-State whereas in Islamic legal
culture law is governed mostly by the personal dimension which is
defined on the grounds of religion or possibly even a sect within religion.
The Islamic world of Muslims forms in principle one big community (ummah) where
the central uniting factor is the religion. Within that community Islamic law has great
significance although regional and disciplinary differences are clear. While the
central source is the Koran and Sunna, the transnational dimension is seen in the
legal consensus (ijma) of the community. Ijma refers to the legal consensus regarding
basically any matter related to sharia. Importantly this consensus on judgements
crosses the borders of States and is, thus, basically transnational as to its character.

In the literature the expressions Sunna and hadith (speech, statement) mean the same
in practice, ie the tradition of Prophet Muhammed. In a more detailed sense Sunna
refers to all acts of the Prophet that create norms, while hadith refers in a more
limited way only to what the Prophet has uttered. The term Sira that is used in
literature covers both dimensions. Basically the hadiths uttered by Muhammed as the
Prophet are normative, while those uttered in other roles (eg as a husband) are not
normative.

Now, Islamic law is certainly a significant legal culture, but it is not a monolith.
Islamic jurisprudence is divided into schools of which the best-known five main
schools are equal, at least in principle. The schools are Hanafi, Maliki, Shafi’ i and
Hanbali and the Shia school Ja’fari. Among these schools there are slight differences
in individual issues and emphases, for example in connection with the marriage law.

And, the comparative law approach has a special role in Islamic law
because it is, as described by Chibli Mallat, ‘an essential component of
the contemporary Muslim world, because the enactment and
interpretation of all “modern” legislation in every Muslim country is
subjected to scrutiny for its compatibility with Islamic law’.26 An
example is provided by the Constitution of Pakistan, Article 227 of
which deals with provisions relating to the Koran and Sunna. According
to this article, ‘All existing laws shall be brought into conformity with
the Injunctions of Islam as laid down in the Holy Quran and Sunnah …
no law shall be enacted which is repugnant to such injunctions’. In a
general sense, Islamic law is a similar type of overall legal yardstick as

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human rights are for most Western countries: legal systems are evaluated
by using a common yardstick, which is used when compatibility is being
monitored. Furthermore, in a certain sense Islamic law is like a
religiously tuned early version of transnational law.

VI. CULTURAL DIMENSION AND THEIR

OVERLAPPING
The focus of this book, and simultaneously of modern comparative law,
is legal culture that extends beyond the boundaries of the formal legal
system. Together with thinking that emphasises legal pluralism, legal
culture is elemental enough to widen the gap between private
international law and comparative law. Culture can also have a different
role to play as a part of the study process of comparative law. One of the
methodological basic choices in comparison can concern the cultural
grounds on which the legal systems for the comparison are selected. For
example, when Western and non-Western legal systems are compared, it
is a question of cross-cultural comparison. The fact of whether or not the
countries in other respects belong to the same more general cultural
sphere does not have a decisive influence because the decisive factor is
the nature of the legal system (or more restrictedly of some limited field
of law).
It has been underlined throughout this book that the legal-cultural dimension is of the
utmost importance to the comparative study of law. Surprisingly perhaps, the
embeddedness of law in culture has proved to be a difficult thing to conceive for
Western lawyers. Legal anthropologist Lawrence Rosen puts this well: ‘It is no
mystery that law is part of culture, but it is not uncommon for those who, by
profession or context, are deeply involved in a given legal system to act as if “The
Law” is quite separable from other elements of cultural life.’ 27 For the comparatist,
aiming to understand and explain the connection between culture and law, ie the
context of law cannot be sneered at.

Comparison is intracultural when it takes place between two or more

legal systems that are part of the same legal culture. For example, it
would be easy to see that comparison between the systems of appeal in
Sweden and the People’s Republic of China is cross-cultural. If a
corresponding comparison would take place between Denmark and
Norway, it would clearly be comparison within the same cultural sphere.
The choice between these two basic approaches depends—just as in

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connection of the earlier choices—on the aims of comparison and the
knowledge-interest and preferences of the comparatist. Also language
skills (the ability to benefit from legal information in foreign languages)
are of importance.
The availability and intelligibility of the material can influence the
choice, too. Accordingly, if the aim is to make a profound scholarly
study of Islamic law, this could be difficult unless the scholar reads
Arabic. In this way, if a Nordic comparatist is interested in Finnish law,
they can go astray if they settle for non-Finnish source material: formally
the picture can be right but the legal-cultural reach of such a half-hearted
attempt remains low. The ‘Nordic problem’ with Finland may be that in
spite of the official status of Swedish (as a minority language), it is
difficult for an outsider to get a full legal-cultural picture of Finland
unless they are also able to benefit from material in Finnish.
In connection with the basic strategic solutions of a technical nature it
has to be observed that different elements can indeed be mixed together
in comparison, or they can be part of the same study while
simultaneously forming successive or alternating phases. It would be
easy to assume that longitudinal study is always case-oriented
(idiographic) in nature because it attempts to give demanding historical
explanations. However, this idea that at first sight seems obvious is not
true as, for example, historical comparison carried out by means of time
series proves. Studies carried out in the sphere of the legal origins theory
demonstrate this, even if there are problems involved with them.

A. Too Many Sources?

The increased number of different legal databases and their increasingly

easy availability via the Internet has opened up lots of opportunities for
quantitative technical-strategic basic solutions in comparative law study.
Old-timers in the twentieth century could only have dreamt of the
possibilities of today. In the same way, through the Internet it is at
present considerably easier to get material on foreign law than was the
case in the past: legislation, case law and legal literature are available in
abundance through the Internet. In fact, paradoxically, the past lack of
sources has been replaced by a huge oversupply.
Be that as it may, the abundance of sources does not change the basic
epistemic challenge of comparative law: how can a Western comparatist
understand, say, the tradition of Hindu law? Or the other way around, the
foundation and the quintessential ideas of Hindu law differ to a great

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extent from Western paradigms, but still Hindu law has its own place for
example in India, whose system mainly seems to follow the common
law. To comprehend Hindu law one has to combine different historical
layers by means of which it becomes possible to understand at least
English sources (let alone the Sanskrit ones).
Hindu law (dharma, ie a kind of natural order) is old but it too has changed. A
significant change in the historical development of Hindu law occurred in the
sixteenth century when India fell under Islamic rule, and the jurisdiction and
administration fell under the influence of Islamic law. The formal position of Hindu
law improved in the British period of the nineteenth century when it was given an
official status. The British period also meant restrictions in the sphere of Hindu law
because its application was limited to certain fields of law while at the same time the
British general law with regard to India was correspondingly expanded. The British
power, on the one hand, advanced the position of Hindu law but, on the other hand,
prevented its spread to new fields of law that had been born because of social
development. As a practical result of the Anglo-Hindu law the classical Hindu law
and jurisprudence started to weaken or at least petrify.

The applications of classical dharma were altered in the British period and, for
example, the legal fields concerning private property and the law of obligations were
formulated solely as a result of the common law. The attempts of British judges and
administrators to follow Hindu law in their decisions were due to an insufficient
knowledge base that was often distorted and fatal for the development of Hindu law.
As a result, a combination, which was not quite Hindu law nor British case law (there
was a general development of a similar type in British Africa), was created. In
general, courts were expected to apply the common law in their decisions, but it was
possible that Islamic or Hindu law was applied if it was a case of family law or law
of inheritance. The basic situation is still the same although India, of course, is an
independent State.

Today modern Hindu law carries and develops the tradition of Anglo-Hindu law in
India. Modern Hindu law is a similar type of personal legal system along with
equivalent systems for Muslims and Sikhs. So, even though there is change and
mutation, there is also continuation and evolution of the Hindu legal tradition.
Menski points out that: ‘there will always remain an element of dharmic foundation
in the legal system applying to, and being applied by, Hindu people’.28

A new problem has taken the place of the earlier lack of sources; now
they are in abundance. The comparatist has to screen the information
given by the sources and to carefully assess their up-to-datedness and
reliability. All this requires a combination of several approaches and
connecting different ways of knowledge acquisition and analyses. All the
same, it is essential that the comparatist is able to reconstruct the
contents of foreign law/legal culture in the light of the (reliable) sources

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that they have had access to. The ease of finding sources has not changed
the necessity of legal-cultural literacy (knowledge that specifically
relates to law): on the contrary, it has gained more significance. To be
sure, there is an overload of comparative law information which requires
knowledge gained through studying foreign law. To conclude, today it is
not enough merely to find sources but also to be able to decide which
sources are to be trusted and which are to be treated with due suspicion.

VII. METHODOLOGICAL CHOICES OF

THEORETICAL NATURE
In most cases, theoretical choices of methodology come up at the stage
when the preliminary research material has been gathered, and some sort
of picture of it has been formed. The comparatist has in their material
acquired some sort of legal-cultural ‘biopsies’ or ‘snapshots’ of the legal
systems that they study. It is of course impossible to grasp the whole
legal system or entire legal systems to be studied simultaneously, which
means that the material acquired (provisions, court judgments,
knowledge of legal practices, legal history etc) is a reconstruction of the
actual study subject/object. Such a fictive biopsy is also a specimen of
the legal culture and language of which the comparatist has to form a
personal understanding and from whose sources they have to be able to
operate when research operations are carried out.
During the orientation that is part of the first stage, the comparatist has
to construct a preliminary idea of how they will proceed in the study:
what will be studied, ie what is compared on the basis of which
comparison is executed so-called tertium comparationis, see chapter
seven, and what the basic strategy is by means of which the comparison
proceeds. Here the question is of the second-stage contact with the data.
Basic theoretical methodological choices have to be made and a more
general theoretical frame of reference has to be planned. It is important
to see that more specific choices cannot be made without a reasonable
amount of preliminary knowledge. Various methodological choices do
not form a particularly logical continuum. However there are, although
the list is certainly not exhaustive, at least four such basic choices:

Basic Theoretical-Methodological Alternatives

1. Functional comparison
2. Structural comparison

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3. Systemic comparison
4. Critical comparison

VIII. FUNCTIONALITY—FUNCTIONAL
COMPARATIVE LAW
In traditional mainstream comparative law the aim has been to solve the
methodological problem of comparability by consciously trying to ignore
the surface level of law. Instead of comparing only legal texts
(legislation, cases), attempts have been made to find out how the
basically same socio-legal problem (in the form the comparatist
recognises it or thinks to have recognised it) has been solved in these
different systems. Ultimately the aim of this kind of comparative law is
(on the basis of the source material) to conceive what in each legal
system is typical and what its relation is to the surrounding society,
political and economic systems and culture. In practice this ought to
happen by analysing differences and similarities in relation to the same
socio-legal problem, for example, such as dissolution of a marriage,
control of the constitutionality of laws or entering into a valid contract or
a common method in judicial decision-making (why this procedure, why
not the other procedure etc).
Study that represents mainstream research has been built on the
recognition of similar legal problematising for decades. It is a question
of a comparative study approach that belongs to the sphere of
comparative mainstream research and mainstream theory and which is
customarily called functional comparative law. This approach has not
developed in a vacuum but was first influenced by such scholars who
were engaged in private international law. In short, it was polished into
its present form by private law comparatists. This approach is still in the
epicentre of the mainstream study although postmodern critical
comparatists have increasingly criticised it from the end of the twentieth
century. The problem with the criticism is that the critics have not been
able to offer a similar type rule of thumb —a method or approach that
would be at least reasonably explicit. Indeed, it is easy to dish out
destructive criticism while constructive criticism is difficult in
methodology.
On the other hand, insights offered by critical comparative law also
concern the law in itself and the fact that traditional comparative law has
not been able to, say, reveal the questionable social hierarchies that the

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systems have created. It has been argued that by means of critical
comparison it is possible to pinpoint more clearly the mechanisms of
social power and control, which have been hidden by the legal language
and the quasi-objective legal structures and in most cases remain
unobserved by the normative doctrinal study of law. According to the
critique, functional comparatists have generally accepted the approaches
and outcomes of each system they have studied more or less as such.
This approach, where law is accepted without critical questions, is said
to prove that functionalists have up to the last few years implicitly shared
the doctrinal internal view of law held by national jurists.
The situation is however changing, and there are visible cracks
everywhere in mainstream comparative academia. This development has
coincided with the weakening of the traditional scholarly umbilical cord
between private international law and comparative law.

A. The Same Idea as a Starting Point

In functional comparison the problem setting typically takes the form in

which legal institutions and practices in the legal systems studied have a
similar problem-solving function. In functional comparison the aim is to
localise how the same (or almost the same) socio-legal problem X is
solved in different legal systems. The provisions and practices to be
compared are selected because the aim is that by means of them the same
socio-legal problem could be solved, and therefore the aim is to find
functional equivalences. In other words, in functional comparative law
the research frame is built on the factual (in the opinion of the
comparatist)—not conceptual or terminological—analogy of the
institutions and provisions compared.
Functional comparative law has long been in the position of being the
basic methodology in the academic literature concerning the field while
others have mainly complemented it. The fundamental idea of functional
comparison is based on the fact that different provisions, institutions or
normative practices can in different legal systems have similar functions.
In turn, provision and legal practices which are similar at face value (eg
terminological similarities) can in different legal systems have different
functions in spite of their superficial similarity, ie linguistic similarities
(so-called ‘false friends’ syndrome) are not the same thing as legal
similarities. False friends refers to a situation in which the comparatist
finds pairs of terms, institutions or legal words in two (or more) legal

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languages that appear linguistically similar (ie they have the same or
almost the same form) but differ significantly in content.
For example, if the comparatist would like to study the methods for controlling the
constitutionality of Acts in the Finnish, US and German systems, they would find
hardly anything of significance unless they were to search for functional
equivalences. When the scholar asks the basic functional question of which
institutions control constitutionality in these legal systems, for Finland they would
end up with the Constitutional Committee of the Parliament, for the USA with the
Supreme Court of the United States and for Germany the Federal Constitutional
Court. This example reveals that different organs carry out the same function. On the
other hand, organs with exactly the same name (cf false friends) can functionally
have considerable differences, as comparison between the President of Germany and
the President of the USA proves. The former is mainly a representative organ while
the latter is an organ with a considerable constitutional prerogative. Homonymy
(which is a special type of false friends situation) is a problem caused by words that
in spite of their identical spelling, and possibly even pronunciation, have different
meanings and is something that functionalism would like to overcome.

Comparison between Western and Islamic inheritance law can also be taken as an
example: in both, the issue in the functional sense is the distribution (the same legal
problem) of the inheritance of a deceased close relative. In Western thinking, this is
permeated by human and basic rights, the difference in the inheritance case between
a man and woman per se is not (any more) recognised, whereas in Islamic
inheritance law the share of the female heir is half of the share of the male heir. In
Western law, estate distribution is regulated in the formal legal system but in Islamic
law the source is the Koran, the way of life ie Sunna prescribed as normative by the
Prophet Muhammad and Islamic legal literature (fiqh).29 The Koran determines two-
thirds of the estate distribution and so one-third of the estate is distributed on the
basis of other sources of law. So, the shares of the inheritance are defined on the
basis of family kinship in accordance with the ratios defined in the Koran.

In the West family connections are defined more narrowly, and the direct heir
(independent of the sex) is entitled to a certain lawful inheritance portion, which
cannot be denied, not even by a will. In short, functional models for the solution of
certain socio-legal problems (eg distribution of inheritance) are, in spite of their
distinct differences, operationally parallel because they regulate property that
becomes available when a relative dies either as inherited in accordance with the law
or—at least partly—bequeathed by a will. According to functional comparative law
those different arrangements administer—in spite of legal-cultural differences —the
same socio-legal function. Crucially, that kind of functional equivalence is why
different arrangements are comparable in the sense of the functional comparative
approach.

Functions cannot be seen with a naked eye, which is why a conceptual

framework that is applicable to all systems studied has to be built in

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order to reveal (or to construct) functions. The system’s own view of the
function is just one opinion because the comparatist’s view (theoretically
and institutionally) is the view of an outsider. In most cases the
comparatist has to themselves build the conceptual-analytic framework
by means of which comparison can be carried out in a balanced way.
If one sees the world through the methodological point of view of
functional comparative law, then, legal language and its relation to the
legal reality becomes a problem. As Professor Hannu T Klami (1945–
2002) stressed it is crucial to understand that the conceptual counterpart
is not necessarily the real counterpart when it comes to legal norms and
concepts.30 At its simplest it is a question of scholars themselves
building such a conceptual framework through which they can examine
all the systems in their comparison selectively from the viewpoint of an
outsider. The basic idea is to avoid putting systems in different positions
but, then again, there ought to be a desire to treat all systems in the same
way—including one’s own law, which must not be given a legal-cultural
or legal-theoretical preference (avoidance of bias).
The fundamental purpose in functional comparison is comprehensible
and easy to perceive: the purpose is, to the extent possible, to eliminate
the methodical problem and produce an analysed description of foreign
(and often simultaneously of one’s own, too) law from the viewpoint of
an outsider. The picture is partially objective in the sense that it has been
expressly informed, and the study approach is the same (or it should be
the same) in connection with every system. It is a question of a different
objectivity from that of natural sciences; more fittingly we can talk about
the candour of study and the obligation of the scholar to present the facts
that have influenced the study as honestly, openly and exactly as
possible. We can talk about a special research technique called epoche.
Instead of the objectivity of the natural sciences we can aim at something that in
social sciences is called epoche (or bracketing). In connection to the research
process, epoche refers to the action of the comparatist where they consciously bring
up (and explain in detail) their study-related beliefs, hypotheses/expecta-tions and
theories concerning the legal systems studied. When this has been done, they should
attempt to bracket ideas. In an ideal case this would mean excluding one’s own ideas
for the duration of the research.

However, in fact it is a question of certain methodological fiction because even in

this way comparison will not in a scientific sense be completely objective (total
freedom from legal-cultural suppositions). Notwithstanding, the comparatist can act
like this —and being conscious of their own biases—at least attempt to approach
foreign law as being as devoid of prejudice as possible. Identification of personal

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bias is especially an exercise for the comparatist in order to minimise pre-research
bias or at least to become aware of the existence of bias.

For example, for a Western comparatist studying Islamic law or the

customary law of indigenous peoples such an operation in awareness is
definitely a useful part of a study process that aims at being sincere. It is
not a question of the comparatist having to dismiss their own advanced
ideas but that the comparatist would become aware of their potential
effect on the study project and particularly on the conceptual frame built
for comparison. To simplify a great deal, the comparatist ought first to
identify what they expect to discover and then deliberately put aside
these expectations about foreign law. Unfortunately for comparatists, this
is much easier said than done.
Max Rheinstein used to give advice on this matter which although immensely
difficult to apply is apparently simple in nature: ‘Try to forget that you have ever
studied law. Never approach a problem in the way in which you would approach it at
home’.31 Rheinstein gave this piece of bracketing-methodology advice to young
European jurists who had arrived in the United States—knowing only too well that
the advice was anything but easy to follow: forget (for a while) who you are and
what you have learned, that should suffice! Although Rheinstein did not use
ethnographic vocabulary, his point was that of an epoche-approach: only when the
comparatist puts aside their own ideas about the foreign law, does it become viable to
grasp the legal-cultural experience from the eyes of the domestic lawyer who actually
‘lives’ the foreign law (internal view). Yet, the comparatist merely reconstructs
foreign law from the basis of sources and their own understanding.

B. Getting Rid of System-specific Labels

Beyond dispute, from the point of view of the comparatist, the advantage
of the functional approach is getting rid of misleading labels. Functional
comparison is not meaningless even if in the legal systems compared the
societal conditions (which form a more extensive context to law) are
different to a considerable extent, as far as the comparatist manages to
find functional equivalents. In general, suitability for comparison is the
crucial and simultaneously most difficult issue in any comparative study
—one has to be able to justifiably specify in what particular manner the
objects compared are comparable, ie what qualities (things as such are
not compared, but the qualities of things) can be compared sensibly.
When the comparatist has managed to construct the research frame to the
extent that it is possible to carry out comparison, they still have to sort
out the differences and similarities in how the study topic has been

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legally (in its wide sense, ie normatively) organised in the systems under
study.
Occasionally, labels can be not only misleading but also downright
incomprehensible unless they are set in the context of their own legal
culture. Areios Pagos, the Supreme Court of Greece, is a good example
of terminology that is difficult to interpret.
The court is also known internationally by the name Areios Pagos (the spelling
differs a bit from language to language). As the term describing an institution of a
foreign law Areios Pagos as such is meaningless—its direct translation does not
convey any legal information. The name refers to one of the hills in Athens: Areios
Pagos or the hill of Ares (Άρειος Πάγος). Ares was the God of War (the Romans’
Mars), one among the Olympian Gods in Greek Antiquity. In Greek Antiquity,
murder charges and other serious crimes were judged in a place that was called the
Hill of [Link] name of the court has its background in the myths but it is not in
respect of the ancient God of War but of trials of ancient Athens. The name could be
characterised as a tradition-conscious bow towards the developed civilisation of
Greek Antiquity.

Among the several courts of Athens in the classical period, Areios Pagos of
Antiquity was the one which was most respected. As a modern judicial organ Areios
Pagos is an appellate court or the Court of Cassation: it only handles legal problems,
not issues of evidence. In this, Greece follows the example of France where the
Supreme court (Cour de cassation) supervises the way in which lower courts observe
legal rules and principles in their case law. So, this takes place in a situation in which
a certain combination of facts is regularly repeated in a case where there is no written
provision that could be directly applied or where it is subject to interpretation. The
French term cassation can be derived from the verb casser, ie the court cancels the
decision of the lower court if, and only if, it considers that the lower court (1) did not
follow the right juridical process or (2) that is misinterpreted the law. So, in Areios
Pagos ancient Hellas and France of a much later date meet and fuse together.

It is also necessary to emphasise that the functional framework enables

the study of both differences and similarities. Critique has maintained
that functionalism seeks only similarities, but this is not the case, ie the
functional approach does not include any assumptions of similarity even
though some influential scholars (eg Zweigert and Kötz) have thought
so. Yet, occasionally, functional comparatists have concentrated on
emphasising solely the similarities of the systems compared. In such
cases the question is mostly of the knowledge-interest that serves
harmonisation or unification. The functional approach, as such, is
equally applicable to the study of both similarities and differences. The
functional approach in itself does not assume aiming at harmonisation or

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unification although in unification projects it has been the frequent
approach.
Here is the thing: the comparatist cannot decide in advance what their
study will reveal. Occasionally differences come up, while at other times
similarities will appear. If the scholar decides in advance that either one
of the dimensions will be emphasised, it is a question of a choice in
research policy. One of the leading modern theorists of comparison
Örücü sums it up fittingly: ‘What is wrong is to look only for similarities
and overlook differences or look only for differences and overlook
similarities’.32 This is a very good methodological rule of thumb for the
contemporary comparatist.

C. Problems and Transformation of the Functional Approach

In the epistemological sense the functional comparatist is simultaneously

inside and outside of law: when the comparatist studies individual
national systems they are bound to the valid law and the existing internal
ideas (ie legal doctrine) about sources of law. This seems inevitably to
lead to some sort of legal conservatism. However, as an outsider the
comparatist examines different systems in a parallel setting in a study
frame that is independent of the systems themselves. This type of
functionalism can be described as legal problem functionalism that
concentrates on the microlevel of law and ignores the sizeable social
structures—which are essential for the different functional trends of
sociology—to a great extent. As such, problem functionalism is a
heuristic rule of thumb that is characterised by a downright lack of
theoreticalness. As a counterbalance for the lack of theoreticalness,
functionalism is also a reasonably flexible methodical rule of thumb that
allows the scholar plenty of creativity.
Finding functional counterparts is possibly the most efficient approach
when the legal systems under study differ from each other significantly.
For example, in comparison between Finland and Sweden there would
probably hardly ever be any need to get started by finding functional
counterparts because the legal systems of the two countries are so similar
that decisions assumed in them and their positioning in the entity of the
legal system are likely to be very much alike. The problematicalness of
the functional approach is related to its difficulty, because it can
sometimes be very difficult to estimate which institutions carry out the
same function in different legal systems. Problems can go far deeper.
How do we in the first place know that all legal systems would have a

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number of specific universal legal functions that must be performed?
Indeed, is this kind of an assumption simply too bold to hold water?
When understood properly, the functional approach does not assume
such a stretched universalism. During the research process, different
assumptions can take turns and the comparatist can end up changing the
basic methodological assumptions first made.
Carrying out functional comparative law is made difficult by the far-
reaching specialisation of the different branches of legal fields, in which
cases the opportunities to look for functional counterparts are poor
because the scholar of administrative law knows administrative law and
the scholar of civil law knows civil law. In addition, one should have a
readiness to acquire knowledge from other branches of legal disciplines
such as legal history, legal sociology, legal anthropology and legal
economics. Notwithstanding, the functions of the legal systems dismiss
the academic borders between disciplines. This need not mean the
requirement for mastering all fields of law. Having said that, it means a
readiness to cross the borders between legal fields in knowledge
acquisition. At present it is also important to perceive the fact that a
functional approach does not exclude other approaches. Functionalism is
certainly not the only method in comparison.
One of the very best comparative studies from the last few years, the extensive work
by Richard Hyland, Gifts—A Study in Comparative Law, 33 shows that it is possible
for the old functionalistic school that is interested in legal rules and the more recent
comparative law that is influenced by anthropology to live side by side. Although
Hyland himself has a critical view of the functionalistic way of performing
comparative law, his massive work represents in fact such (modified) functionalism
that it can be considered functionalistic comparative law of the twenty-first century.
Yet, Hyland’s approach might also be described as a structural comparison (see
section IX of this chapter).

The starting point for Hyland’s monograph is that for the past 2000 years Western
legal systems have been obliged to change the basic principles that regulate the gift.
By the gift Hyland means the transfer of property to someone else for free so that the
disposal is based on voluntariness, which means that the property of the donor
decreases while the property of the donee increases. The work examines how the
legal concepts of the gift have been changed to correspond to the different social
practices in England, France, Germany, Italy and Spain. The work also contains
extensive sections where the concept of gift in anthropology, history, economics,
philosophy and sociology is clarified. The approach is versatile, simultaneously
anthropological, doctrinal and partly legal-historical.

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It has been argued above that comparison which is labelled functional is
a rough methodological perception model for a study setting and nothing
else. Slavish and straightforward implementation of functionalism
involves serious risks. If the assumption of the functions of legal rules
and legal institutions becomes mechanical, law is in danger of being
reduced into utilitaristically defined functions, which are assumed to be
identical in all societies. That means that the cultural and symbolic
dimensions of law are left aside although it is well known that law often
has significant symbolic functions: a mere look at the architecture of the
buildings housing the Supreme Courts of States speaks for itself. The
deeper layers of each legal culture remain completely closed when mere
facts are resorted to; explanations can remain superficial if only
comparison of solution models for problems that are recognised to be
formally legal is stressed. In sum, the functional approach must not make
one blind to the use of alternative approaches like ethnographic or other
sorts of qualitative or quantitative methodologies.

D. Translating Legal Language and Functional Comparison

Legal translation is one of the most significant questions in comparative

law. In legal translations the aim is that the legal content of a document
in legal language (source-language) is correctly conveyed to the reader
whose native language (target-language) is not the language of the
translation. In practice, this presumes that the terms that represent legal
concepts are correct in the legal sense. Legal-linguistically the basic
situation in translation is the same as in functional comparative law: to
establish the equivalence. In such a case the translator tries to find from
the foreign system the legal institution which to as great an extent as
possible has exactly the same role in a similar situational context.
It would seem that legal translation is relatively easily understood in functional
terms. This approach is usually well grounded because legal language homonymy or
other cases of the false friends syndrome in particular is deceptive. For example, gift
in French is contrat but in common law it is not contract because it lacks the
consideration element that it ought to have in common law; from the common law
viewpoint contractual reciprocity and contractual consideration are lacking. In France
a marriage is contrat but in Italy it is not contratto, and so on.

On a general level functional comparative law and legal translation can

be considered to be virtually the same thing. The differences are created
by the difference in the knowledge-interest. The comparatist compares

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the solutions (functions) adopted in different systems for the same (or
approximately similar) socio-legal problem and looks for differences and
similarities. Ultimately, they try to find an answer to why there are
similarities and differences by searching for answers in history, economy,
politics, culture and, for example, geography. The translator tries to
translate foreign law legally correctly. In both, the question is ultimately
the same thing, ie a serious attempt to understand foreign law by edging
with subtlety under the surface of legal language, which is a language for
special purposes (ie a language which is a formalised and codified
variety of everyday language and is used for legal purposes).
While for the translator the foreign legal system and culture are the
context for good-quality translation, knowledge of the language of the
foreign legal system is the prerequisite for the good-quality study of
foreign law. Apart from legal history, the linguistic dimensions have a
very special significance for a comparatist who tries to cross not only the
borders between States and cultures but also the borders between legal
languages. The significance of the language causes problems for the
comparatist, but also within systems, the changes in the language used
are of great legal cultural significance.
When the language of the legal culture changes in its surroundings, also the system’s
own legal language is under pressure. For example, in the USA in Louisiana the
language of law and legal study that originally was French has got into difficulties
because with the weakening of the position of the French language the ability of
Louisiana lawyers to even understand and make use of Roman law has deteriorated
dramatically. Another example is Cyprus where the common law that dates back to
the British period has to be transformed into the legal language of Greece.

At present the system in Cyprus is based on the written Constitution but since Great-
Britain governed Cyprus up until 1960, the common law is also in force. English
does not have an official status as a legal language, but up to the present it has had a
strong unofficial legal cultural status. Partly the influences assumed of Greek law in
Cyprus differ from the law in Greece because in parts the impact of the Orthodox
Church is more clearly seen in the Cypriot system. Even the legal language of the
country seems to be in the melting pot; it vacillates between English and Greek.

There are numerous examples: legal Italian is in the sense of the scholarly study of
law a sort of ‘Italian legal German’, which still today reflects the impact of the
German doctrine that originated at the end of the nineteenth century. By means of
standard Italian, legal Italian is hard to understand: the influence of German
Pandektenrecht transformed into Italian Pandettistic, which can still be seen in the
Italian legal process and legal education. This is no wonder, since key scholars who
founded Italian private law in the 1800s were very influential Romanistic scholars
(eg Filippo Serafini 1831–97), and had been trained in Germany by Pandectists.

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Now, there may be differences between legal linguistics and comparative
law. In legal translation the principle of functionality is not treated with
critical postmodern opposition as easily as in comparative law for the
simple reason that when translating there is no need to make such far-
reaching decisions about the similarity of legal systems as older
mainstream functional comparative law is accused of doing. In general,
the translator need not start to explain in detail at the general (legal) level
what is the reason for their choice of particular functional equivalents in
the translation: the focus is solely on the translation of the text.
On the other hand, if it is a question of a comparative legal linguist,
the translator hardly succeeds unless they know the legal and legal-
historical contexts of legal languages. Legal linguistics and comparative
law are inevitably allies in cases where a serious attempt is made to
understand the legal messages contained in a foreign legal language in a
competent way. To conclude, legal languages and cultures are
intermingled, just as different fields of study are relevant for
comparatists.

IX. STRUCTURAL DIMENSION

A. Structural Elements

In structural comparison similar structural elements are searched for (or

occasionally attempts are made to explain why there are none). When
structurally similar elements are found, they are examined in order to be
able to explain what socio-legal functions they have in the legal systems
studied or how they were born and acquired their present form. It is a
question of examining legal architecture, which is outlined by legal
historian Bernhard Stolte as follows: ‘the modern codes of private law
have been built with the same bricks, although, of course, under different
architecture’.34 Stolte speaks of Continental codifications and how the
end-results of the codifications differed from each other in spite of the
same Roman structural components (norms, principles, institutions,
doctrines etc). Within the context of a different architectural view and
legal culture, different codifications were created. Everyone who has
played with Lego bricks realises what this is all about: the same law-
parts can fit together in a myriad of ways resulting in various legal-
cultural kaleidoscopic views.

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Structural comparison can be seen as a specialised application of
functional comparison. In structural comparison it is possible to
investigate, for example, how legal systems are divided into different
fields of law whose similarity or difference is under study. On the micro-
level, the comparatist can try to explain why, say, and how in England a
trust or a case where one person (a settlor) gives assets to another person
(a trustee) to keep safe or to manage on behalf of another person that
enables a kind of double ownership differs from the Continental
European law, where similar functions are handled in a different way.
English law regards a trust as an arrangement where one or more trustees
are made responsible for holding assets. The assets, which can be, for
example, buildings, land, money or shares or even antiques, are placed in
a trust for the benefit of one or more ‘beneficiaries’. According to
William Maitland (1850–1906), the trust was ‘the greatest and most
distinctive achievement performed by Englishmen in the field of
jurisprudence’. And, it was a legal institution of ‘great elasticity and
generality’.35 However, there are no actual civil law equivalents and
such institutions as the Roman fideicommissum or the German Treuhand
cannot be genuinely equated with common law’s trust.
Rather few comparative law studies, however, identify themselves as concentrating
in particular on the structures of the legal systems. One exception is the work of
Birke Häcker titled as Consequences of Impaired Consent Transfers, which in
particular aims at being a structural study where English and German law are
compared.36 Häcker examines the competence to transfer movable property on the
basis of consent and situations where it is declined. She reflects on contractual
principles and regulations, laws of property and restoration of unfounded advantage.
Comparison covers the rules and principles governing impaired consent transfers of
movable property.

In structural comparative law it is possible to operate for example with

such concepts as the basic model of regulation where criminal law
systems may be described as punitive or restorative. Or, the
classifications of constitutions that have been created by means of
comparison are an example of basic regulation models that have been
found by [Link] purpose of such classifications is to offer
knowledge of the structure and field of constitutions. As a result of
comparison among others the following classifications of constitution
have been recognised: written/unwritten; coherent/dispersed;
rigid/flexible; monarchic/republican; and federal/unitary. In reality, it is a
question of basic alternatives that concern the constitutional regulation

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model and which only seldom materialise as such in the living legal
systems. The basic models mentioned, however, offer a conceptual
framework by means of which it is easier for the comparatist to approach
the constitutions and constitutional laws that are part of foreign legal
structures. In this respect, the results of structural comparison have to a
great extent the same function as the legal families that have been
constructed as a result of theoretical comparative law, ie creation of
general information and offering of a framework to facilitate
understanding to start with.
Owing to its theoretical knowledge-interest, structural comparative
law often has close contacts with general jurisprudence and the
intellectual history of ideas in the sphere of which the methods to
organise the legal material in a specific structural way adopted in
different legal systems are studied. A classic example is the distinction
between private law and public law, which does not exist as such in the
common law. However, the questions and disputes on the theory of
comparative law have occurred in the context of the mutual
comparability of systems that belong to different social systems rather
than within the disciplinary boundaries of general jurisprudence.

B. Structural Comparability

The dispute over the comparability of socialist and Western legal

systems formed a source of disagreement that lasted for decades and
could not be solved before the socialist systems that had rested on a
planned economy, centralised planning and single-party-system broke
down. Socialist law was, however, modified civil law spiced with
Marxist-Leninist ideology and a Soviet type of public law. Discussion
has subsided but by no means ended; focus has shifted towards the East.
The commensurability of Asian and Western ideas of law has caused
discussion in relation to its political base and human rights as well as the
protection of private property, and also the unfitness for comparison of
Islamic and Western law.
According to one view that has been acclaimed, the historical
revolutionarity of the Eastern-European legal development in the 1990s
turned the ex-socialist legal sphere into a laboratory for comparative law.
The study of it was seen as vitally important—there was an opportunity
to see how institutions and legal borrowings adopted from foreign
systems adjusted to the receiving countries that in parts differed a great
deal from the Western system. The extension of the sphere of the EU

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Member States has added a new layer to the change in the Eastern-
European legal culture by further increasing uniform features (of the
written law).
When Eastern Europe was transformed from having socialist law closer to having
Western law use was made of several transplants and Western models. This, however,
did not mean a quick turning point in the earlier legal culture because in Eastern
Europe the doctrinal study of law is still national and tinged by legal positivism. The
status of comparative law in the former socialist countries is not to be applauded,
although for the EU Member States the situation has changed in the respect that by
means of comparative law, it has become possible to make EU law easier to
understand. Notwithstanding, Poland can be mentioned as an example of a State
where in the twenty-first century the role of comparative law and the status of foreign
law in teaching have more clearly detached themselves from legal positivism and
nation-State thinking.

On the other hand, Bulgaria is an example of a State where there have been problems
with corruption and organised crime more clearly than in other EU countries, and
Bulgaria has not progressed in its development towards a Rechtsstaat as well as had
been expected. Partly it is a question of the difficulty of removing the bad practices
that over the past decades have been formed in the legal culture: they will not
disappear just by renewing legislation and adopting legal borrowings and EU law
from other countries and from the EU. The problem, and of course not only for
Bulgaria, has been the role of informal practices (unofficial normativities).37

Generally speaking, it is a question of legal reality and legal culture, not only black-
letter rules. Similar discussion is taking place, for example, in connection with
Chinese legal culture and Western legal loans and transfers. In this sense the old
comparability discussion has not died a death but it has, instead, transformed into its
present reborn form.

Structural comparative law also includes studies where there are special
contexts that are legal-culturally important and remain outside of the
actual fields of law, such as, for example, the position of precedents
among sources of law in different legal systems. In such cases
comparative study comes very close to legal theory as for example in the
seminal work Interpreting Precedents from the late-1990s.38 In the book
it is proved by means of comparative study that it is not a question of a
black and white dichotomy—precedents are binding versus precedents
are not binding. It is a question of a continuum where validity is given
different weight in different legal cultures. By means of study,
precedents can be placed in their constituent legal and legal-cultural
contexts.

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The structural dimensions of legal systems can sometimes have a great
significance on comparative study. The same legal institutions can in
their own systems be attached to particular socio-legal contexts in which
the comparatist coming from another legal culture finds it difficult to
fully perceive. This includes also the changes in positive law over time,
as a result of which legal institutions can change contexts in their own
legal cultures. For a comparatist this change is always a challenge, for it
can result in a misconception about the fundamental difference of the
foreign law although it might simply be just differences of degree or a
lack of syncretisation in the legal-historical progress (roughly the same
phenomenon in different times).
As an example we can mention such a basic private law institution as marriage. For
most of the history of Europe, marriage has been an economic contract between two
families or extended families (ie including kin) by means of which it was possible to
arrange the marriage between these families: love or devotion or any other
affectionate opinion of those about to be married was not taken into consideration in
the contract. Through the influence of the Christian church, marriage became in
modern times the kind of sacrament we have today: it is based on affection and in the
theological sense reflecting the relation of the human being to Christian God. At
present, the starting point in Islamic law is that marriage is not a sacrament and is not
related to attachment: it is a question of a contract (between the families of the bride
and groom) that includes such basic elements of contract law as proposal and
acceptance.

The Islamic contract marriage of this kind can also include conditions, one of which
is the condition of the temporary nature of the marriage. One of the factual functions
of the mut’a (contract) marriage that is recognised by Shia Muslims can be evasion
of the banning of a sexual relationship outside marriage, in other words it can denote
prostitution. (The purpose of the mut’a marriage seems to be making temporary
sexual intercourse possible in accordance with Islamic rules.) From the point of
comparative law, it is important to see that in such cases the institution called
marriage is connected to different sections of the legal systems of the Western and
Islamic systems. To make it functionally simple: if a normal permanent marriage
(nikah) is of its legal nature a deal based on a contract (as social and legal
institution), mut’a is hire based on a contract.39 In the Western legal culture,
however, marriage, deal and hire are connected by the fact that they in their own
systems are legal acts having significant economic repercussions.

All this may sound as bit exotic to the Western comparatist but as a matter of fact
situation it is much more nuanced than what appears on the surface.40 There are
internal hybridities. Jan Michiel Otto describes the hybdrity of Islamic law fittingly:
‘Throughout history and throughout the Muslim world, sharia has been shaped and

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reshaped, influenced by local customs, reconstructed by colonial law, and more
recently by national legislatures, administrators, courts and international treaties’.41

C. Dynamic Approach

The best-known study approach that is placed somewhere in between

functional and structural comparison was born in Italy where owing to
tradition the practice of comparative law in its different forms at
universities is considerably more extensive than in many other civil law
countries. There is a so-called dynamic approach, which is related to the
functional-structural comparative law. The main developer of the
approach, Professor Rodolfo Sacco (b 1923), has paid attention to the
fact that when the similarity or divergence of the law in different systems
is studied, in some issues several sources of various types should be
consulted.
It is a question of legal-cultural rules that define how law is created,
used and studied in that particular system. It is a question of the legal-
cultural reasons and theoretical constructions that concern the creation
and use of law. Sacco and his followers described this entity with the
term ‘legal formations’, or in Italian formanti giuridici. In the English
literature on the field it has been translated as legal formant. It is a
question of a more extensive and contextualised interpretation of a legal-
culturally extended source of law or institution. Legal formants are
basically legal propositions (eg doctrine on sources of law) that have an
effect on the solutions of legal problems: they are not rules but more like
definitions stating principles which are used while constructing
judicial/legal decisions. So, formant is not a singular thing but instead
refers to the plurality of legal elements combined.
According to Sacco (and Antonio Gambaro), the central function of comparative law
is to discover the legal-cultural formations that prevail in each system and that are
not confined to formal law because different implicit principles, practices and
methods that are not expressed in writing should be taken into consideration in
comparison. The situation is like this because in spite of quite similar legal texts, in
some cases the interpretation of law is different in different systems. In addition, it is
worth noting that even within the same legal family it is possible that a different view
has been taken in the same case in different countries. Also in the same country,
disharmony might prevail about some matter between the different legal formants,
which is demonstrated by the differentiated source of law doctrines in different fields
of law.

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Sacco has classified three basic types of the legal formant, which are the legislative
formant (formante legislativo), jurisprudential formant (formante giurisprudenziale)
and doctrinal formant (formante dottrinale). Sacco’s theory is acclaimed worldwide,
in particular owing to his article Legal Formants: A Dynamic Approach to
Comparative Law, which was published in 1991 by the American Journal of
Comparative Law.

It should be made clear that the study of legal structures is not connected
to the social science structuralism that is known in anthropology and
sociology. In the background of that kind of structuralism there is a
common idea according to which society consists of different symbolic
systems. Among the ideas of actual social scientific structuralism is the
studying of the effects of structures on the behaviour of people as part of
their communities. That type of structural analysis is also based on the
observation of relations formed by symbols. It is possible to practise
comparative law, too, with such structuralist emphases, but in most cases
a slightly less ‘saturated’ study of legal structures is used. The study of
legal formants is apparently the kind of structuralist comparative law that
has been developed the furthest in the scholarly sense. However, the
‘legal formants’ approach has not gained such great popularity among
comparatists as have various versions of functionalism. Moreover, the
dynamic approach and functionalism seem to partially overlap.

X. SYSTEMIC APPROACH
In systemic comparison a specific legal institution or structural part that
belongs to a legal system is ‘separated’ from its national context and
placed side by side with solutions on the same socio-legal problem by
the other legal systems compared. The objects for the comparison are
picked from different legal systems and set in the theoretical context
(comparative framework) constructed by the comparatist. An example of
this approach is provided by Maartje de Visser, who concentrates on the
institution of constitutional review in Europe: de Visser studies how
constitutional review is organised in the systems of 11 EU Member
States.42 If the object selected for comparison is included in the scholar’s
own legal system, it becomes possible by means of system comparison to
observe one’s own national solution as if from outside: how do the
arrangements in one’s own law relate to the corresponding laws of other
systems?

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In systemic comparison —as in comparison in general —the
comparatist is the one who has to construct the conceptual framework or
the theoretical model by means of which comparison is performed. The
criteria for the comparison do not emerge from the study objects on their
own. The scholar’s own knowledge-interest is in a significant position,
which is why the nature of systemic comparison in most cases is
theoretical comparison where the aim is to increase the amount of
knowledge. In spite of this it is possible to utilise knowledge obtained by
means of systemic comparison that has practical aims.
The Achilles’ heel of systemic comparison is its conscious attempt to
remain methodologically detached (external point of view) from those
legal systems from where the legal solutions that are compared come. On
the one hand, this approach enables knowledge formation that is
detached from national legal systems and thus serves the theoretical aims
of comparative law. On the other hand, when we withdraw from concrete
legal systems and abstract socio-legal solutions adopted in them for our
study, several epistemic problems appear. The most central of these
problems concerns the fact that the comparatist can misinterpret a
foreign model if they do not consider foreign law in its the entirety, ie the
total amount of things considered legal from the point of view of a
national lawyer. The problem can to some extent be avoided if functional
equivalents are searched for when selecting objects for comparison.
Having said that, it is sometimes very difficult to tell apart systemic
comparison from structural comparison, a part of which it can also be. A
system can be seen as operational (dynamic) while structures are not
operational (static) in the first place.
An example of systemic macro-comparison is comparative criminal
law where it is possible to distinguish three different Western criminal
procedure regimes (or control regimes), which are the common law
regime, Romano-Germanic regime and Nordic regime. These are of
course comparative generalisations by means of which generalisations in
reasonably analytical form can be presented:

1. Common law is based on legal principles, which were born in legal

practice at the turn of the eighteenth and nineteenth centuries and with
which the opportunities of the prosecutor and defence counsel to act in
a criminal case were limited. Compared to other regimes, the common
law judges are rather passive up to the point when judgment is
pronounced. The common law regime has been built on the notion that
from the beginning of the process there would be laymen (jury)

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involved, and due to this, different complicated rules were introduced
to compensate for the laymen’s lack of legal knowledge. The
punishment is specifically a punishment for a crime.
2. In the Roman-Germanic or civil law model the legal practices have
their roots in academic doctrine and law is approached scientifically,
which means that judges are regarded as highly educated jurists. The
considerably extensive authorities of the academically educated
professionals diminish the freedom of action of the laymen and
defence. The end-result is the rather bureaucratic machinery of legal
practice, which operates on the terms of the legally educated and
remains barely comprehensible for the laymen. One key function of
punishment is to separate offenders from a society.
3. The Nordic model is a kind of hybrid between common law and the
Romano-Germanic law, but it is not so much a case of Nordic
countries having been directly influenced by them but because it is
based on the Nordic legal culture. The Nordic legal culture is
characterised by its communal nature and social-political basic
emphasis. One of the basic principles of the system is to level off
social inequality by means of intervention by public authorities. While
in particular both the Anglo-American common law and Romano-
Germanic model attempt to detach the offender from a society, the
basic aim of the Nordic model is to socialise the perpetrator from
imprisonment back to a society. (Yet, the model for this probably
comes from Germany where the Reformation and the jurisprudence of
the nineteenth century were influential.) In addition, judges are more
layman-like than the Continental European ones. From the point of
view of the comparatist these differences at the systemic level have
concrete effects on comparison: for example, the assessment of the
action of judges is not based on exactly the same criteria in, say,
France, the United States and Sweden. The legal-cultural contexts
differ significantly at the system level although each of these three
regimes belongs to the cultural sphere of Western law. In connection
with details it is functionally difficult to draw a parallel 43 between the
regimes although in general and on the macro-level comparability
seems relevant especially if compared with non-Western models.

XI. CRITICAL STUDY APPROACHES—TWO

EXAMPLES

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The critical approach is even more multifaceted than the previous ones,
and it is not possible to define it with the specificity that would be equal
to the definition of the previous three basic dimensions of comparative
study. Usually there are two types of criticalness: (1) attitude to earlier
comparative law is critical and it is considered to concentrate too much
on Western private law similarities and practical goals; and (2) in the
study approach the aim is to include dimensions that are not descriptive
to as great an extent as the case has been in traditional comparative law.
This can also be described as method criticalness and content
criticalness. This manner by which to divide critical approaches is
clearly not the only one; for instance Siems uses a distinction between
‘law as discourse’ and ‘law as politics’.44 Now, the difference between
Siems’ distinction and the one used here is not significant because these
critical forms of comparative law are both post-modern and they
‘illustrate that there is considerable diversity in the way comparative law
can be approached’.

A. Deep Level Comparison and Mentality

Among the best known adherents of critical comparative law is Professor

Pierre Legrand who is one of the most controversial comparison theorists
of recent years. Some comparatists greatly adore his approach and
theories, while others—greater in number—are of the opinion that
Legrand greatly exaggerates. From the 1990s Legrand has become
mainly known in European jurisprudence for the fact that he opposes
with sharp tones the idea of the cultural unification of European law.45
Another central characteristic is the emphasis on dissimilarity—
Legrand’s core idea is to emphasise differences in comparative study
while traditionally the trend has been to emphasise similarities.
According to Legrand, comparative law is the study of the fundamental
differences of different systems where the methodological guideline is
precisely the difference.
Unlike for Continental European legal scholars in general, for Legrand
regulations and concepts are manifestations of the legal-cultural surface
level, which is something of less importance. They form a small part of
the mental programme that a certain legal culture or a legal system that
belongs to a specific legal culture all in all forms. He emphasises the
significance of the subsurface cultural structures of law of which the
rules of law and legal concepts reveal very little although they reflect the

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deep structure of the law. This does not mean that the rules of law would
not be valuable or that they should not be given significance. It is rather
a question of what epistemic significance the rules of law and legal
concepts are considered to have in the comparative law study.
According to Legrand, the significance of a legal rule is never
revealed by just examining the rule itself, ie the rule does not ever
explain itself. The significance of a rule is the function of epistemic
assumptions. Epistemic assumptions again are culturally and historically
defined factors. The comparatist has to assume such an attitude to study
the cultural, political, anthropological, linguistic, psychological and
economic background factors instead of the significance of the surface
level of the rule or concept. Thus every single manifestation of law (eg
legal rule, court decision, statute enacted by a legislator) has to be seen
as a complete social fact. Therefore, the most central feature of a legal
rule is not its nature as a normative directive but its nature as a reflection
of something that is more important and more essential for the law itself.
Due to the emphasis on the significance of the deep level of law,
Legrand suggests that comparatists should investigate the cognitive
structure of a particular legal system and especially the epistemic
grounds of that cognitive structure, which he refers to by the name legal
mentality. The examples with which he concretises the matter deal with
the differences between English common law and Continental European
(Roman law), which according to Legrand are so significant that the
representatives of these systems can never completely understand one
another. Therefore, the comparatist should settle for imagining with
empathy and insight how it would feel to jump into the shoes of a jurist
in another system and to approach the same problem based on the same
legal-cultural way of thinking of the other (jurist).
Mentality usually refers to the mental disposition of an entire society or to a kind of
total attitude. From the point of view of comparative law it can often be a very
significant factor, as for example when the legal culture of Japan is assessed. The
system of the written law of Japan is quite Western, and on the basis of written
sources it is impossible to tell it apart from Western systems. On the other hand, it
seems that the role of formal law is less significant in Japan than elsewhere because
many disputes are not taken to court but solved by negotiation and arbitration before
they become lawsuits.

One example of Japanese legal mentality is that although courts have a formal right
to control the constitutionality of laws enacted by the organ of Parliament, ie Kokkai
(Japanese ), they avoid declaring laws unconstitutional. This is due to the fact that
according to the Japanese legal mentality, the court shall manifest moderation and

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respect to Kokkai. In short, on the basis of positive law the system appears American-
style, but not in practice. The explanation is connected to the legal culture and legal
mentality: Western-borrowed rules and institutions work differently in culturally
different situations.

The ontology of law, ie in the respect in which it can be suitable for the
basis for comparative study, is according to critical comparative law a
symbolic medium by means of which communities try to understand
themselves better. According to Legrand, comparative study increases
the understanding other legal cultures have of themselves by illuminating
that specific cultural way in which they understand their own law. The
core task of law would be to function as one important method in the
social psychological identification of a community. Otherwise
comparative law in his opinion turns into a rather senseless undertaking
with no noteworthy scholarly significance or rationale.
In the European debate Legrand with his opinions has been in the extreme
opposition, if not downright marginal. This is mainly due to the fact that he is so
grimly opposed to, and continues to oppose, common codified European civil law. In
this resistance he has, it would seem, overreached. However, for comparative law
epistemology the core message of his critical comparative law is significant and
important—comparative law cannot settle for studying law as it is defined by the
national doctrinal study of law; instead, law has to be also seen in a different cultural
and philosophical context—where the subsurface assumptions of law (eg
understanding of time, space, legal reasoning and validity) are more important than
the surface level of regulation. John Bell comments on Legrand and notes that the
comparatist must ‘learn about the society and not just the legal system’, but it does
not make it (JH comparison) impossible because ‘otherness does not result in
incommensurability’.46

If this approach to comparison is evaluated in the light of how the same

legal problem is understood, the rule orientation of the traditional
comparative law is turned upside down, no more no less; we should not
examine rules, concepts, principles or even legal theories, but the
implicit (cultural) commitments that are at the background of these
theories should be studied instead. However, such critical comparative
law does not offer any clear methodological guiding principle, so in this
respect it is in a weaker position than the mainstream study.

B. Postcolonial Methodology—Orientalism

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Another example of a critical study approach that is important from the
point of view of comparative law methodology is the critical and
emancipatory study that has crystallised around legal orientalism. Legal
orientalism refers to the generalising study of Asian law which embodies
an implicit colonialist attitude. Now, for example, because the study of
Chinese law and the global significance of China in general are growing,
the study of Chinese law has become a more and more popular sector in
comparative law and the study of foreign law. Legal orientalism and the
discussion related to it give a clear picture of the type of methodological
problems that may lie ahead. The concept of orientalism and the
postcolonial discussion connected to it was introduced in the theoretical
and methodological discussion of comparative law surprisingly late. In
this regard comparative law was not at the forefront, but lacked behind
legal anthropology, ethnology and history.
In an important article Legal Orientalism, Professor Teemu Ruskola
introduced orientalism into the comparative law discussion and
combined it in an interesting way with the postcolonial theory.47 The
theoretical framework of Ruskola’s article was connected to the school
of thought that we are accustomed to call postcolonial.
The postcolonial theory is a rough way to perceive a more extensive
research tradition. Generally, it refers to the process of decolonisation
and the period after that. In fact it is used in reference to several matters
although they do have clear uniting factors. Of course, time periods are
the most obvious factor: it is a question of the tradition of the critical
emancipatory theory that followed the dismantling of the structures of
colonialism. Postcolonialism is quite closely related to the study of
ethnicity and racism as well as to the study of feminism and literature.
The crux from the point of view of comparative law is that Western legal
concepts are no longer automatically accepted as the self-evident
yardstick for different (read: Asian) legal culture(s). Attempts are made
to give the legal Other (written with a capital O because of radical
difference from Self) a voice of its own.
The target of Ruskola’s argumentation was the culture-bound view that was based on
cultural history and according to which there has never been real law in China. This
is the basic epistemic theoretical starting point of Western legal sociologists, legal
historians and comparatists, which only crumbled surprisingly late. With the real law
Western comparatists meant either as directly defined or implicitly the kind of law
that in Max Weber’s (1864–1920) classical sociology of law is referred to as legal
rationalism. Often Western comparatists connect the concept of real law with the
liberal legal system in general and with such an idea of constitutional State where the

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State delimits not only the competence of other actors but also its own competence—
it is a question of voluntary submission to the normative power of law.

From the point of view of comparative law, the traditional description has the
epistemic structural fault that it in fact does not so much describe Chinese law but
produces a Western representation of the legal culture of China, which tells more of
the comparatist than of the law in China. This is due to the fact the conceptual
instruments offered by the traditional sociology of law are not really applicable to the
study of Chinese legal culture because the traditional Chinese legal culture is not and
has not been ‘rational’ in the Western sense. Crucially, this does not mean that
Chinese legal culture would be necessarily ‘irrational’—much depends upon how
rationality is conceived and defined.

Ruskola criticises the various opinions that Western scholars have had of
law in China and its significance in different historical periods. Western
analyses are characterised by stability, which seems to be inconsistent
with the history of China. The ideas of several Western scholars on
Chinese legal culture have stayed surprisingly similar although the social
system has changed drastically. Many of these stereotypes that
epistemologically disturb comparatists have not only been stable as to
their content but also their functions have remained surprisingly similar:
they have reinforced the idea of the qualitative superiority of the
European-American civilisation in relation to the Chinese one.
At present, Western ideas are used to justify the attempts to transform
China into a State that would fit into the global neoliberal economic
system. The opinions according to which there has never really been
endogenously proper law in China serve Western scholars well in the
construction of their own identity instead of contributing to
understanding the otherness that Chinese legal culture represents.
According to the core of criticism, Western legal scholars kind of
educate and teach China what it means to be a State where there is
‘proper’ law. According to the critical analysis of Ruskola, it is the
implicit legal-cultural premises of the Western comparatist’s own that
cause implicit bias; on the other hand, these premises depend
unavoidably on how the scholar in question understands or defines law.
The problems introduced by Ruskola emerge also when Western legal
scholars want to teach the Chinese (or other Asians) what proper law is
like.
Undoubtedly, China is difficult to perceive because at present it is as a
legal culture a kind of hybrid between the Western regulation models, the
traditional Chinese legal culture and socialist system. Explaining it as a
legal culture that is based on Confucianism simply ignores the

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tremendous development in legislation that has taken place in China over
the past 30 years. On the other hand, if China is evaluated solely on the
basis of (transplanted) positive Western-style law, it is not possible to
obtain a profound grasp of the country’s legal culture; instead, one ends
up describing written positive law. And yet, it is not quite socialist either.
An example that well reflects the hybrid nature of law in China is the court system,
which is organised in the Western way but is not, however, politically independent.
For example, the Supreme People’s Court of China, Zuìgāo Rénmín Fǎyuàn (Chinese
) is responsible for its operation to the Congress and its Permanent
Committee. Judges are nominated for a term, which may increase the dependence of
judges on political decision-makers. However, law in Hong Kong, which belongs to
China, is to a large extent based on the English common law while in the law of
Macao, which also belongs to China, there is still a very strong Portuguese influence
on law and legal culture. For almost 500 years Portuguese law has been the main
reference which means that Macao is actually a bilingual (Portuguese and Chinese)
civil law system. According to the Chinese principle of ‘One country, two systems’
the Macao Special Administrative Region of the People’s Republic of China
(Portuguese Região Administrativa Especial de Macau da República Popular da
China) still maintains civil law as the legal-cultural foundation of its law.48

XII. DEPTH OF THE STUDY—DECISIVENESS OF

THE KNOWLEDGE-INTEREST
To complement what is said above, it is possible to perceive the
methodological and theoretical dimensions of comparative law by
starting from what the scholar is interested in, ie what is the specific
purpose of the comparative study (why one compares). Such an eclectic
approach results in a kind of perception that complements earlier
analyses and partly overlaps with them. In this way a pluralistic view can
be presented of modern comparative law that has broken loose from the
grip of (doctrinal) private international law.
It is now possible to identify several legitimate stages of comparative
law research, as not one of them is right or wrong as such. It is
significant that the scholars themselves recognise their own knowledge-
interest and apportion their study not only to it but also to the resources
available and their (or each individual’s own) ability. In short: if the
scholar does not know Russian, naturally a profound study of Russian
law or legal culture cannot be the aim. On the other hand, nothing
prevents using, for example, English translations if the scholar wants to

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make use of Russian law for some less demanding purpose. However,
one should not draw such an erroneous conclusion that an excellent
knowledge of the language would automatically result in an excellent
comparative study: command of language/s is just one of the skills that is
related to carrying out comparative research. Legal-cultural literacy is
more important than the technical mastery of a language, ie
methodological sensibility and sensitivity towards foreign legal material
is needed.
Activities that are carried out in connection with the drafting of
legislation, when models for the development or criticism of one’s own
law are searched for, can be considered first stage comparison. This is
not systematic comparison but action dictated by practical purpose and
need. At that stage it is only seldom possible to ponder the theoretical
background conditions of the study of foreign law to any great extent.
An example of the second stage comparison could be the harmonising
study interest that has over the past few decades gained great popularity
in Europe; with it the best or most economically efficient solution for a
socio-legal problem that occurs in several systems is looked for. The
modern practical human rights comparison often has such features in the
operation of the European Court for Human Rights. And in the EU Court
comparison is in the same way interested in solving problems and filling
in gaps in law, just like in a national court when foreign law is applied in
a case that belongs to the sphere of private international law. The EU
Court uses practical comparison when interpreting EU law to ensure it is
applied in the same way in all Member States. The second stage
comparison is more demanding than the first stage one because there has
to be an outside yardstick (eg economic efficiency etc) that gives
comparison a certain scale or common comparative framework.
The third stage comparison can be regarded as comparison within a
certain field of law where differences or similarities are looked for in a
more systematic way so that there is a conceptual reference frame that is
not from within the systems being studied. It is also characteristic of the
third stage comparison that there the knowledge-interest is often also
normative and virtually identical with the study interest of the doctrinal
study of law. It is fair to say that in practice it is difficult to tell apart the
comparison of the second stage and third stage, and often these interests
are intermingled. It is, finally, a question of what the comparatist
emphasises.
The fourth stage comparison is already completely inside the
knowledge-interest of comparative legal study, and there the scholar

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looks for explanations for differences and similarities so that the study in
parts comes close to the sociology of law, legal history and legal
anthropology. As comparative legal study, the fourth stage is described
by the fact that the scholar no longer has a normative knowledge-interest
nor are they any more epistemically committed to any specific national
or international knowledge-interest. The fifth stage comparative law is
difficult to tell apart from the fourth stage because often the fourth stage
comparative law irrevocably results in fifth stage problematisation,
including the development of the theory and methodology of
comparative law. Also macro-comparison, ie classification of legal
cultures or legal families, typically belongs to the fifth stage comparison
although also other comparative settings benefit from these findings both
in teaching and research (chapter nine, section IV).
The above-mentioned stages are simplified methodological blueprints,
and the list is by no means complete. Naturally it is possible that, for
example, a court applying foreign law would end up drafting a research-
level account of that law. On the other hand, a judgment is not a research
report. The above illustrative listing aims at demonstrating that there are
several different fields in comparison as well as many legitimate ways to
compare. What is at stake here? Ultimately it is a question of the fact that
the pluralism of modern law is accepted also in the methodology of
comparative law. What is provided here is not a ready-made choose-and-
use or one-size-fits-all methodology; instead, the scholar has the final
responsibility: no methodology or method saves the study if comparison
is not used to serve the comparatist’s own starting goals. In short:
superficial ritualistic comparison could not be more useless. If the
comparison serves no rationale, then why compare at all?
What is said above contains a useful common sense methodological
idea. It is quite likely that for every comparative study project an
individual way to approach has to be built. Accordingly, what is essential
in comparative law is that instead of hollow imitation of a specific
method or approach, foreign law is given fair treatment and the study is
carried out as honestly and accurately as possible.
If and when this kind of common sense attitude to the methodology of
comparative study is assumed, simultaneously the methodical-theoretical
straight-laced attitude is given up and it is accepted that no general all-
inclusive theory of comparison exists. Owing to a lack of a one-size-fits-
all method, the comparatist is personally accountable for the method(s)
used. Reporting of research results should be comprehensible and open:
the reader ought to be able to grasp what is said and on what grounds.

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Another point of view that in this connection ought to be abandoned is
the disciplinary independence of comparative study as a field of legal
study, which esteemed theorists in the twentieth century emphasised; in
the conditions of the present-day disruption of the nation-State, it is no
more the relevant intrinsic value that it earlier was considered to be.
This would mean that the attitude to the comparative study method
ought not to be seen as a separate theory or approach but as a principle
related to all jurisprudential study. And, if we think in this way, then the
most important and possibly the only actual tool for study is an open and
inquisitive mind. What is significant is the degree of seriousness and
compassion with which comparison is performed and how thoroughly
the conclusions are argued: foreign legal documents and practices have
no way of speaking for themselves for those who look from the
outsider’s epistemic point of view. It is the comparatist’s task to make
foreign material ‘speak’: first to the comparatist themselves and then to
those who read the published outcome of the research. Finally, it also
remains a task for the comparatist to speak on behalf of all the compared
systems within the framework of the research performed.

XIII. RESEARCH ETHICS

It is not possible to define research ethics conclusively but it refers to the
practices that belong to the research process and which are approved of
in the scholarly community. It is a question of the internal control within
the scientific community that includes research-ethical principles. Those
principles are the guidelines also for comparative study and they have
one main purpose: they are to prevent in advance so-called bad scholarly
behaviour and enhance good research practices.
Several ethical points of view are included in the stages of the research
process in comparative law. As it presumably is not possible to perform
such a study under laboratory conditions, occasions involving ethical
problems are not downright clear. In its most common form, research
ethics means using the methods and practices accepted by the working
community of legal scholars for planning and performing the
comparative study and reporting on it at a later stage. In the investigation
of foreign law carried out in the context of private international law,
these practices are not truly required because an internal view and
normativity bound to judicial function (what law should be applied to the
case at hand?) are not comparable to research.

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If the comparatist investigates factors that are culturally sensitive, as
can be the case in the study of the law in other cultural spheres, they
must also consider the ethical decisions more thoroughly. For example,
when interviewing individuals or hearing informants, attention has to be
paid to whether hearing them has an impact on their position as part of
their own communities. In the same way it can often be well grounded in
individual cases to use other neutral expressions (eg the accused,
plaintiff, person A, person B etc) instead of personal names.
If in the study of foreign law material containing personal data is
collected or if a topic is politically, culturally or religiously sensitive, the
comparatist should be on the alert. The same applies to potential
practical assignments in connection with which it is advisable to think
what kind of knowledge needs one wants to fulfil and what kind of aims
one wants to promote with one’s comparative knowledge. A classic
example is a well-paid expert assignment abroad offered by a
government with a notorious reputation: from the point of view of the
research ethics of comparative law, which emphasises universalism,
accepting an assignment like this in an expert’s role seems (when
observed from outside) to be coarse scholarly behaviour indeed.

A. Honesty in Research

Research-ethically there are at least two central issues in comparative

law: the control of the tension that is due to cultural differences and the
honesty in carrying out research. In the first-mentioned case it is a
question of the tension that is created between (unknowingly) defending
one’s own legal-cultural Anschauung and the respect for the foreign legal
cultures. The comparatist ought to find a balance between their own legal
values (eg respect for human rights, democracy, the rule of law) and the
cultural respect they have towards the foreign legal culture. To be sure,
there is no need to reject one’s own values but it is worthwhile to make
them known to oneself and to the readers (cf epoche approach).
Secondly, in the tension mentioned the question is of the fact that the
comparatist bases their arguments on the research made and truly on the
sources that have been available (and are specifically referred to). The
purpose is to avoid a situation where the aim of the comparatist’s work is
only to strengthen the opinion that they already held before comparison.
Ideally, the comparatist should be open to acquiring new knowledge and
have a relaxed attitude towards the crumbling of their own advance
hypotheses. So, it is not acceptable to cook up a story of one’s own and

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to patch it with sources that support the cook-up, if other sources do not
support the story. Overall balance is probably not fully attainable but as a
goal it certainly has a legitimate place in comparative methodology.
A certain epistemic and cultural veneration for foreign law is among
the fundamental ethical starting points of modern comparative law. It is a
question of the attitude to research of foreign legal cultures. The purpose
is not to praise foreign law blindly or to reprimand it as deranged. The
aim is to become aware of one’s own strong epistemic and cultural
prejudices. This does not so much influence the conclusions of the
comparatist; it is acceptable to call something bad if it is bad or good if it
is good, on the condition that there are grounds and criteria for doing so.
If the socio-legal solution studied in foreign legal culture is contrary to
human rights, it can of course be brought up—there is no place for
affectation (legal xenophilia, ie an affection for foreign law/legal culture)
if justified criticism is called for.
Ultimately, it is a question of methodological sensitivity in the study
of foreign law and legal culture without upholding the belief of the
automatic superiority or inferiority of one’s own law. Of essence, here, is
which measuring tool is used: does it favour a certain system? In short,
the comparatist should not take sides before actual research has taken
place. Comparative study may weaken or strengthen the beliefs or
stereotypes that the comparatist has; however, what happens ought to
happen on the basis of actual comparison and not on the basis of prior
beliefs or stereotypes.
Among the typical ethical problems in comparative study there is an
unbearable phenomenon that occasionally appears and which could be
called intentional cover-up. Here the question is that the comparatist
should openly report to the readers the sources that are in a foreign
language and to other domestic scholars the sources that are difficult to
understand/or obtain. If thoughts and ideas that the comparatist presents
as their own are in fact those of foreign scholars, the comparatist clearly
breaks the study ethics.
The achievements of the legal scholars from foreign legal cultures
must be taken into consideration in a proper way and to refer to them
properly and with sufficient exactness even though one’s own readers
would not be able to understand them owing to the language used. This
is, perhaps, the most attractive form of plagiarism when the scholar has
an opportunity to make use of material in rare languages. Knowledge of
rare languages is a strength factor for an honest comparatist, not

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something that tempts the comparatist to turn into a scholarly pickpocket
hiding under linguistic clothing.

XIV. COMPARATIVE METHODOLOGY—

HEURISTICS?
In this chapter a variety of methodological basic choices that have to be
made before and during the comparative study were introduced. At the
same time it has become obvious that the methodological toolbox for
comparison does not form an exact methodology but contains instead a
number of useful rules of thumb. Owing to the plenitude of legal cultures
and the interests of the comparative scholars, the theory and
methodology of comparative law is for the most part heuristic in nature.
The exactness of natural sciences is only partly realised in comparison.
Heuristics is related to the study process because it is an approximate
method by means of which it is usually possible to get sufficiently close
to a good end-result. Owing to its basic nature, a heuristic method is not
exact. Among typical heuristics are rules of thumb or educated academic
guesses both of which are based on limited but sufficiently large amounts
of knowledge. Applied to the study process, it is a question of the
comparatist not having to think with one’s own method about everything
from the start. Heuristics does not offer ready-made or one-size-fits-all
solution models of how comparative study can be constructed. It is a
question of a kind of art of discovery, which is based on the Greek word
for ‘I found’ or ‘I exposed’, ie hevrísko (εύρίσκω).
The methodology of comparative law can owing to its nature be defined as a
heuristic compilation of rules of thumb on exposure and discovery in comparative
law. Here it is fitting to quote the words of Finnish legal philosopher Otto Brusiin
(1906–73):

The methodological general lines that the comparatist outlines when beginning the
process are just clarifying work hypotheses that they over the process frequently have
to check. But in case they have no conscious guidelines to start with, comparative
law easily becomes a confused collection of separate details.49

In other words, the comparatist has to have some guidelines with regard to what they
are doing and why. A general idea of the comparative process helps to carry the study
through, and here comparative heuristic methodology has a natural place and role.

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Although the choices discussed above are rather concrete in nature, what
is lacking is the fact that hardly anything concrete in the interrelation
between the choices and process of comparison has been mentioned. The
same shortage applies to almost all literature on comparative law:
demands pile up but concrete examples of how to actually go about
comparison do not. It is rare to see practical and organised descriptions
that are presented in an explicit form on the different phases of the
comparative law study process and the issues related to the different
phases. The comparatist however is not completely lost, not even at the
early stages of their career. It is possible to use studies completed earlier
for model learning, ie experiental learning, which benefits from models
but is not the same as the pure imitation of other studies.
Many writers give some sort of advice and hints but they are not
coherently connected to the actual study process. Partly this is due to the
heuristic nature of the comparative law methodology, which means that
getting acquainted with model studies and experiental learning from
them is of great significance. This does not perhaps differ from the
nature of law itself as the famous American judge and legal scholar
Oliver Wendell Holmes (1841–1935) said as early as in 1881: ‘The life
of law has not been logic: it has been experience’.50 This idea of Holmes
can be interpreted in many ways, but it fits extremely well the
methodological experiences of comparatists of their own field.

1 Dewey’s ideas on education are best presented in his book Experience and
Education (New York, MacMillan, 1938) in which he explains his educational
philosophy.
2 For a more detailed discussion about how hermeneutical theory may provide useful
principles for educational thinking, see S Gallagher, Hermeneutics and Education (New
York, State University of New York Press, 1992).
3 E Örücü, ‘Methodology of Comparative Law’ in J Smits (ed), Elgar Encyclopedia
of Comparative Law (Cheltenham, Edward Elgar, 2006) 442–54, 446.
4 D Bradley, ‘Family Law’ in Elgar Encyclopedia, 2nd edn (2012) (n 3), 314–38,
333.
5 ‘Οι μέθοδοι που χρησιμοποιούνται ή που πρέπει να χρησιμοποιούνται να είναι
περίπλοκες διότι ενεργοποιούνται σε μια ποικιλία διαφόρων επιπέδων και όσο
υψηλότερο είναι το επίπεδο, τόσο πιο δύσκολο είναι το να διαχωρισθεί η μεθοδολογία
από την επιστημολογία και τη θεωρία’, E Moustaira, Δικαιικές επιρροές στο πλαίσιο του
Συγκριτικού Δικαίου (Athens, Sakkoula, 2013) 27.
6 ‘À un niveau micro-juridique, il est tout d’abord possible de comparer des
institutions particuliéres, ou des questions particuliéres … À ce niveau macro-juridique
la comparaison a alors pour objet le fonctionnement des systémes juridiques, et leurs

172
caracté ristiques fondamentales’, G Cuniberti, Grands systèmes de droit contemporains,
2nd edn (Paris, LGDJ, 2011) 13.
7 W Burge, The Comparative Law of Marriage and Divorce (London, Sweet &
Maxwell, 1910, originally 1838, pt 3 in the Series Commentaries on Colonial and
Foreign Law).
8 R Hyland, Gifts—A Study in Comparative Law (New York, Oxford University
Press, 2009).
9 See G Sauser-Hall, Fonction et méthode de droit compare (Geneva, Kundig, 1913)
(droits aryens et indo-européens, droits sémitiques, droits mongols, droits barbares).
Sauser-Hall really based his classification on race; each race had its own legal evolution
which could be found inside each race (‘qu’à l’intérieur de chaque race’, 63).
10 E Glasson, Le mariage civil et divorce dans l’antiquité et dans les principales
législations modernes de l’Europe (Paris, Durand et Pedone-Lauriel, 1880). Reprinted
by Nabu Press in 2011.
11 See J Raitio, The Principle of Legal Certainty in EC Law (Dordrecht, Kluwer,
2003) ch 1.
12 A Watson, Legal Transplants: An Approach to Comparative Law, 2nd edn (Athens
GA, University Georgia Press, 1993).
13 H Pihlajamäki, ‘Vertaileva oikeushistoria muuttuvassa maailmass a’ (2009) 38
Oikeus 420, 423.
14 See O Kahn-Freund, ‘On Use and Misuse of Comparative Law’ (1974) 37 Modern
Law Review 1 (‘its use requires a knowledge not only of the foreign law, but also of its
social, and above all its political, context’, 27).
15 ibid.
16 See P Legrand, ‘The Impossibility of Legal Transplants’ (1997) 4 Maastricht
Journal of European and Comparative Law 111.
17 See G Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law
Ends Up in New Divergencies’ (1998) 61 Modern Law Review 11 (‘it works as a
fundamental irritation which triggers a whole series of new and unexpected events’,
11).
18 R Michaels, ‘One Size Can Fit All’ in G Frankenberg (ed), Order from Transfer—
Studies in Comparative Constitutional Law (Cheltenham, Edward Elgar, 2013) 56–78,
78.
19 T Tohidipur, ‘Comparative Constitutional Studies and the Discourse of Legal
Transfer’ in Frankenberg, Order from Transfer (n 18) 29–35, 33.
20 See M de S-O-l’E Lasser, Judicial Deliberations—A Comparative Analysis of
Judicial Transparency and Legitimacy (Oxford, Oxford University Press, 2004).
21 M Gelter and M Siems, ‘Citations to Foreign Courts—Illegitimate and
Superfluous, or Unavoidable? Evidence from Europe’ (2014) 62 American Journal of
Comparative Law 35.
22 See eg N Loukacheva, ‘Indigenous Inuit Law, “Western” Law and Northern
Issues’ (2012) 3 Arctic Review on Law and Politics 200.
23 D Pearl and W Menski, Muslim Family Law, 3rd edn (London, Sweet & Maxwell,
1998) 75.
24 P Jessup, Transnational Law (New Haven, Yale University Press, 1956) 1–2.

173
25 J Smits, The Mind and Method of the Legal Academic (Cheltenham, Edward Elgar,
2012).
26 C Mallat, ‘Comparative Law and the Islamic (Middle Eastern) Legal Culture’ in M
Reimann and R Zimmermann (eds), The Oxford Handbook of Comparative Law
(Oxford, Oxford University Press, 2006) 609–39, 611.
27 L Rosen, Law as Culture: An Invitation (New Jersey, Princeton University Press,
2006) 6 (‘law is so deeply embedded in the particularities of each culture that carving it
out as a separate domain and only later making note of its cultural connections distorts
the nature of both law and culture’, xii).
28 W Menski, ‘Postmodern Hindu Law’ (2001) SOAS Law Department Occasional
Papers 1–42, 30.
29 Fiqh does not directly correspond to the Western view of jurisprudence or the
doctrinal study of law, but it is very close to them. It is a question of scholarly activity
carried out by jurist-theologians, a result of which legal literature that is based on
analogies has been created. It refers to Islamic rulings on the basis of sources of Islamic
law (collective sources of Muslim jurisprudence or general principles of Muslim
jurisprudence usul al-fiqh). A classic introduction to Islamic law is Noel Coulson’s
(1928–86) book A History of Islamic Law (Edinburgh, Edinburgh University Press,
1964).
30 HT Klami, ‘Comparative Law and Legal Concepts’ in Oikeustiede-Jurisprudentia
(Helsinki, Suomalainen Lakimiesyhdistys, 1981) 1–97.
31 M Rheinstein, ‘Comparative Law—Its Function, Methods and Usages’ (1968) 22
Arkansas Law Review 415, 421.
32 E Örücü, The Enigma of Comparative Law: Variations on a Theme for the Twenty-
First Century (Leiden, Martinus Nijhoff, 2004) 213.
33 Richard Hyland, Gifts—A Study in Comparative Law (Oxford, Oxford University
Press, 2009).
34 B Stolte, ‘Is Byzantine Law Roman Law?’ (2003) 2 Acta Byzantina Fennica 111,
122.
35 W Maitland, Selected Historical Essays HD Hazeltine, G Lapsley and PH
Winfield (eds) (Cambridge, Cambridge University Press, 1936) 129.
36 B Häcker, Consequences of Impaired Consent Transfers A Structural Comparison
of English and German Law (Oxford, Hart Publishing, 2013).
37 See eg M Kurkchiyan and DJ Galligan (eds), Law and Informal Practices: The
Post-Communist Experience (New York, Oxford University Press, 2003).
38 N MacCormick and RS Summers (eds), Interpreting Precedents—A Comparative
Study (Dartmouth, Ashgate, 1997).
39 For a more detailed discussion, see S Haeri, Law of Desire: Temporary Marriage
in Shi’i Iran (Syracuse, Syracuse University Press, 1989).
40 See AA An-Náim (ed), Islamic Family Law in A Changing World: A Global
Resource Book (London, ZedBooks, 2002) providing a view of different interpretations,
customary practices and State policies concerning Islamic family law.
41 JM Otto, Sharia and National Law in Muslim Countries (Leiden, Leiden
University Press, 2008) 6.
42 See M de Visser, Constitutional Review in Europe—A Comparative Analysis
(Oxford, Hart Publishing, 2014).

174
43 For more extensive comparative discussion, see RJ Terrill, World Criminal Justice
Systems: A Comparative Survey, 8th edn (New York, Routledge, 2014).
44 M Siems, Comparative Law (Cambridge, Cambridge University Press, 2014) 109–
16.
45 P Legrand, ‘European Legal Systems Are Not Converging’ (1996) 45
International and Comparative Law Quarterly 45.
46 J Bell, ‘Legal Research and Comparative Law’ in M Van Hoecke (ed),
Methodologies of Legal Research (Oxford, Hart Publishing, 2011) 169.
47 T Ruskola, ‘Legal Orientalism’ (2002) 101 Michigan Law Review 179. For a more
recent and theoretically refined version, see T Ruskola, Legal Orientalism: China, the
United States, and Modern Law (Cambridge MA, Harvard University Press, 2013).
48 See I Castellucci, ‘Legal Hybridity in Hong Kong and Macau’ (2012) 57 McGill
Law Journal 665.
49 O Brusiin, ‘Oikeusvertailusta’ (1954) 52 Lakimies 434, 439.
50 OW Holmes, The Common Law, first published 1881 (New York, Barnes &
Noble, 2004) 1.

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7

Comparing—Differences and
Similarities

WHAT HAS BEEN said above has made it obvious that getting
acquainted with the contents of foreign legal systems or the parallel
description of different legal systems is not really comparative law as
such. To be sure, parallel description of foreign legal systems inevitably
requires steps and measures that are part of the comparing law process
(such as translation and systematisation of the source material). Such
activity can fittingly be described by the German concept
Auslandsrechtskunde, which means informed description of a foreign
law to the legal community of one’s own country. On the other hand,
there is the knowledge of one’s own law, ie Inlandsrechtskunde. The
comparatist cannot acquiesce in the mere description of systems on the
basis of parallelism only; instead, they should aim further towards
understanding and explaining. In fact, the urge to understand and explain
is what separates comparative research from mere analytical description.
Committed and systematic comparison between more than one legal
system or between their specific parts is the core of comparative law.
The aim of comparison is not to produce general presentations of law,
such as legal system A, legal system B, legal system C, but to create
knowledge about differences and similarities by means of comparing.
Nor is it sufficient simply to describe the application of a foreign law by
introducing correct facts and findings. In serious comparative law it is
crucial to proceed further than to Auslandsrechtskunde and to try to find
explanations for the differences and similarities that are found by
comparing. The methodological core questions central to comparative
law are as follows: what is compared and how is it done? One of the key

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question concerns the yardsticks (standards used in comparison) by
means of which the comparison is carried out. Whole comparison is
methodologically crystallised into the yardstick although the final aim is
a well argued explanation of differences and similarities.

I. NEED FOR A YARDSTICK FOR COMPARISON—

TERTIUM COMPARATIONIS
For the comparison to make sense, the objects compared must have at
least some common characteristics or features, which form the common
denominator for comparison. This is no small feat. Here care has to be
taken; it is not a question of the similarity of the objects compared but of
the fact that the certain qualities are compared from different points of
view. Fundamentally, it is a question of commensurability: of a common
feature in a matter that interests the comparatist. However,
commensurability does not imply stressing similarities and putting aside
the differences. In short, commensurability does not presume similarity
—anyway, what would be the point in comparing things that are similar?
To put it another way, a common feature (a quality shared by two or
more) enabling comparison is not the same as a similar feature. Chloë J
Wallace says it well:
Rather than choosing to prioritise similarity or difference, ways can be found of
translating human experience across (legal) cultural difference, and treating that
difference as something other than fascinating strangeness.1

In the mainstream theory of comparative law this common feature is

referred to with the reconstituted (ie not actually a classical expression)
Latin expression tertium comparationis. It is necessary not only in
comparative law but in all comparative research in general. Tertium is
not equal to some comparative common denominator, but is instead a
methodological term of a higher abstraction level that is not actually
concretely connected with the object compared and is used as the
common denominator that makes comparison possible. It refers to a
common quality that two things, which are being compared, share.
Importantly, without it comparison in a disciplined sense is not possible.
The common denominator can be a shared feature or function by
means of which comparison becomes sensible. As such, this
methodological principle is simple and follows common sense. For

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example, it would be quite absurd to compare the tastes of pasta and
washing-up liquid. However, if we wanted to compare their colour,
chemical composition or weight, comparison would not be impossible
although the sense of it would probably still be highly questionable. The
point of the characteristics compared is a factor for which each
comparatist is personally responsible (because of the comparative
framework constructed by the comparatist themselves), but the
possibility for comparison is an absolute prerequisite. Without at least
some element of commensurability the comparison turns into an idle
exercise.
In light of the above, one of the most important tasks of the
comparatist is to choose a yardstick by means of which the comparison is
carried out. Unfortunately, the choice of the yardstick for comparison is
at the same time also one of the most difficult methodological tasks of
the comparatist. In any case, the answer to the problem with the
comparability of cases always depends on the context in which one
wants to compare the objects selected. It is a question of the epistemic
point of view taken to the objects chosen for study; from the framework
of approach to the theme.
Tertium is Latin and means third, ie in this case tertium comparationis is the third
part of the comparison. It is a question of a yardstick that enables comparison. So, if
we want to know what is regarded as cold or warm weather, we need a scale. The
scale can be, for example, the Celsius scale by means of which temperature can be
measured. In such a case the Celsius scale is a yardstick that allows comparisons and
defines temperatures that are above (+) or below (–) zero. Without such a yardstick it
would not be possible for people to evaluate commensurately the temperature of, for
example, the popular holiday destinations. Naturally one has to define also what is
defined as hot, and on which grounds, when using the Celsius scale. In the same way
we can say that apples and oranges are comparable although according to a well-
known figure of speech, apples and oranges cannot be compared: if acidity,
nutritional value or colour is used as the yardstick, sensible comparison is possible.

That is: a comparatist in the field of criminal law could consider, for example, the
system of criminal sanction in system A as severe, in system B as lenient and in
system C as something between the two when the case in question concerns judging
crime X committed in circumstances Y by actor Z (in circumstances where the
evidence is not disputed). In order to be able to draw these conclusions, they must
investigate a similar crime that has been committed by a similar actor in
circumstances with corresponding facts. In addition, the comparatist needs a
yardstick, in this case a cause on the basis of which they consider the system severe
or lenient (eg the duration of imprisonment, harshness of prison conditions etc). The
yardsticks applied enable the inspection of the same case in different systems so that

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systems are evaluated on the basis of similar criteria. Yardsticks are by no means
objective and are not particularly scientific, but because of them, balanced
comparison becomes viable. In short, the same yardstick but a different system.

As above, in a functional comparative setting the rules, institutions or

legal practices have to serve roughly the same problem-solving task as
part of a legal system in order for it to be sensible to compare them.
Structurally similar elements or legal institutions found in structural
comparative law are studied in order to be able to explain what kind of
tasks—deviant or convergent —the structures have in the legal systems
studied. In such cases the functions of the institutions compared are
different in different legal systems, but the institutions are, however, the
same (functionally).
For example, functionally it would be justified to compare, for
example, the Constitutional Committee of the Finnish Parliament and the
Constitutional Court of Italy if the study object were to be the control of
constitutionality, while in structural comparison the corresponding
organs would be the Supreme Court of Finland and the Supreme Court
(or Constitutional Court) of Italy, which as judicial institutions are
similar at least in the sense that they operate as the highest courts of their
country. But what does this mean from the point of view of tertium
comparationis? Now, it is possible to compare the supervisory organs of
constitutionality in many respects: nature of norm control
(concrete/abstract); controlling organ (court/other organ); organisational
control (centralised/decentralised); effect of control (regulation
annulled/regulation stays in force) etc. It is also possible to speak of
different legal-cultural features in the supervision of the constitutionality
of laws. For example, the German Robert Kessel perceives a special
Scandinavian norm control model which differs from the German
model.2
The scholar’s own interest is again vitally important: tertium does not emanate by
itself from preparatory work on legislation, positive law, court cases, normative
customs or legal literature, and it is not a question of tertium meant by the legislator
or any individual actor. On the basis of what the comparatist has read and learnt, they
themselves have to build a yardstick or several yardsticks (tertia comparationis) out
of which they investigate the systems chosen; the comparative framework is of the
essence here.

It would be essential that the yardstick is not built implicitly on the basis of the
comparatist’s own legal culture, but that the yardstick would methodologically treat
the objects of study somewhat impartially—in spite of their differences. In

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jurisdiction the yardstick is in most cases a legal-conceptual framework, which
should not directly reflect any of the systems studied. As the well-known legal
anthropologist and the scholar of legal pluralism Franz von Benda-Beckman (1941–
2013) states: ‘For intercultural and historical comparison one needs analytical
concepts’.3 And the comparative yardstick is just the sort of analytical concept that
he means.

In systemic comparison the socio-legal solutions to various problems are

detached from their national context and set parallel to the solutions
adopted by the other legal systems compared. The systemic comparison
does not presume that the legal solutions compared are necessarily each
other’s functional counterparts. Tertium comparationis is in this case too
a conceptual context (framework) that the scholar has constructed, and
its existence is based on the assumption that the system-specific
solutions are commensurable to the extent that it makes sense to compare
them. Also in the systemic comparison the comparatists themselves build
the conceptual context or the theoretical framework (eg constitutional
classification or referendum typology) by means of which it is sensible
to compare them. For example, a political ideology can also be in
question, such as, for example, liberalism in the USA versus the welfare
state ideology of Sweden, according to which the entire social order (and
accompanying legal basic solutions) has been formed. Such legal-
ideological differences can explain many characteristics in the field of
social welfare and labour law as well as in economic, social and
educational rights.
In comparative law the interest is focused in most cases on the
comparison of different rules or more specifically on how different legal
systems have solved a similar (in a broad sense) socio-legal problem.
The basic requirement of this kind of comparison is that the legal rules to
be compared concern at least roughly the same thing. What is
problematic is the fact that the equivalence between legal rules or
institutions is in fact solved only after comparison. This presumes that
the comparatist even before the start of study has working hypotheses by
means of which the material for the study is gathered in the first stage
(methodological choices of a technical nature are specified on the basis
of this starting hypothesis—one needs something to build on the initial
comparative framework).

A. Tertium and the Preference for Functional Comparison?

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From among the basic comparative strategies, the functional approach
seems to offer the clearest and seemingly least problematic answer to the
problem of comparability. In the twentieth century this approach gained
the position of a paradigm, as explained earlier in this book. This, as
such, is no wonder because it offers simple common sense rules
according to which comparison can be carried out. It might make sense
to note that comparative law’s functionalism bears hardly any
resemblance to the functional approaches of social sciences.
Functionalism in comparative law is mainly a construction of practical-
minded jurist scholars who have moved over from private international
law, the first fumbling attempts of which were sketched as early as in
1900 at a conference in Paris. Its starting point is clear: the aim is to
detach the comparatist from the misleading labels and legal-cultural
assumptions of their own law. The core of the ideological inheritance
still makes sense in the twenty-first century even though its position as a
leading methodological paradigm has been challenged by many.
The approach gained its paradigmatic position internationally when
the classic work of Zweigert and Kötz was translated into many
languages. In the last few decades functionalism has been heavily
criticised by different condemning comparatists but, notwithstanding, in
practice the dominating position of functionalism seems not to be
threatened. But nowadays the approach is not the dominant force and
there is no reason to regard it as the only correct method—because it is
not. All the same, it belongs to the methodological toolbox of a
comparatist, and perhaps there is still room for it in the toolbox of private
international law, too.
Criticism of classical functional comparative law, as it is still frequently referred to,
was presented by Professor Günter Frankenberg from Germany as early as the mid-
1980s in his seminal article Critical Comparisons.4 Frankenberg’s article started
critical discussion on functional comparative law. The discussion has not yet abated.
A good overview of the discussion is presented by Professor Ralf Michaels from
Germany in his extensive article about the functional method in 2006.5 While
Frankenberg with juicy exaggeration and witty sneer made fun of functionalists,
Michaels’ starting point is that the fault with functionalism is that it has not been
developed far enough as a scientific comparison method. This author has been
developing a view that mediates between these extreme interpretations.6

To be sure, much of the criticism of functionalism has been justified. On

the other hand, the basic ideas of functional comparatists are still useful,
particularly for comparative lawyers, at least in the heuristic sense.

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Accordingly, if the comparatist really wants to study the contents of
different legal systems, it makes absolutely no sense to rely on similar
labels (so-called homonymy) of legal rules, institutions or concepts as the
starting point. In this respect the fundamental methodological principle
of functionalism has not fully disintegrated.
It seems that it is possible to avoid some problems burdening the
comparative framework if functional commensurability is taken as the
starting point for comparison. In such cases the shared function is the
common denominator, which simultaneously is the tertium
comparationis of comparison. However, it is essential to notice that
tertium is not an objective point of observation; constructing it does not
make the study scientific in the sense of natural sciences. Frankly, the
newly created Latin term tertium comparationis has a handsome ring
about it, but it is a mere rule of thumb. On the other hand, it is possible
by means of tertium to carry out analytical and systematic comparison
where the aim is to treat different objects of comparison relatively in the
same way despite their dissimilarity.
If the yardstick for comparison is chosen on a functional basis, it
however has to be realised that the actual function of legal rules is what
counts, and not, for example, convergent aims (legislator’s inventionie
ratio legis) that are pursued by positive law or by the courts. Surprisingly
perhaps, even functionalism presumes a context for legal rules. Rabel
formulated this contextualism in the 1920s: ‘Law void of the legal
practice related to it is like a skeleton without muscles. The nervous
system is formed by the prevailing doctrine’.7
Such methodological requirements presume acquaintance with legal
practice, which means that written law, precedents and official
preparatory material (travaux préparatoires) form only a part of the
relevant sources. On the other hand, these requirements are factors that
undoubtedly complicate functional comparison and make quite
considerable methodological demands on comparison. And, it must be
borne in mind, functionalism is not always applicable even in all
practical purposes.
An example of a special case is the fact that in the field of international law the
intentional interpretation is emphasised in the Law of Treaties, which means that
travaux and the circumstances prevailing at the time of the treaty’s preparation have
great significance in interpretation. Article 31 of the Vienna Convention on the Law
of Treaties 1969 contains a general interpretation rule, according to which treaties
between States shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of its

182
object and purpose. In this respect the comparatist has to observe in the international
Law of Treaties the intention of the treaty regulations as the primary factor in
functional comparison.

Although functional comparative law has been moderately emphasised

above, it has to be observed that when tertium comparationis is searched
for, the interests, aims or principles at the basis of legislation can also be
the aim of comparative law. The comparatist can also try to reconstruct
intentional explanations in which case the targets of study are the
intentions (eg ratio legis), scientific theories or political ideologies that
are behind a certain legal decision. For example, attempts have often
been made to explain EU case law with the integration ideology. And
law and economics researchers are interested in the economic efficiency
of law and other such things instead of legal functions.
However, to study legal intentions is clearly more difficult than to
construct a comparative framework on the basis of rough functional
comparability. It is difficult by means of research to genuinely pinpoint
intentions, interests and aims, and often an approach with a strong touch
of intellectual history is needed alongside legal material.
An example of demanding historical and legal-theoretical comparison is the study by
Finnish Professor Juha Tolonen of the development of legal regulation related to
limited liability companies.8 Tolonen studied company law theoretically and
comparatively in the 1970s and shows how various economic and institutional
theories have been developed in the context of a market economy. The central
(micro-economic) explanatory model for the legislative changes is constructed on the
divergence of the economic theory from the so-called classical theory towards the so-
called dynamic theory. Subsequently, steps have been taken in the same direction
within the framework of the legal origins theory but with considerably more
economic emphasis.

II. DIFFERENCES AND SIMILARITIES

To explain foreign law means to make it plain and render it intelligible
so it becomes easily understandable. One of the central aims of
comparative law, a rather bold one, is to comprehensibly explain the law
of mankind in different contexts. Understanding the law of the compared
systems is vital in order for the comparatist to be able to explain the
reasons for the similarities and differences they have found: why in
system A is the prerequisite for liability for damages a clear causal
connection between the act and the damage caused, but in system B an

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assumption of a causal relationship in connection with the intent or
negligence of the originator. Circular reasoning here is not sensible: in
system A the matter is caused by provision X, and in system B the matter
is caused by provision Z. Such an explanation lifts itself up by the
bootstraps because it does not explain why in systems A and B different
approaches have been adopted to solve the same legal problem (defining
the party liable for compensation). A wider perspective is needed if and
when comparison steps away from mere description and ventures into
explanation.
It is especially arduous for the comparatist to break loose from the
influence of their own legal culture and to look at their own and foreign
law fairly, without unintentional ulterior motives (bias). In this respect
the comparatist’s work approaches anthropology and ethnography: for
lack of hard scientific proof, statistical conclusions and conclusive
evidence, material has to be interpreted, and different hints and clues
have to be looked for. In practice, power of deduction, imaginative
thinking and legal literature are more essential than statistics, formal
legal texts or the national doctrinal study of law.
The comparatist’s work gets all the more challenging when they begin
to look for clues needed for explanation. The task is comparable with
detective work where the criminal is uncovered by means of small
details, or clues that do not reveal anything for someone who is
uninformed on the matter. In the same way, the hunter in the past was by
means of seemingly unimportant traces (footprints, broken branches,
scent etc) capable of formulating a sort of hunting reality, which was not
concrete as such. It is a question of observations forming a narrative
continuum where it is possible to understand the plot and its
development: things just seem to fall into their natural places forming a
narrative. The plot method (or method of clues) has been sketched by art
historian Carlo Ginzburg (b 1939) in particular.9 This method suggests
that informal, almost an intuitive, knowledge allows us to conceive much
better than what can be directly seen. In other words, on the basis of the
material that the comparatist has gone through and analysed, it is
possible to proceed towards explanations up to the point where the
interpreted and organised pieces of evidence fit together and narrative
emerges. In the same way, the comparative research report narrative
should have a plot and be a comprehensible entity for its readers, not a
descriptive list of facts like a telephone catalogue that moves from
country to country—in the age of the Internet these kinds of catalogues
are simply outdated.

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Methodologically looking for clues—particularly in the explanatory
phase in the case of comparative law —is compatible with ethnographer
Clifford Geertz’s (1926–2006) methodological concept of thick
description.10 In this case it means a thick description of the legal
cultures under study. Legal cultures here are normative systems that are
constructed of established legal structures of meaning: they are the
context of legal culture (written, unwritten) where various actors
(legislator, judge, researcher, laypeople) are in interaction with legal
rules and institutions. While the comparatist attempts to explain
differences and similarities, they simultaneously conceptualise and
theorise their research objects: it is a question of reconstruction of law
where the comparatist from the viewpoint of an epistemic outsider kind
of simulates the action of jurists in different systems. Thickness offers
some kind of methodological backing: the thicker the description, the
more credible the conclusions. Or vice versa: the thinner the description,
the more unconvincing the credibility.
Now, comparative law research does not seem to fulfil the
requirements for a study setting as in the natural or exact sciences, but it
still attempts to avoid bias and prejudice. The comparatist tries by means
of its own research setting to get rid of ethnocentrism and legal-cultural
bias, but it is probably virtually impossible to completely break loose
from the influence of one’s own cultural sphere. Neither can the
comparatist become fully detached from their own conception of the
world and the deeply rooted basic ideas on, for example, what is right
and what is wrong or if human rights are universal or not. And yet, it is
still possible to attempt to reduce adverse effects, ie identifying and
avoiding bias is important for sustainable comparative research practice
(cf epoche approach).
Owing to these factors the comparatist naturally mostly looks for such
explanatory factors as they find possible and sensible on the basis of
their experience of the world of law. Therefore, they also unconsciously
refrain from many such potential explanations and insights that another
comparatist might perhaps find significant. That is why academic
literature on the history of law and sociology of law, as well as other
multi-disciplinary legal literature, is important because by means of it the
comparatist can expand the horizon of their understanding and come up
with new ideas and insights. In the explanatory phase this takes on a
crucial role when description ends and the scholar attempts to proceed to
understand and explain.

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Although different comparatists emphasise different explanations, they
frequently pay attention, however, to groups of matters of a similar type
to explanatory factors. It is specifically a question of a number of
explanatory factors because there is hardly a single case where the
special features of a legal system can be explained (with any reliability)
by means of a single factor. This kind of pluralism was recognised by the
thinkers of the Enlightenment. For example, the philosopher Voltaire
(actually François-Marie Arouet 1694–1778) wrote that, ‘Three things
ceaselessly influence the human mind: the climate, the government, and
the religion’.11 Indeed, it is possible to distinguish a number of different
overlapping factors, which form the core of the explanations in
comparative law. These explanatory factors are not presented here for the
reason that they would form a kind of a compulsory list, which every
comparatist would be obliged to check in comparison. It is a question of
a cluster of clues and hints that may be helpful. It indicates from where it
is generally possible to look for explanatory factors and what the
emphatic types of explanation (standing out in a striking manner) that
comparatists use are generally like.

Explanatory Factors in Comparative Law

1. Cultural factors—religion, culture, ideology and mentality
2. Economic factors—economic system and economic resources
3. Historical factors—political history and sources of legal influence
4. Geographical factors—land, neighbouring countries and climate
5. Other factors—unexpected factors and surprises

III. CULTURE AND EXPLANATION

As appeared at the beginning of the book, it is difficult to define culture.
Legal culture is a part of the larger culture of a country/system, and yet it
is difficult to define in an exact manner. This causes troubles for the
comparatist. In fact all serious comparative law study is simultaneously
the study of foreign legal culture. In the same way most explanatory
factors with which the comparatist attempts to explain the differences
and similarities found are somehow of a legal cultural nature. In such
cases culture refers to something quite general. We can for example
make generalisations and speak about Western culture, which is an
umbrella term for the form of culture that has its origin in Western

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Europe but that later on spread to other continents; to North America and
Australia in particular and also to a great extent to South America.
A central factor by which cultural regions are defined is religion. This
is the case although religion was not in general given much of a role in
traditional comparative law which in the twentieth century was
dominated by European civil jurists—although it lurked in the
background implicitly.
When the mainstream comparative law of the twentieth century is looked at, it
becomes clear that the study of the relation between religion and law was not very
highly esteemed. Even in extensive works the practice was usually to simply dismiss
the significance of religion by referring to it in only a very small number of pages.
This was not necessarily caused by the fact that comparatists would have been blind
to the obvious connection between religion and law; more likely the reason was that
the emphasis of comparative legal studies was elsewhere.
In practice, a great amount of academic endeavour was aimed at studies where the
emphasis was on the similarities and differences between common law and civil law.
This meant, nonetheless, that comparatists made an unconscious background
assumption according to which it was not particularly important to pay attention to
religion: the religious context of both common law and civil law was roughly the
same Christian European culture. In this kind of intellectual climate it was not
considered necessary to devote time to the study of Hindu law, Islamic law or Jewish
law because they all formed an exception to the common Christian American-
European main rule. However, now it seems that religion has made a kind of
comeback in comparative law, and there is a growing number of comparatists who
are prepared to take into consideration also the impact of norms and doctrines with a
religious background. This does not mean that the significance of religion has grown
as such, but it is a question of recognising the significance of religion for legal
cultures. This recognition has inevitable methodological consequences for it expands
the scope of comparative study of law by recognising religions as contexts of law.

Factors related to religion generally have the most obvious impact in the
field of family law (marriage, inheritance etc) and in criminal law in the
determination of punishment. Religious factors can also reflect on other
fields of law in which cases their impact is particularly vehemently seen
in attitudes to human and constitutional rights. For example, in Islamic
countries the view of constitutional rights and their restriction seems to
deviate from Western attitudes. Or the attitude to abortion in Greece and
Ireland is different from that in Norway and Sweden. The way to
perceive human and constitutional rights individualistically and with an
emphasis on personal freedoms (ie stressing the rights of an individual)
is not as such generally accepted in Asia. In connection with Asia it has

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been customary to refer to general legal cultural effects of Confucian
legal mentality.
In Confucian thinking the rules that dominate the life of an individual have been
considered to be norms of a moral or ceremonial (lǐ, ) nature, rather than that rules
of law (fǎ,) especially set by the State should be obeyed. Resorting to legal order
presumes a conflict between the plaintiff and the defendant or between the prosecutor
and the accused while Confucianism aims allegedly at compromises. A formal rule
of law that actors must follow is considered to cause more inconvenience than
benefit to the community. The reason for this is that the rigidity of formal rules is
thought to prevent the correct consideration of ethically relevant circumstances. A
person who refuses conciliation and wants to resort to legal rules is in Confucian
thinking a bad person from the point of view of the community: the results of a
formal legal system and the formal legal process presumed by it are considered
somewhat disgraceful in nature. Now, traditional Chinese social ethics is said to have
avoided the specific definition and maintenance of rights because of its mentality.
Yet, from Chinese legal history we are familiar with the opposing school of legalism
(Chinese fǎjiā, ie ‘legalists’) during the sixth century to the third century BC.
However, Confucianism is rooted deeply in the Chinese legal mentality. As Guoji
Qin says: ‘Nowadays, the rule of law has been written in Chinese Constitution, but
Chinese still think in Confucianism way subconsciously, law still is not a favourable
way to solve disputes’.12

Religious factors can also explain differences between the legal systems
of countries, which are within the same religious cultural sphere. For
example, the attitude to marital divorce can vary in Christian countries
according to whether the countries are Catholic or Protestant (Ireland v
UK), Orthodox or Calvinist (Cyprus v Netherlands). When such
differences are explained, religious factors are of great significance. On
the other hand, religious explanations should be sufficiently specific in
order to benefit comparative law. In some cases a difference has to be
made, for instance, when Shiite Islamic law is compared to Sunni law:
these differences should not be ignored by saying in a general way that it
is a question of Islamic law. There are differences in emphasis between
different schools of Islamic law as well as between the applications in
different States. For example, polygamy, which is widely accepted in
Islamic law, is formally forbidden in countries such as Tunisia and
Turkey.
According to the codification relating to the law concerning persons (Code du Statut
Personnel), which came into force in Tunisia in 1956, polygamy is forbidden (art
18.1: ‘La polygamie est interdite’). A Tunisian statesman, independence activist, the
first President of the country and legislative reformer Habib Bourguiba (1930–2000)
argued for the ban on polygamy using argumentation based on Islam. Turkey had

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already earlier (in conflict with traditional Muslim law) as a part of an extensive
reform programme forbidden polygamy in its civil codification which was copied
from Switzerland in 1926. At present, the criminal codification of Turkey defines
polygamy as a crime (art 230). On the other hand, in Ghana, where the common law
is followed, polygamy is allowed for Muslims to whom Shari’ a is applied in this
respect.

Religion is related to comparative law also in the respect that law (in the
form of rules) in itself has a close connection with religion. This may
come as a surprise to the modern Western comparatist because it seems
quite a paradox. Nevertheless, in the opinion of several comparatists and
anthropologists the law today has a role in the modern world that is
similar to the role that religion played earlier. Professor Harold J
Berman, an American, outlines this as follows: ‘Though not universal
among transcendental religions, faith in law is common to all civil
religions’.13 This is true in particular in the Western cultural sphere
although for example in the Nordic countries the status of law as a kind
of religion does not seem as credible as for example in the United States
or Germany. On the other hand, Islamic and Jewish law—or at least
some parts of law—embrace openly the idea of the religious foundation
of law.
In many cases, law seems to offer means for peaceful coexistence and
methods for solving disputes between nations and cultures. In addition,
in comparison that takes into consideration the different systems in the
world it is impossible not to notice how significant a role religion or
other strong philosophical theories have had and still continue to have in
relation to law. A particularly clear example is offered by Islamic law
(especially if one seeks to explain differences and similarities) where the
law is only a minor part of the more extensive Islamic culture, which
challenges Western views in many ways. On the other hand, Islamic law
is in its scope of application rather narrow, and it covers modern law to a
rather limited extent. The systems of Iran, Pakistan and even Saudi
Arabia are actually a combination of Western models, domestic
customary law and Islamic law: different legal elements are mixed into
legal-cultural pluralism so that the significance of the different elements
varies according to the situation and people. (Islamic law has been
normally applied mainly to Muslims.)

A. Mentality

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Explaining the differences between legal systems can also be more
generally based on cultural differences in which case the explanatory
factors used are the cultural special features of the
countries/communities in question. In comparative law such explanatory
ethnological factors as the character or mentality of the nation have been
used. This type of explanatory factor is mostly encountered when
Western legal systems are compared to, say, Asian or African systems.
This is based on a point of view according to which, for example, in the
Far East the attitude to law has arguably been different from the attitude
in the Western countries, where law is considered to have a central role
in the governance and direction of the society. For example, in Japan the
attitude to law has long been dualistic because there the functionality of
the Western legal system is considered to be based on its affinity for
conflict although maintenance of the social order would, according to the
traditional Japanese view, require mainly conciliation and persuasion.
These legal-cultural special features, however, keep weakening as the
Japanese legal culture becomes more and more Westernised. In any case,
mentalities seem to matter.
At present, Japanese law is classified as Asian mainly on geographical grounds.
Many lawyers today argue that Japanese law is practically a Western system that
mainly follows the Continental European model: there are, however, places where
US law has a strong influence and certain places that can still be described as being
in accordance with the so-called Asian legal culture. According to Fujikura Koichiro
in Japan ‘the law is important mainly in symbolic sense. Its power is to be revered
rather than exercised against persons within one’s network of social relations’.14
Nowadays extensive cultural generalisations continue to be part of the explanatory
arsenal of comparative law, but the emphasis of cultural differences has clearly
decreased compared to the twentieth century. Now, legal culture is referred to when
explaining in a more subtle way sectors or certain special features instead of aiming
at a comprehensive explanation by lumping everything under the phenomenon called
Japanese legal culture. Comparative law has learned to be more open towards subtle
variations and internal legal pluralism.

Through culture it is also possible to understand and explain, for

instance, gender linkage in the legal systems studied, which is visible in,
for example, the history of legal ideas. There is quite a surprising
similarity between Western and non-Western legal systems related to the
latent gender ideology where division into public and private spheres of
life is to be seen. Women (and children) have been considered to belong
to the private sphere while men have been considered to belong to the
public sphere, ie politics and economy.

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Originally also in the West, civil and political rights were created for
men only. The difference between Western and non-Western law today
is, however, found in the fact that in Western countries women have been
guaranteed formal equality between sexes in the sphere of formal law. In
practice differences have remained to an extent, but by means of the
international agreements on human rights it has been possible to improve
the situation.
The position of women and the regulation of their rights and obligations have been
difficult areas for Western comparatists and jurists. Discussion has crystallised
around a few questions, such as whether the obligation to cover one’s hair (ie Islamic
veil, hijab) is oppression or something else. Here legal cultures are talking past each
other: from the Western perspective a veiled Muslim woman seems to be a
subordinated victim of patriarchal power. On the other hand, a Muslim jurist can
perceive that a, say, Nordic woman is unprotected if not a victim of sexual rapacity.
Both approaches are clearly extreme and cling to extremities—comparative law does
not necessarily have anything to offer in a situation where different ideologies seem
to consciously seek conflict. Yet, it is in the intellectual fabric of comparative law to
understand and learn about different legal cultures, and this normally speaks for a
conciliatory attitude and the attempt to tone down the extremities.

Political thinking is an expression of mentality. The political system of a

State has a strong influence on the form and content of its legal system
particularly in constitutional law, criminal law and administrative law.
The political and economic system of a country is, on the other hand,
influenced by the dominant ideology (conscious or unconscious). In
general, the nature of the economic and political system of a country is
designated in accordance with the prevailing ideology. For example, the
nature of the legal system of the People’s Republic of China can be seen
to depend on the prevailing ideology in connection with many
fundamental assumptions about law and the legal system (eg the role of
the State). This is reflected for example in the legal status of a citizen in
relation to the State and in possibilities of citizens to influence the
decisions taken by the public administrative apparatus or in their
opportunities to have effective protection provided by the law against
public administrative apparatus.
On the other hand, law in China has developed at an amazing pace in
the twenty-first century and simultaneously the differences compared to
Western law—at least on the level of statutory law—have decreased in
many sectors of law. Legal-cultural differences can all the same still exist
as can be concluded on the basis of several individual issues.

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For example, the concept of the rule of law, which continues with the expression not
of men, conflicts with traditional Chinese political and legal philosophical ideology
where the emphasis is on the rule by men/people, ie rénzhì. It is literally a question of
combining the word rén ( ), which means a human being, with the word zhì ( ),
which means a rule; therefore, the meaning literally is rule of man and not rule of law
or control of law. It is a kind of (Chinese) utopia of social control where the people
who exercise power are thought to derive the right and entitlement to power through
their own virtuousness, which is greater than the virtue of others (control based on
virtue: yǐ dé zhìguó, ). Virtuousness can vary between the classical Confucian
virtuousness and the presently dominating communistic virtuousness. However, this
ideal of virtuousness is no less mythical or exaggerated than the Western versions of
legal virtuousness, as an example of which the polysemic concept of
constitutionalism can be mentioned. On the other hand, this kind of virtue ideal is an
upside down ideal if it is compared to the rule of law instead of the rule of man.15

It is hardly a surprise that the rule of law does not easily translate into Chinese,
particularly if it refers to a constitutional State or a State where the foundation and
limits for the exercise of power are set by law. Fǎzhì, however, is a potential legal
language translation because it combines the expression f ǎ ( ), which means law,
and the expression zhì, which here means rule or power over someone. Fǎzhì actually
means rule that is carried out by law where the main idea is also in the fact that law
is a medium for a rule, not so much the basis and limitation for a rule, which it is
generally thought to be in Western constitutional law and legal theory. Legal
architectures differ from one another even though there are clearly similar elements
in the building materials.

It is also worth noting that ideological explanations by no means need to

be related to systems of a distant legal culture, such as the Chinese one,
or to systems that have been influenced by Islamic law. For example, the
French and Italian systems, which are legal-culturally close, have a
shared legal inheritance in respect of how they treat the right of
ownership. In both countries the right of ownership is based on the
originally Roman law concept of dominium, which meant more or less
virtually sovereign power based on ownership. In the age of the
Enlightenment the theorists of natural law ignited a process whereby the
idea of total ownership was transformed as a matter that involved
obligations to the idea of ownership as a basic right of an individual. The
individual became a central actor; the right of ownership existed
ultimately for the benefit of an individual. Later on, in the nineteenth and
twentieth centuries, this kind of thinking was called into question and
more communal functions for ownership were sought.
From here Italy and France went in different directions: in France
ownership is a fundamental right that is protected as a fundamental

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freedom, while in Italy ownership is not considered such an important
value for the individual that it should be protected as a fundamental
right. In Italy the approach in principle still is that ownership shall not be
protected as a fundamental right that is constitutionally guaranteed—it is,
nonetheless, guaranteed by civil law in various different ways, but not as
a constitutional fundamental value. However, there is no need to mystify
legal mentality as an explanation for differences. As legal sociologist
Erhard Blankenburg has noted the clear differences between, otherwise
culturally very close, Germany and the Netherlands in litigation activity
is not a question of mentality but rather there are different ‘incentives
their respective legal systems offer’.16

IV. ECONOMIC FACTORS

Normally economy refers to the process by which goods and services are
produced and sold—this process or system has close connections with
law. The basic structures of the legal system and the solutions adopted
reflect the nature of the economic system of the society. This basic
observation is general, and it does not mean commitment to a certain
economic theory or over-emphasis of the significance of the economy
when it comes to law. The study of the relation between law and
economy came up particularly in the 1990s, with American jurist and
economist Richard Posner as one of the leading figures. The tendency
was born already in the 1960s, but it still took a while to rise to the
forefront of research. The approach has gained ground by stressing the
study method that attempts to observe the interactive connections
between law/legal systems and the economy better than before. The
trend is known by the name Law and Economics. The core idea in the
movement is to analyse legal norms by means of economic tools.
In the economic analysis of law the content of legal norms is taken
into consideration as the law in force and the main attention is in the first
place paid to the economic efficiency/inefficiency of the norms. In this
approach the areas of study and use have been laws on competition,
companies and contracts. The legal origins theory, law and economics in
comparative law, can be seen as a direct continuation development for
this theory in the field of micro-comparative legal study. The theory
explains the effectiveness of the economy with the inheritance of law
from either common law or Continental European law.

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In legal economics the interest is focused on the law in force so that the analysis is
carried out with tools developed in the sphere of micro-economics. While legal
economics emphasises the significance of the law in force in the allocation of
resources, the legal origins theory concentrates on the macro-level study. These
approaches are however interested in common questions, the most central of which is
economic efficiency. Legal origins theory has caused heated debate and discussion
within comparative law and also within legal history.

To begin with, the idea of the interaction between law and economy
seems sensible in all ways. A considerable part of the legal system has in
fact been created to serve the needs that the economic activity in the
society presumes. It would appear that an economy that favours free
competition needs for example strong protection of property, which
makes the competition between individuals for economic resources, as a
guarantee for well-being and wealth, meaningful. The binding legal
validity of contracts is an important principle for Western legal ideology.
On one hand, in an economic system where the economy is controlled by
the State the protection of the economy of individual citizens is not in an
equally central position because a planned economy is not based on the
competition between citizens over the economic resources. Albeit, the
validity of contracts is an important basic idea also in a State-run
economic system, as the example of modern China clearly shows.
In the former socialist countries the constitutional protection of
property has been weaker while in Western market economy countries it
has traditionally been quite strong. When such differences are explained,
it becomes obvious that the different natures of the economic systems
adopted have an obvious influence on the differences found in
comparison. However, China in its present state is an interesting example
of a hybrid legal system, which tries to combine private ownership and a
socialist public law system (so called State-capitalism).
From the end of the 1970s, a market economy and a centrally planned economy have
been combined in China. In the eyes of a Western comparatist the tension between
these two elements is inscribed in the Constitution of the People’s Republic of China
according to which China is a socialist State under the people’s democratic
dictatorship led by the working class and based on the alliance of workers and
peasants. On the other hand, in 2004 an amendment to the Constitution was made,
according to which private property is protected. In China one speaks of Chinese
socialism, which combines certain elements of Western law with certain elements of
socialist law: the expression is socialist market economy. It is difficult for a Western
comparatist to understand such a hybrid variation of legal culture although it seems
to be an empirical fact. Difficulties are obvious: property rights and contract
enforcement are weak, courts are not really applying law independently, and there is

194
no Western style separation of powers or constitutional-ism. Notwithstanding, China
is undoubtedly an economic development success—notwithstanding its semi-
authoritarian government, which hardly fits into any Western definition of the rule of
law or democracy. Tantalisingly, China seems to prove that there can be significant
and even legal progress without the Western style rule of law. All this may be
difficult to digest if one is a Western comparatist.

The economic resources of a country might have an influence also on the

differences and similarities of socio-legal solutions adopted in certain
fields of law. If the economic system of an economically undeveloped
country is to a great extent dependent on for example natural resources,
it is natural that limitations set by environmental law (such as emission
reductions, logging limits, protection of species or landscape, and
pollution prohibition etc) are not as strict at the level of legal reality as in
an economically developed post-industrial country.
In countries where there is wealth and economic resources it is
possible to direct resources also to better observation of the environment
as part of the economic activity. Here the question is specifically one of
legal practice because the positive law of two countries can greatly
resemble one another, but despite this there can be vast differences in the
effectiveness of the regulation. In addition we have to pay attention to
the integration of the Member States of the European Union in the field
of commerce. Also the activity of the World Trade Organisation tends to
reduce differences between the regulatory systems of different States
although the effects on the level of legal culture might follow more
slowly.

V. HISTORICAL FACTORS
It has become obvious above just how close the connection is between
comparative law and legal history. On the one hand, law and history are
substantively intermingled, while on the other hand, it is almost
impossible to separate comparative legal history from comparative law.
The essentiality of history does not, however, mean that law would not
be dynamic and that law would not change, too. But the change of law is
rarely, if ever, a frog leap, not even in a revolution. A good example of
the inherent features of law is the division of Continental European law
into private and public law, which is reflected everywhere in the legal
system. Socialist law tried as best as it could to shake off the division,

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but it was only partially successful and socialist law remained as a kind
of an odd variant of civil law and socialist ideas about law.
The division already existed, though vaguely, in Roman law. Later the
division between private and public law has been made on the basis of
the definition of Corpus iuris civilis (the ‘Body of Civil Law’, a name
which this collection only received in the 1500s), which was done on the
orders of East Roman Emperor Justinian (circa 482–565) in the book
Institutiones (1,1,4): ‘publicum ius est, quod ad statum rei Romanae
spectat, privatum quod ad singulorum utilitatem pertinent’. In other
words ‘public law concerns the State of Rome and private law is
connected to private benefits’. Similar basic systematics are lacking from
the sphere of the Anglo-American common law tradition, which has
received considerably less Roman influence than civil law. The same
type of permanent feature is also how the system produces legitimately
new legal norms: is it done by means of the legislative body (statutory
law-making) or by precedents of higher courts (judicial law-making). In
short, these kinds of basic distinctions are due to the historical processes.
So, history is important but because it is so important and so
overarching, it is also a bit difficult to perceive in a structured manner in
the comparative study of law. It is, however, possible to present a certain
number of typical historical factors to which it is possible to refer in the
explanatory phase of comparison. For example, political history has a
great impact on what form the legal system of each country takes. As a
scholarly field political history typically deals with political decision-
making, social power structures, political ideologies and the decision-
making by the State. Factors that are most obviously political historical
are found in the field of public law. For example, the most central
features of constitutional law, such as the question of the form of
government, can in most cases be explained by means of historical
factors. For instance, the dominance of the President in the 1958
Constitution of France is explained by the influence of de Gaulle on its
content. Likewise, the Japanese Constitution of 1947 bears a strong
imprint of the US general MacArthur. And several features of common
law in the United States can be explained by colonialism and the cultural
impact of English law, which is still going on albeit in a transformed and
mutated form.

A. Colonialism

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The explanation for the similarity of several Third World and Western
legal systems is in most cases due to the colonial history of these
countries. In addition to the substantive provisions of law, old colonial
countries have inherited from their old mother countries legal-cultural
ideas of a fundamental nature, like, their doctrine of the sources of law as
well as legal terminology and concepts. Anyone approaching the legal
system of, say, New Zealand or Canada must inevitably observe the
influence of English common law.
Colonialism refers to the imperialistic policy of colonisation where the greatest
possible economic and military benefit from colonies was sought. The term is
derived from the Latin word colonia, which refers to a settlement. Colonialism is
closely related to imperialism in which several nations were brought under the
control of the Western colonising States so that the ruler was able to govern the
property and resources of the area under its power. Decolonisation, ie the dismantling
of the colonial power, was at its strongest in the 1950s and 1960s, which was when
the majority of African States became independent. Colonialism created an
opportunity to exercise power and control over the colonial countries and enabled
trade. In the field of law, colonisation meant transporting the European legal models
to colonies. Decolonisation has not dismantled the legal-historical effect of
colonisation, which continues to be seen today in all the States that were under the
colonial power. On the other hand, scenarios vary and processes are multiple because
the effect of legal colonisation has in many places also been positive—at least when
seen from the point view of Western Countries.

Most of the non-European world was colonised by means of public international law
where it was called the Doctrine of Discovery. According to this doctrine, European
colonial powers regarded themselves as ‘better’ than the people in other places.
While the Europeans hoisted flags and built churches in the areas of the indigenous
peoples, they also made legal claims for the ownership of the new land, which
according to their doctrine had been found (sic!). The doctrine was supported with a
racist and ethnocentric way of thinking, which was supported by Christian belief:
European white Christians were seen as superior to others. Comparative law was not
saved from colonial thinking, and the first part of the twentieth century was
accordingly devoted to the attempt of comparatists to wriggle away from
colonialistic thinking. Today colonialism has moved more into the twilight of
methodologies and epistemologies; it can be glimpsed in such schools of thought and
programmes as law and development.

However, the voluntary receptions of foreign law cannot be explained by

colonialism, which is illustrated by the civil codification of Turkey that
was earlier referred to in the book as well as by the reasons that are
connected with the reception of European law by Japan. In fact
colonialism is connected with these cases too, but in a way that is

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different from the general pattern: it was a question of the anticipatory
rejection of colonisation by means of legal copying and transfer.
The period of codifications in Japan was the 1890s when the fear of Western
colonisation was real. Codifications had to come into force for the State to be able to
build a new industrial Japan and to demand full sovereignty (in the eyes of Western
powers). It was important for Japan to prove that it was an equal actor in relation to
other sovereign States. In the opinion of the Japanese the codifications of Western
Europe were the most refined models for laws, and therefore they were suitable for
reception if and when they otherwise fitted the political agenda of the Meiji Empire.

In the same way in Turkey the aim was to prevent the involvement of Western
countries in the Turkish agenda in the 1920s, which for its part explains the quick
renunciation of the tradition of Islamic law in the Osman (Ottoman) Empire and the
desire to move over quickly to Western legal models. The Turkish (Kemalist)
Republic embraced the Western code of law (also) in order to prevent the
interferences of Western States in legal matters of the country which sought to
question the sovereignty of the successor of the Ottoman Empire.

In hindsight, the question of colonialism is in fact considerably more

versatile than the mere distinction between Western and non-Western
legal traditions reveals. For example, present-day Australia is a product
of British colonialism. Although English precedents no longer have a
formal position after the 1986 Australia Act, it is not uncommon to see
Australian courts referring to English precedents. Colonialistic structures
nevertheless continued to have a significant place in legal thinking; as
late as in 1992 the High Court in its Mabo decision ruled that the native
people had title to land as against the immigrant population in cases that
were related to natural resources and minerals.17 In the Mabo case, the
High Court rejected the Terra Nullius doctrine that had earlier been
followed according to which the white immigrant population had entered
land ‘void’ of laws or governance at all, stating that ‘native title exists
and is recognised by the common law of Australia’.

B. Understanding Institutions and their Adoption

Now, it is crucial to grasp that history is not always ‘only’ history when
it comes to law and legal matters. The execution of the comparative
point of view in the doctrinal study of the law can require also the
historical dimension. Frequently understanding foreign law (why do they
do what they do) presumes profound knowledge of its history, which
means that comparison between the present and past of the system is also

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carried out. Clearly, the more significant a legal concept or institution is,
the harder it is to understand its present role if something is not also
known of its past that remains amongst us in the legal-culturally laden
expressions and concepts of legal language.18
The comparatist of the Continental European legal sphere in particular
should make use of the historical dimension when they try to understand
different kinds of law, such as the common law for example. A good
example of the significance of legal history is the still visible remnants of
the earlier forms of action of the judicial process. They developed as part
of the common law over hundreds of years, ever since the early Middle
Ages.
It was a question of each legal problem being handled in a certain specified form. All
in all the emphasis of the common law was and is in the court proceedings, even to
the extent that content issues (law) were occasionally considered almost trivial. Here
we have a significant difference of principle from the Roman-Germanic civil law
concept of law, which is illustrated by an aspiration to justice (cf Roman iustitia).
The forms defined for centuries what was admissible and what was not admissible to
present by using a certain form of process, what could be referred to and what could
not be referred to. One remnant of the forms of action is that even today in the
common law the judge expressly controls the process by defining (ie judge applies
the rules of evidence in the case at hand) what it is admissible and what is
inadmissible.

The idea behind the forms of action was that the question was not what was the
correct decision in legal problem Z but what the correct form was for dealing with
problem Z. Those forms were rejected ages ago, but their legal-cultural effect is still
detectable (they were finally discontinued in 1873 by the Judicature Act). Forty years
after the rejection of the forms the English authority of modern legal history FW
Maitland (1850—1906) said as follows: ‘The forms of action we have buried, but
they still rule us from their graves’.19 In common law tort (a delict, infringement of
law) is one of the legal offspring of the forms of action that have survived to the
present day: an action brought is an action of tort (civil proceedings providing relief
for persons who have suffered harm because of the wrongful acts of others).

Occasionally in comparative law, legal influences are thought to have

travelled mainly by means of force. This, however, is not the whole
truth. Sources of legal influence are by no means always to be explained
by colonial history or the country’s internal political history. It is also a
question of which legal system has been ideologically valued (admired)
to an extent that it has been seen proper to transplant/transfer its
regulation models, institutions and concepts into one’s own legal system.
It can also be a question of idealisation of law of which the new coming

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of Roman law that spread from Germany in the nineteenth century is an
indication. Idealisation of legal ideologies (eg admiration of the so-called
classical Roman law) has its own role although it is rarely openly
admitted to have been a central motive for adopting foreign law. In the
case of Roman law admiration played, nonetheless, an important role.
But, why was Roman law adopted in the first place? Roman law has
entered Europe several times: in Antiquity (usus antiquus), in the Early
Middle Ages (Karolings), the Bolognian school of law in the Middle
Ages, the Humanists (at the turn of the Middle Ages and the Modern
Age) and later in the modern era (usus modernus pandecratum) and in
the nineteenth century by means of the Pandectistic school of law (eg
Bernhard Windscheid 1817–92). Today there is some talk of the new
coming as part of European legal integration, but so far it is a fascinating
but somewhat questionable thesis. However, transplanting and other
kinds of copying and learning take place and it is not simply about legal
history.
For example, after the turmoil in the Eastern Europe at the beginning of the 1990s,
several countries copied the US and German legal models and adopted from them
often uncritically various regulation models without paying much attention to their
applicability to their own legal culture. The German model of the Constitutional
Court and US presidentialism have been especially frequently copied (applicably).
For quite a while the Ombudsman institution of Swedish origin has also been popular
around the world as part of different partial or total constitutional reforms. As an
example from the sphere of Finnish law we can mention the adoption of principles
concerning discretionary power relating to administrative law from the French and
German legal systems that took place mainly in the 1950s through Finnish scholars.
Later on those administrative principles were first entered in the Act on
Administrative Procedure in 1983 and in the Act of Administration in 2004. The
world of law is full of these kinds of examples. Legal historian Alan Watson puts it
fittingly: ‘Borrowing from another system is the most common form of legal
change’.20 This seems to be the case although it is not often openly admitted that
comparative learning (by the legislator, courts or scholars) has taken place and
foreign models have been utilised. A similar type of phenomenon can be seen in the
use of comparative law by courts: foreign law is used but there is an absence of
citation in published judgments.

Sometimes legislative innovations are introduced not with a voluntary

acceptance but by force. Coercion is a significant factor in particular in
cases after a war when the winning party is able to dictate changes in the
central features of the legal system of the losing party. A good example
is the central role of MacArthur in the process of drafting the
Constitution for Japan in 1947. The aim of the USA was to make a

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constitution of a Western type, which would prevent attempts to assume
an aggressive attitude in foreign policy. Several features in the Japanese
constitutional system can be explained by this influence. In the same way
only historical factors can explain the provisions concerning the right to
warfare of States that have been included in the constitutions of the
States that lost in World War II. For example, the Constitution (actually
the Basic Law of the Federal Republic of Germany, German
Grundgesetz für die Bundesrepublik Deutschland) of Germany contains
an express provision, which forbids activities that are aimed at preparing
aggressive warfare (Grundgesetz § 26 Verbot der Vorbereitung eines
Angriffskrieges). This rule can be fully understood only against its
historical background.
No one really denies the weight of history in comparative law.
However, to take history into account is no small feat. Albeit, historical
explanations are not always very simple because, for example, in Israel
the common law has been referred to in several cases although to start
with its judiciary was almost singularly trained in Continental Europe.
The substantive law of Israel seems to contain plenty of influence from
Continental European systems while the procedural law is to a great
extent in accordance with common law. This is due to the fact that jurists
who had lived through the Nazi persecution saw in the adversarial
common law process protection for civil liberties and human dignity,
which the suppression mechanism of the Nazis had grossly and cruelly
held in derision. The plural layers of the Israeli legal system are
explained by legal history: general commercial law is Continental while
maritime law is of a common law type.
The Israeli law and Jewish law or halakhah are separate systems although they have
many points of contact. Halakhah is literally translatable as ‘the path’. The regulation
covers the spiritual life and certain parts of the corporeal life. The norms consist of
the main source Torah (Pentateuch with five books, and oral Torah consisting of
orally transmitted legal tradition) in addition to the literary corpus of rabbinic legal
texts and the overall system of religious law. Halakhah is about norms that are based
on several written sources and in which there is material from the written law that
consists of the five books of Moses and the compilation called Talmud where the
texts of the Torah are explained. Like Islamic law, halakhah is based on the
exposition of the divine law when the Torah and the Talmud were given to Moses at
Sinai. The norms are likely to have been born over time acquiring different layers
during its history.21

In the same way as Islamic law, the halakhah also takes a stand on religious issues
related, for example, to praying and eating. Following it is in practice based on

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voluntariness, and the halakhah experts do not hold a similar stance to that of the
Muslim qâdi. This legal tradition does not have one centralised or official
interpretation; instead it gives scope for different interpretations. In Israel there are
groups according to which no other law is needed, but there are also plenty of people
who support a secular State. Curiously, Israel does not have a uniform constitution
since the Torah has been considered as sufficient for that purpose. The modern legal
world meets here the ancient legal tradition within the same legal system creating
tensions and internal legal pluralism (hybridity). And, the pluralism is not due only to
the halakhah but also due to the multilayered legal system that reflects its historical
background: Ottoman law, British Mandatory (common law) and Israeli law.

It is important for the comparatist to realise that the same external

influences, such as the European Human Rights Convention, may cause
different results in different receiver systems as the systems operate in
different ways: a human rights obligation that in the Nordic Countries is
carried out with hardly any problems can cause results that are
completely unforeseeable in the legal systems of, say, Belarus or Turkey.
We can talk about a mutation of the source law in a foreign legal culture.
An external influence that is adopted from somewhere else is not copied
at the receiving end in exactly the same form as it had been in the source
system: texts may be similar, but practices differ.
Mutation, in terms of evolution, is an unforeseeable alteration in the
central features of the legal rule or legal institution borrowed. Mutation
is not due to natural selection; instead, it is caused by the legal culture, ie
a legal loan is adapted to the legal context that has changed (adaptation
to the environment). Here we can perhaps talk about evolution of law, ie
the slow alteration in the permanent features of law through legal
systems adapting (or they are made to adapt by refining law) to their
social environments. In short, law and its surroundings are in interaction
with one another.
It is also useful to notice that foreign models are hardly ever completely slavish
imitations. It is typical that the national legislation attempts to combine its own legal
culture and the foreign one to be adopted. Mutation is not always spontaneous. For
example, the civil law book of Korea is to a great extent a copy of German civil
codification and is divided into five books according to the German model: the first
parts are the general part, the law of property and the law of obligations. The
contents of the fourth and the fifth parts are formed so that they correspond to
Korean customs and practices in the fields of family law and the law of inheritance.

Up to 2005 the civil codification gave the head of the family/household master (a
male) priority in the law of inheritance (hojujedo, Korean ), but the system
was found to be against the constitutional law. Therefore, the civil law book had to

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be renewed for it to satisfy the obligation of equality in the way required in the
Constitution. At the basis of this is the classical Confucian style Korean idea
according to which a family should have a head. Some of the Korean features of the
system had been renewed earlier in the 1989 reform, but the hojujedo model was still
preserved at that time.22 This is clearly an indication which speaks of the
Westernisation of Asian law and the weakening role of Confucian ethics in the legal
culture.

C. The Presence of the Past

The significance of history in explaining legal similarities and

differences is hard to overestimate. As Gordley states: ‘Legal rules
acquire their structure over time. Thus even if comparative law scholars
were only interested in the structure of modern rules, they would still
need the help of history’.23 If and when the intention is to carry out
comparative research in a demanding way, from the point of explaining
and understanding the observations ie differences and similarities, the
time dimension is impossible to ignore. The significance of time, and in
particular of time passed, is emphasised not only in common law but also
in Islamic law.
The relation of Islamic law to time and history is peculiar; it exceeds the respect for
the conservatism and permanency that are characteristic of the common law. The
traditional Islamic law Shari’ a is based on certain sources and interpretations. The
most important sources are the Koran and the established traditional knowledge
(Sunna) that are related to the prophet Muhammad. On the basis of text sources an
entity that was interpreted and aimed at systematicalness was created by means of
Muslim legal scholars as early as in the eighth and ninth centuries. There are some
differences between different schools of law, but they are all based on primary
sources and on the system of Islamic law that is recorded in the basic works and
commentaries of the schools.24 Fiqh in its basic parts is based on the Koran and
Sunna but there are, however, differences in emphasis.

Basically Shari’ a does not change because its basic sources do not
change any more. If the system in general changes, it happens by means
of reinterpretations (ijtihad) of the same legal basic sources—the system
is in other words more rigid than the common law because in the
common law occasionally there is a completely conscious withdrawal
from aged precedents. In Islamic law, on the other hand, the view is that
to a great extent the gates for reinterpretation have been closed.
Reformist Muslim legal scholars have been demanding for 100 years that
the gates should again be opened. In connection with the common law in

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England, the House of Lords decided in the 1960s that the gates were
again open for changing earlier precedents (to depart from a previous
decision, ‘When it appears right to do so’).25
It seems to be a question of different degrees of legal conservatism.
From the point of view of a comparatist it is a question of the same
phenomenon but in very different legal-cultural contexts. And, whereas
Islamic law enshrines immutability, the common law is distinctly aware
of the risks involved: ‘too rigid adherence to precedent may lead to
injustice in a particular case and also unduly restrict the proper
development of the law’.26 Curiously, the German Constitution (like that
of some other States such as the Czech Republic, Greece and Turkey)
has an eternity clause (German Ewigkeitsklausel) which ensures that
certain parts of the Constitution cannot be changed or amended.
Law as a cultural phenomenon builds on its past: the pastness is
important for anyone wishing to understand and explain law. The law’s
quality of being in the past is, however, mixed with its presentness, ie
law’s quality of being in the present. Law is in force, but somehow its
past is also part of its presence: layers rest upon other layers. So, the idea
according to which law has the presence of the past makes sense. It
refers to the significance of historical development and the specific legal
mentality of law.

VI. GEOGRAPHY AND CLIMATE

The influence of geography was for quite a while a popular theme in
comparative law. As late as in the nineteenth century and early-twentieth
century comparatists stupefied by colonialism might have considered
that a certain climate and a certain geographic environment resulted in a
certain kind of legal culture. It is hardly surprising that the northern
environment was seen to create a vigorous and rational legal culture and
the southern and eastern ones something quite different. In fact
Montesquieu commented on the influence of geography for comparative
law in his classical work The Spirit of the Laws (De l’esprit des lois,
1748), the third book of which begins with an analysis of the effects of
the climate. According to Montesquieu, the climate was the first reason
for the development of nations.
According to Montesquieu: ‘In different climates there are different needs on the
basis of which the different ways of life have been formed; these differences in the

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way of life have resulted in different laws!’ 27 He stated it as a natural historical fact
although this was just a prelude to his view according to which there were also
important physical (climate, wind, temperature, soil) and moral reasons. He saw that
such factors influence the general spirit of nations and the development of the forms
of government and legislation, which are its expressions.

On the other hand, Montesquieu understood that the climate and other
physical factors of the living environment do not directly determine the
development of a nation. Such factors were only partially involved in the
complicated process where the significance of moral reasons could over
time turn out to be more significant than the physical reasons. Owing to
such factors—which are still today used for explaining differences and
similarities—Montesquieu underlined trade, production apparatus,
finances, different moral habits and customs, religion and political
institutions, among others. In his optimistic vision and belief in progress
the developed nations were not fatally at the mercy of nature in the same
way as the primitive communities.
How about the situation today? There can be hardly any doubt that the
content of the legal system is influenced among other things by
geographical factors, such as the soil, natural conditions, climatic factors
and neighbouring States. In countries where the risk of big natural
catastrophes is considered to be great, the facts that are related to the soil
have an impact on the legal system too. For example, in Japan a central
field of operation for public officials is involvement in actions, such as
advanced planning and readiness training, that aim at decreasing the
effects of earthquakes. In practice, factors related to the soil have in such
cases an effect on the legal power of the authorities in emergencies and
on the fact that citizens are obliged to participate in the civil rescue
rehearsals organised by the authorities or to follow strict rules
concerning building.
Climatic factors have their impact on how the public authority
regulates for the production and use of foodstuffs. In countries where
climatic factors have an adverse effect on the self-sufficient production
of victuals, authorities (or in some cases non-governmental
organisations) must take care of, for example, collecting emergency
stores and their storage. In countries where the degree of self-sufficiency
is high in connection with food production, the existence and nature of
such legislation differs from that of countries where the degree of self-
sufficiency is low and the dependence on the import of foodstuffs is
high. Attempts to ensure self-sufficiency can also explain, for example,
the extent and content of legislation regulating agricultural subsidies. For

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instance, the agricultural subsidy system of the European Union largely
explains the complex nature of the regulation of agriculture in Member
States. In turn, the marked position of agriculture in integration is
connected to the history of the Union.

A. Neighbourhood

English writer and poet GK Chesterton (1874–1936) once said that, ‘The
Bible tells us to love our neighbours, and also to love our enemies;
probably because generally they are the same people’.28 This quote fits
remarkably well the world of law too. Ideologies prevailing in a State
and the political systems adopted in it have an influence on the legal
systems of the neighbouring countries. In this respect the geographical
location of a State in relation to others is one explanatory factor in
comparative law. The talk about the Nordic legal family is a good
example—there would be no family without physical proximity.
Nearby countries that are included (or are thought be included) in the
same cultural sphere are often the sources of legal ideas and socio-legal
solutions. Many legal innovations have spread from one or another legal
system to others. Geography and communications can sometimes have a
significant role in the observation and charting of development trends.
One example is the spreading of majority parliamentarianism, the so-
called Westminster system that is of British origin, to several countries as
a direct consequence of colonialism. On the other hand, the British
system spread far further than the neighbouring areas because of the
seaways. Also Nordic legislative cooperation has resulted in
considerable similarity of the legal systems of the Nordic countries; it
has been a question of cultural unification of legal systems using legal-
political measures, which has been facilitated by geography and carried
out in several fields of law.
The influence of neighbours can be detected, for example, in Belgian
law, where French law has traditionally been an extremely strong
influence. The Belgian Constitution divides the country administratively
and regionally into four sectors, which are Brussels, Flanders (Flemish-
speaking), Wallonia (French-speaking) as well as a small German-
speaking part (French Communauté germanophone, Dutch Duitstalige
Gemeenschap). All these areas have considerable autonomy. Official
languages follow the division so that they are Flemish (Dutch), French
and German.

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For most of the nineteenth century the French and Belgian systems were almost
identical, particularly in private law, because Napoleon’s civil law codification was
imported into Belgium in connection with the French occupation in 1804. In the
same way, Belgian legal study was under the influence of France. In addition, the
contributions of French legal scholars and French court judgments were used in
Belgium as if they had always been part of Belgian law. Up until 1930 all university
education was in French until the University of Ghent decided to use Dutch as its
language of teaching. Other Dutch universities later followed suit, some as late as in
the 1960s. Flemish Dutch-speaking legal study started developing as late as in the
1960s at the time German and Dutch legal doctrine in particular established a footing
in Belgium (especially in Flanders).

Most French-speaking jurists today no longer learn Dutch, and Dutch-speaking

jurists have started to lose their knowledge of French. As an example we can mention
the German concept for a loss of a right (Rechtsverwirkung), which came into
Flemish legal study from Holland by means of the concept rechtsverwerking but was
never rooted in the French doctrinal study of law in Belgium. It was partly a
linguistic problem because the concept was difficult to translate into legal French of
Belgium. In Flanders the cultural effect of French law is diminishing at present, and
in practice considerably more legal doctrine is being written in Dutch and English
than in French, which was the dominant language of legal study up to the 1960s. The
fall of legal scholarship in French in the bilingual and culturally divided Belgium
lead to the rise of legal scholarship in Dutch; also the influence of other countries
other than France has increased.29 In the same way it is possible to detect in Finnish
legal science the sceptical and evasive attitude that has continued for over 200 years
in regard to the law and legal doctrine of the neighbouring Russia. The attitude of
Finland to Swedish (or other Nordic) study of law on the other hand has always been
of a positive nature.

The role of geographical factors as explanatory actors in comparative

law are often also related to history through which it is possible to
answer why legal innovations have transferred from one country to
another. For example, the long-lasting Finnish tradition of transplanting
from Sweden is partly explained by historical factors and partly by
geographical ones (indeed Sweden clearly had much better resources for
drafting legislation before Finland did). Yet, legal-cultural models can be
transplanted also from countries that are geographically far away. In such
cases the legal system of the source country is often idealised—at least to
some extent—in the receiving country. Sometimes the geographical
proximity can have an effect on what is admired. After a period of great
changes in Eastern Europe, several countries took in many aspects of the
German legal system to be their model for private law.
A well-known example is also the above-mentioned Belgium, which
for a long time followed French models in the development of its legal

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system: this was explained by geography and shared language (in
Wallonia; the language of Flanders being Flemish, or Dutch). Geography
and language explain also the influence of the Dutch and German legal
cultures in Belgium, and in particular in Flanders.

VII. OTHER FACTORS

Other factors that can influence the contents of a legal system, or in a
broader sense the legal culture, can include things that it is difficult to
take into account because of their unexpected nature or because the case
is of an unofficial but normatively significant arrangement, which is
difficult to find on the basis of formal legal sources. Legal-cultural
practices (living law) are not often based on written law or written
precedents by courts. For the comparatist, being an outsider, finding such
factors is likely to be difficult (eg customary law, internal traditions,
legal mentality). On the other hand, being an outsider can also be a
methodological benefit because the comparatist looks at the foreign law
from the outside and can grasp something that does not even occur to the
lawyers operating within the system.
Being an epistemic outsider is generally seen as negative when it is a question of
research, but in comparison even this cognitive setting can be turned upside down. In
the autumn of 2012 Chicagoan scholars in the field of psychology published a study
according to which human beings obviously make better decisions in a foreign
language using a foreign language reduces decision-making bias.30 This is due to the
fact that a foreign language is ideal for removing deeply rooted fixed ideas embedded
in one’s own culture—by means of a foreign language latent factors that have an
emotional influence on attitudes can be surpassed. By means of comparative law a
similar effect can be achieved even more efficiently because there is a question of not
only a foreign language of law but also foreign law. Thus, the foreign elements are
double: rules and their legal-cultural context are unfamiliar as is the legal language.
Foreign law and foreign legal culture may provide greater cognitive distance and
emotional distance than one’s own law and legal mother-tongue.

There is not a shadow of doubt that constructing explanations and

understanding foreign law is challenging. The legal system (or
equivalent organised large-scale normativity) is so complicated as to its
nature and interdependency that explaining it even partly is not possible
if reference is made to only a limited number of explanatory factors.
Even if the explanatory factors are almost the same in two countries, it is
more than likely that the legal systems differ from one another.

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Unfortunately, there is an almost limitless number of different haphazard
factors that are difficult to explain by means of the above-discussed
general factors. Giving scientifically exact explanations and exact
predictions is not often possible in comparison; therefore, in comparative
law explaining is interpretive explaining, which is based on the
(hermeneutical) understanding of foreign law.
If the comparatist for example wants to explain the strong position of the president in
the Finnish governmental system, they would have to get acquainted with the factors
and events that had an influence on the birth of the Constitution in 1919. In the same
way, the comparatist must be acquainted with German history from the period
preceding the Second World War if the intention is to give an explanation for why
certain parts of the Constitution of Germany have been defined as permanent (§
79[3] Eine Änderung … in den Artikeln 1 und 20 … ist unzulässig). This eternity
clause rejects changing certain fundamental principles of the German Constitution.
Also political scandals, the collapse of the value of money, historical events (eg
declaration of independence, civil war, entering into the European Union and
dissolution of State etc), environmental disasters or other types of major disaster can
be of significance when the reasons that have affected the adoption of legal decisions
and the differences in legal systems are explained. For example, the structure and
legal mentality of the European Union has from 2008 been influenced more by the
financial crisis than by any other factor.
Also the inflexible formalities of the German civil code Bürgerliches Gesetzesbuch
(BGB) caused major problems in economically difficult times. At that time the
rigidity of the codification was dealt with by dismantling it on the basis on paragraph
242, which provides that, ‘An obligor has a duty to perform according to the
requirements of good faith, taking customary practice into consideration’. Basically,
the rule contains a principle that requires the payment to be in accordance with honest
and fair trade/exchange (Treu und Glauben) and trading practice (Verkehrssitte). This
article provided a window for interpretation where good faith was given a much wider
interpretation than the legislator had originally intended. The explanation is not legal-
theoretical but is due to the fact that the BGB had been drafted in the atmosphere of
the Pandects of the nineteenth century, which favoured small enterprises and
liberalism. Without interpretation the rules of the codification would not have adapted
to the changing demands of different economic times: the aim was to avoid
(economic) excess in legal practice and simultaneously to advance economic activity
—without having to amend the BGB. So, the change of context normally changes
living law.
Among various unexpected factors there can also be various quasi-
legal arrangements that complicate the comparatist’s attempts to make
out the content of a foreign legal system. The point is that not even
within the Western legal cultural sphere do legal problems need to be
solved only by means of legislation. One example to be mentioned is the
labour market negotiations and the collective bargaining involved. The

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collective agreements partly replace actual legislation on labour law and
actually (de facto) surpass the legal (de jure) legislative organs. In cases
where such practices are included in the statutory law (ie arrangements
can be based on written provisions) it is not difficult to detect them, but
in cases where written law contains none or very few references, finding
them is very complicated for the comparatist who examines the system
from an outsider’s perspective.
For example, guanxi ( ) prevails in the Chinese cultural sphere. Guanxi is
difficult to perceive but appears to be legal-culturally a significant factor. It seems
that there is no universal consensus on how to explain or define the concept in either
Chinese or English. Basically, it is a question of a confidential relationship between
parties where reciprocity between parties prevails in relation to service provision.
Furthermore, it is a question of friendship where parties have committed themselves
to an ongoing social chain of exchanging services. The influence of the guanxi
network can in some cases be more effective than the formal legal system. Here is
the thing for the comparatist: it is difficult to tell it apart from actual corruption
although guanxi is not directly identifiable with what in the West is called corruption.
For the Western comparatist it is difficult to make the distinction between corruption
(eg things like favouritism, nepotism and clientelism) and guanxi. In fact, guanxi is
not corruption as such, but rather it refers to a system of relationships that create a
basis for various forms of social interaction and the development of trust and
cooperation.31

VIII. DIFFERENCES BETWEEN EXPLANATORY

FACTORS
Not all the explanatory factors that were discussed above have a similar
influence on the objects studied. They can occur either on their own or in
different combinations. The comparatist cannot just make a general
reference (eg ‘this is because of history’, ‘culture causes these things’,
‘mentality is the cause’ etc) to different explanatory factors, but more
structured explanations ought to be attempted in comparison. If the aim
is to construct (for similarities and differences) explanations that are
credible for the scholarly community of legal studies, it is useful to try to
limit the factors that influence the study object so that the role of each
explanatory factor can be evaluated separately. It might be useful to
separate:

— primary explanatory factors (what is the primary explanation),

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— secondary explanatory factors (what else is there in addition to the
primary explanation); and
— potential explanatory factors (what explanations seem credible
although there is no actual ‘proof’).

It might also be sensible for the comparatist to reject the aim to find
perfect and all-inclusive scientific explanations. It is probably more
rewarding to concentrate on the explanation of such differences and
similarities between legal systems/cultures that appear to be the most
central and interesting. One should follow the clues that appear to be
most promising when getting acquainted with the data and during the
study process and settle for the mere mentioning of the rest. Very seldom
does it make any sense to even try to construct comprehensive scientific
explanations in comparison. Not even a legal-culturally dense
description is sufficient, but concentration and trimming is required. The
process gives scope for creativity and different research emphases. On
the other hand, being a challenge is the spice of comparison for it gives
extra excitement to the whole endeavour.
Explaining each detail would probably take so much time and trouble
that making an attempt is not sensible. Because the comparatist studies
legal systems that are unknown to them, it is not very wise for them to
expect to be able to understand and explain everything. From the point of
the attraction and feasibility of the results of the comparative study, it is
better justified to concentrate on factors that can with good reason be
considered as essential new observations or surprises. Also the attempt to
provide global hypotheses is likely to be too ambitious an aim for
common sense comparative law, which is aware of its inborn weaknesses
as a field of legal research. On the other hand, in the sphere of the legal
origins theory, explanations that are interesting and novel—even if
problematic—have been presented for the economic effects caused by
legal cultures.
In addition we must note the simple fact that in practice things in legal
cultures usually tend to get intermingled. Not even within a single legal
culture is it always obvious what kind of legal norms are really resorted
to. Professor of Law and Governance in Developing Countries Jan
Michiel Otto offers a fitting description: ‘Anthropological research
shows that people in local communities often do not distinguish clearly
whether and to what extent their norms and practices are based on local
tradition, tribal custom, or religion’.32 In Turkey, for example, the
traditions of Islamic marital law are widely followed and overlap with

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legislation that follows the Western model. In Turkey, this hybrid
overlapping is, however, unofficial while, for example, in Ghana it is
institutionalised by the official system.
In Turkey, a customary habit is to give dowry, a so-called mahr that is a payment to
the bride as presumed by Islamic law. The civil codification of Turkey does not
forbid mahr, but from the point of view of formal law the arrangement is based on
voluntariness. The legal system of Turkey does not presume or demand such a gift.
So, it seems that the traditional and religious feelings of people do not necessarily
coincide with the formal legal system. Practices can be considered as normatively
significant although they would not be based on officially recognised law. In Ghana,
the customary laws of marriage can be based on the tribal laws or Shari’ a, and both
the forms of marriage can be polygamous. The marital gift is part of such marriages
while common law marriages do not recognise a corresponding marital gift, and the
common law marriage is monogamous.33

The difference between Islamic and positive law is curious. According to, for
instance, Article 26 of the Moroccan family law codification, ‘Le fondement lé gal
du Sadaq consiste en sa valeur morale et symbolique et non en sa valeur matérielle’
(‘The real value of the marital gift [Sadaq] is based on its moral and symbolic value,
not on the material value’). Yet, the bride price is a condition for the legal validity of
a marriage contract. The Moroccan marriage law seems to be somewhat patriarchal
(as is typical for Islamic law). However, after the amendment of 2004 adult
Moroccan women can enter into a marriage autonomously, although they may still
opt for assistance by a male guardian.

For a comparatist it remains a great challenge to understand the subtle

connections and interaction between social norms, Islamic rules and
positive law. And, it is this subtlety which also tells why comparative
study of law must often be genuinely multi-disciplinary: legal history,
sociology of law, legal anthropology, law and development studies, law
and economics, legal linguistics and political and governance studies
belong to the methodological toolbox of the modern legal comparatist.
However, for the comparatist it is crucial to be able to understand and
apply the methods and research results of other disciplines. Being able to
understand and to apply does not transform the comparative lawyer into
a sociologist, but it means that the comparatist may benefit from
sociology.

IX. THE PRESUMPTION OF SIMILARITY?

212
In comparative law such natural law speculations have occasionally been
presented according to which there would be a specific original law
(French protodroit, German Urrecht), which would explain the
similarities between legal systems. Natural law refers to a body of laws
that is considered to be derived directly from nature, right reason or
religion and which ethically binds all human societies. Right reason
refers to Cicero’s idea according to which, ‘True law is right reason in
agreement with nature; it is of universal application, constant and
everlasting’.34 For comparative law it is a question of the same thing as
in early linguistics where the imaginary ‘original language’ of human
beings was sought in a biblical spirit (ie language spoken before the
Tower of Babel). According to linguistic monogenesis hypothesis there
was a single proto-language of humankind. Now, it is true that at the
basis of comparative law there are ideas of some sort of universalism, ie
a belief in such concepts and theories that would be applicable to almost
all people and things at all times.
Actually in modern comparison only a few scholars are committed to
strong natural law universalism. The diversity of legal cultures and the
peaceful coexistence of legal traditions are preferably emphasised.
Pluralism is understood as a basic condition of the world of law in the
twenty-first century. Besides, the existence of some sort of an original
law does not seem credible since there can in fact be practices that differ
from each other in the context of similar legal basic solutions, concepts
or even institutions. Accordingly, it does not pay to invest in the
discovery of the Legal Atlantis or any other mythical original source of
all law. But, of course, there are similarities in peoples’ legal systems (or
organised large-scale normativities), but it is more important to study the
relation of law to its context than to the dream of the original law.
It is not possible to underestimate the contextual elements of legal
systems without falling into ethnocentrism. It is hardly possible to
explain any part of a legal system detached from its social context,
irrespective of whether it is a question of economy, religion, culture or
politics. The universalism of modern comparative law is of a milder form
and emphasises mainly the fact that law ought to be studied without
paying attention to the borders between States or any other formal
distinctions. We can learn from each other while we perhaps learn to
understand why other legal cultures differ from our own. It is a question
of the forms of the normativity existing in different cultures and social
practices, which we in one way or another find legal, ie there is
normativity meaning that something ought to be done according to a

213
constant value position. Be that as it may, this has not always been
sufficient for all comparative legal scholars.
In particular the functional comparative law that was further
developed in the twentieth century by Zweigert and Kötz took as its
driving force the assumption of similarity.35 Their assumption has
received due criticism, and in the theory of modern comparative law
there is no longer any strong fundamental assumption of similarity. On
the other hand, the assumption of similarity (Latin praesumptio
similitudinis) cannot, however, be completely rejected because legal
solutions in social problems are often surprisingly similar at the level of
the standard models—at least if the systems compared belong to the
same cultural sphere. When cultures change, there is also alteration and
mutation in the legal approaches and socio-legal solutions.
The differences detected might in many cases be due to the
circumstances rather than different basic ideas. Therefore, so-called
common sense also seems to support—to a certain extent—the idea of
the similarity of the contents of legal rules and principles. Perhaps the
fundamental functions of the established social rules that guide human
behaviour are not in the end so very different even if the technical
solutions differ from one another. On the other hand, expectations have
grown modest compared to what they were over 100 years ago in the
days of the Conference in Paris and before the devastating world wars.
The belief in the common law for the civilised world (French droit
commun l’humanité) is no longer as strong as it was then. Pioneer
Raymond Saleilles’ dream of ‘une sorte de droit commun de l’humanité
civilisée’ does not really exist any longer.36 Comparatists have become
more aware of differences too when the theoretical straitjacket of private
international law has been slackened and detached and the convinced
enthusiasm about harmonisation has subsided. Today, there is no longer
an obsession towards similarity between legal systems—on the contrary,
ideas of legal diversity have been on the rise at least in comparative law
academia.
Here we are also close to the ethical questions of comparative law.
Among the basic ideas of comparison, there is a belief that ultimately the
people who create and use legal rules are pretty similar creatures.
Independent of their field, comparatists often share the basic
philosophical idea according to which people in spite of their cultural
differences have similar patterns of behaviour, which result in
regularities of the systems under study. On the other hand, today we have
become more conscious than before of the fact that there are also

214
differences between legal systems that have a close connection. We
cannot stretch the assumption about similarity very far. For instance, in
Nordic law we can, for example, easily tell apart the Eastern Nordic law
of Finland and Sweden from the Western Nordic law of Denmark,
Norway and Iceland; the law of Scotland differs from the law of England
and Wales; there are differences between the system of Hong Kong and
Mainland China; the law of Louisiana differs to some extent from the
rest of the United States, etc.
Generalisations that are too rough do not serve well modern
comparative law that aims at a balanced research frame: the scholar
should not decide in advance whether they will emphasise differences or
similarities. The assumption of similarity should not be stretched too far
and often it should not be used at all. It is also worth noting that legal
terms and concepts that are seemingly identical (so-called homonyms)
might result in considerable misconceptions in comparative law even
within the same legal-cultural sphere. Even the exact same legal rule or
institution can function in a considerably different way when placed in a
different environment.

A. Diffusion and Similarity

In connection with the adoption of foreign law, changes in the rules of

etiquette (German Etikettenschwindel, ie the customary code of
behaviour in the domestic legal profession) caused by the alteration of
the internal procedures and decisions within the new legal system are
involved. Legal irritant is one of the terms that today is preferred to legal
transplant among other concepts such as legal transfer, legal
transposition and legal translation. Although external influence has an
effect on national and international law, each system leaves its own mark
on the originally foreign influences and doctrines independent of
whether they are inherited, forcefully introduced, borrowed or copied
(directly or with modification). The context is of utmost significance. As
pointed out by Professor Brian Z Tamanaha: ‘Law cannot deliver in and
of itself because it swims in the social sea with everything else’.37
The assumption of similarity can sometimes be connected to a
problematic idea according to which all legal innovations would have
only one genuine common source, and the occurrence of an innovation in
different places could be explained by diffusion, ie the intermingling of
various constituents. Watson in particular has supported the view,
according to which almost all that has ever been discovered in private

215
law in one way or another originates in Roman law. This assumption is,
however, not essential because it is also possible to think that similar
situations can result in solutions of the same type, the application of
which is attempted by means of similar socio-legal solutions. Yet, the
general significance of Roman law can hardly be dismissed and in this
sense Watson has a very strong argument.
As an example of the versatility of diffusion, here legal diffusion, we
can take the fact that although the fundamental features of the legal
system of the United States originate in the English common law legal
culture, the Constitutions of these countries differ in form and content.
The same applies to Germany and Japan in particular in connection with
civil law: codifications of civil law are of a similar type, but the systems
differ significantly at the levels of legal reality and attitudes to the legal-
cultural climate. And, the civil codification of Switzerland differs from
the Turkish civil codification also at the level of written law, although to
begin with the Swiss regulation was copied almost word for word. There
is an abundance of examples in legal history. Even though one would not
support (as many do not) the views of Watson his basic argument carries
an undeniable force: ‘Law develops mainly by borrowing’.38
Of the basic interests of comparative law, the integrative interest
seems to be built on the assumption of similarity, but strictly speaking it
is not quite true. The assumption of similarity appears to be supported by
Article 6 of the Treaty on European Union, according to which, ‘The
Union is founded on the principles of liberty, democracy, respect for
human rights and fundamental freedoms, and the rule of law, principles
which are common to Member states.’ In addition, according to the
article:
The Union shall respect fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental Freedoms signed
in Rome on 4 November 1950 and as they result from the constitutional traditions
common to the Member States, as general principles of Community law.

However, it is not a question of looking for any original law but rather
that the national legal approaches in force in one Member State do not
exhaust the body of potential alternatives for a socio-legal solution. The
same applies to the mention in Article 38(1) of the Statute of the
International Court of Justice: the general principles of law recognised
by civilised nations, which does not presume an assumption of similarity
but instead concentrates on the common features that exist (not
stretching the assumption any further).

216
To conclude, the assumption of similarity can perhaps be taken as a
heuristic principle for the preliminary hypothesis of comparison in
particular when the socio-legal solutions compared are written and are
technical in nature. In the same way the assumption of difference can act
as a hypothetical starting point for comparison when systems are
culturally far apart, such as for example Iranian and Dutch matrimonial
law or the Swedish law on consumer protection and the corresponding
American law. Some sort of diffusion is very common in the world of
law, but this does not result in general similarity. The fact that there is
more and more legal transplant and diffusion does not mean that
differences would disappear as long as there are differences in the
contexts of law. In other words, the comparatist should not be surprised
to find both similarities and differences. At the end of the day, what
really counts is to render similarities and differences comprehensible to
one’s readers.

1 CJ Wallace, ‘Law, culture and Euro-Crime: using Spiral to teach French law’ (2014)
48 The Law Teacher 154, 158 (Wallace refers to Roger Cotterell).
2 See R Kessel, Die Kontrolldichte Der Normenkontrolle in Skandinavien Aus
Deutscher Sicht (Frankfurt am Main, Peter Lang, 2011).
3 F von Benda-Beckmann, ‘Who’s Afraid of Legal Pluralism?’ (2002) 47 Journal of
Legal Pluralism 37, 42.
4 G Frankenberg, ‘Critical Comparisons: Re-thinking Comparative Law’ (1985) 26
Harvard International Law Journal 411.
5 R Michaels, ‘The Functional Method of Comparative Law’ in M Reimann and R
Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford, Oxford
University Press, 2006) 339–82.
6 See J Husa, ‘Farewell to Functionalism or Methodological Tolerance?’ (2003) 67
Rabels Zeitschrift für ausländisches und internationales Privatrecht 419; and J Husa,
‘Functional Method in Comparative Law—Much Ado About Nothing?’ (2013) 2
European Property Law Journal 4.
7 ‘Ein Gesetz ist ohne die zugehörige Rechtsprechung nur wie ein Skelett ohne
Muskel. Und die Nerven sind die herrschenden Lehrmeinungen’, E Rabel, ‘Aufgabe
und Nodwendigkeit der Rechtsvergleichung’ (1924) 13 Rheinische Zeitschrift für Zivil-
und Proceßrecht 279, reprinted in HG Leser (ed), Ernst Rabel Gesammelte Aufsätze, III
(Tübingen, JBC Mohr, 1967) 4.
8 See J Tolonen, Der allgemeinen Erklārungshintergrund und der wirtschaftlichen
Ordnung und seine Anwendung auf das Aktiengesellschaftrecht (Helsinki, Suomalainen
tiedeakatemia, 1974).
9 See eg C Ginzburg, ‘Morelli, Freud and Sherlock Holmes: Clues and Scientific
Method’ (1980) 9 History Workshop 5 (‘Reality is opaque; but there are certain points
—clues, signs—which allow us to decipher it’, 27).
10 In specific see C Geertz, The Interpretation of Cultures: Selected Essays (New
York, Basic Books, 1973) ch 1 (‘culture is not a power, something to which social

217
events, behaviors, institutions, or processes can be causally attributed; it is a context,
something within which they can be intelligibly—that is, thickly—described’, 14).
11 ‘Trois choses influent sans cesse sur l’esprit des hommes, le climat, le
gouvernement, la religion’, Voltaire, ‘Essai sur les mœurs et l’esprit des nations’
(originally 1756) in Œuvres completes de Voltaire, vol 19 (Paris, Société littéraire-
typographique, 1784) 352.
12 G Qin, ‘The Thinking Way of Confucianism and the Rule of Law’ (2008) 1
Journal of Politics and Law 68, 74.
13 HJ Berman, ‘Faith and Law in a Multicultural World’ in M Juergensmeyer (ed),
Religion in Global Civil Society (New York, Oxford University Press, 2005) 69–89, 84.
14 F Koichiro, ‘Changing Values and the Legal Culture in Japan’ (1992) 4
Japanstudien 209, 211.
15 For more detailed discussion, see eg R Peerenboom, China’s Long March Toward
Rule of Law (Cambridge, Cambridge University Press, 2002).
16 E Blankenburg, ‘The Infrastructure for Avoiding Civil Litigation: Comparing
Cultures of Legal Behavior in the Netherlands and West Germany’ (1994) 28 Law &
Society Review 789, 807.
17 Mabo and Others v Queensland High Court of Australia [1992] HCA 23 (‘the
rejection of the notion of terra nullius clears away the fictional impediment to the
recognition of indigenous rights and interests in colonial land’, at [46]).
18 A Jyränki, Lakien laki (Helsinki, Lakimiesliiton kustannus, 1989) ch 1.
19 W Maitland, The Forms of Action at Common Law: A Course of Lectures, first
published 1909 (Cambridge, Cambridge University Press, 1936) 1.
20 A Watson, Legal Origins and Legal Change (London, Hambledon Press, 1991) 73.
21 For more detailed analysis from Talmud to modern Israeli law, see NS Hecht et al
(eds), An Introduction to the History and Sources of Jewish Law (Oxford, Clarendon
Press, 1996).
22 See J Park, ‘The Judicialization of Politics in Korea’ (2008) 10 Asian-Pacific Law
& Policy Journal 62.
23 J Gordleys, ‘Comparative Law and Legal History’ in Reimann and Zimmermann,
Oxford Handbook (n 5) 753–73, 772.
24 As such, Islamic law is a very interesting subject for modern comparative law
research; see H Harasani, ‘Islamic Law as a Comparable Model in Comparative Legal
Research’ (2014) 3 Global Journal of Comparative Law 186.
25 The Practice Statement [1966] 3 All ER 77.
26 ibid.
27 ‘Ce sont les différents besoins dans les diffé rents climats, qui ont formé les
différentes manières de vivre; et ces différentes manières de vivre ont formé les
diverses sortes de lois!’, C Montesquieu, L’Esprit des lois (Paris, Gallimard, 1995) pt 3,
bk XIV, ch X.
28 GK Chesterton in Illustrated London News 16 July 1910.
29 For a more extensive discussion, see D Heirbaut and ME Storme, ‘The Belgian
Legal Tradition: From a Long Quest for Legal Independence to a Longing for
Dependence?’ (2006) 14 European Review of Private Law 645.
30 B Keysar, SL Hayakawa and SG An, ‘The Foreign-Language Effect: Thinking in a
Foreign Tongue Reduces Decision Biases’ (2012) 23 Psychological Science 661 (‘The

218
reduced fluency in a foreign language could therefore lead to more analytic decision-
making processes’, 661).
31 See eg B Kwock, MX James and AS Chuen Tsui, ‘Doing Business in China: What
is the Use of Having a Contract? The Rule of Law and Guanxi when Doing Business in
China’ (2013) 4 Journal of Business Studies Quarterly 56.
32 JM Otto, Sharia and National Law (Leiden, Leiden University Press, 2008) 30.
33 See J Bond, ‘Pluralism in Ghana: The Perils and Promise of Plural Law’ (2004) 10
Oregon Review of International Law 391, 402–03.
34 ‘Est quidem vera Lex recta Ratio, naturae congruens, diffusa in omnes, constans,
sempiterna’, Cicero, De Re Publica, bk 3, ch 22.
35 K Zweigert and H Kötz, An Introduction to Comparative Law, 3rd edn (Oxford,
Oxford University Press, 1998) 34.
36 R Saleilles, ‘Conception et objet de la science du droit comparé—Rapport présenté
au Congrès international de droit comparé’ (1900) 29 Bulletin de la société de
législation comparée 383, 397.
37 BZ Tamanaha, ‘The Primacy of Society and the Failures of Law and
Development’ (2011) 44 Cornell International Law Journal 209, 247.
38 A Watson, The Making of the Civil Law (Cambridge MA, Harvard University
Press, 1981) 181.

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8

Comparison—Obstacles and
Difficulties

COMPARATIVE LAW THEORY is sometimes a curious thing to read;

there are so many warnings and endless lists of difficulties one may
encounter. Some of the writing seems to have but one purpose: scaring
junior scholars away from comparing laws. But this theoretical
negativity hides the obvious: to do comparative law is not only
challenging but also very interesting and intellectually highly rewarding.
Notwithstanding, it is often laborious enough to examine a single legal
system, and study results that are unambiguous or directly applicable
often remain a dream in cultural and social science studies that resemble
legal studies. Moreover, the outcome of national doctrinal study of law is
in most cases a diversity of varying interpretations, which follow the
changes in legislation and leading cases.
When the number of legal systems increases and comparison is
included, the number of problems increases many times over.
Comparison in practice means wrestling with these problems and
obstacles. Accordingly, comparative legal research is challenging but
certainly not impossible or meant only for the Hercules-Scholar, ie the
ideal comparatist, immensely wise and with full knowledge of various
legal materials, cultures and languages.

I. COMPARATIVE RESEARCH—BETWEEN THE

FAMILIAR AND THE FOREIGN

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The great number of problems has made some scholars think that in
comparative law foreign legal systems should not be studied in order to
truly increase knowledge but instead in order to understand one’s own
legal system better. This is partly true, but only partly. There is no reason
in comparative law to give up even when the study of foreign legal
systems and cultures—just like one’s own—is difficult and problematic.
In the comparative law research process it is in practice impossible to
avoid mistakes and misinterpretations: we make intuitively false
assumptions based on our own limited experience of law. It is, however,
possible to reduce the number of mistakes and misunderstandings the
longer and deeper comparison proceeds. Comparative law does not offer
easy and quick profits for the impatient. On the other hand, it is not
impossible to make decent legal comparisons, either. If and when there is
commensurability there is also comparability and that is the lifeline of
the comparative law endeavour.
Only a comparatist dedicated to full relativism (ie conceptions of law
and legal principles are necessarily and totally relative to the persons and
groups holding them) can end up finding systems so different that
comparing them would simply not be possible. This extreme conclusion
would mean the death of all kinds of comparative studies about
humankind and human societies. However, human experience and our
ability to communicate through language and cultural barriers do not
support the idea of a complete lack of epistemic commensurability and
full relativism. A good example is comparative law in itself because
international literature produced in its sphere is read despite borders
between States and systems, languages and cultures. Moreover, doctrinal
legal scholars read and have always read legal literature in foreign
languages —and have understood these texts at least to some degree.
In comparative law the significance of international publishing is great
because the public that the comparatist is attempting to reach through a
deeper analysis of legal culture needs to be convinced of the conclusions
and arguments based on comparison. It remains for a scholar’s
colleagues to rectify faulty ideas. And it remains for the comparatist to
take the corrective feedback into consideration in later work. Many
comparatists stress publishing in international languages—English,
French and German—because otherwise getting critique and feedback is
difficult in practice. As for Masters’ theses, the aims, resource questions
and capabilities/facilities have an influence on the fact that it is not
sensible to attempt to draw up such works primarily in international
languages —naturally there must not be many mistakes and any gross

221
misunderstanding in these works either, and it is advisable to delimit the
study topics as clearly as possible. And when the knowledge-interest is
related to domestic legislation or the administration of law, it is natural to
use the domestic language in publishing. Yet, seriously performed,
comparative law should be published mainly in English because English
is the main language of international legal study today. On the other
hand, by means of German, French and even Spanish it is possible to
reach a considerably wider readership than in smaller local languages,
such as Icelandic, Finnish, Estonian, Irish (Gaeilge) or the Basque
language (Euskara).
An inalienable part of comparative law is feedback and criticism, the
purpose of which is not to suffocate the enthusiasm to research but to
serve as necessary feedback for the comparative learning process. The
significance of feedback is due to the fact that the comparatist
investigates foreign legal systems from the epistemic viewpoint of an
outsider. On the one hand, the outsider can make observations and
perceptions, which those within the system are not able to make. But of
course, being an outsider sets certain limits epistemologically and
institutionally. Thus, the central incentive of the whole theory of
comparative law and methodology is to offer tools and ideas for crossing
borders in research.
Naturally it is not only a question of language but also of the internationality of the
publication fora used. Language does not have a decisive importance if the study is
published on a forum that is only known in one’s own country: in such a case the
study is out of reach of international review, but owing to its language even domestic
jurists can miss it (if it is not in domestic lingua). On the other hand, it has to be
emphasised that publishing in English does not mean that publishing in national
languages is not necessary: national legal languages are by no means dying out and
we must not abandon them and publish only in English. Nevertheless, in today’s
world a serious comparatist can hardly avoid publishing in English: it is the best
(meaning the most widely understood) linguistic vessel for conveying non-national
study of law.

However, one should not exaggerate because it is not always necessary

to engage in demanding academic comparison. If we were to be content
with just observing foreign legal systems without the comparative
element, there would still be at least three benefits. First, there would be
the more profound understanding of one’s own legal system mentioned
above. Secondly, there would be the activity in solving legal problems
(in courts of law) and, thirdly, comparative information assists legislative
drafting by providing examples and sometimes even legal transplants.

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However, if the comparative dimension is included the aim is to create
new knowledge that crosses the boundaries of national legal systems and
can, in addition to its practical aims (drafting of legislation, legal
decision-making), also be directed to theory formation and the
understanding of law as a cultural phenomenon. Different attempts to
classify legal systems and to master the knowledge of their diversity
form a central part of knowledge acquisition in comparative law. For
example, constructing legal families and debating about them cannot be
characterised only as an activity that aims at a better understanding of
one’s own legal system (more of this later).
In the following, problems that any comparatist may come across in
their work are discussed while simultaneously an attempt is made to
chart some answers to those problems. The main problem bundles in
comparative law are related to study material (or data if you prefer),
handling and analysis of the study material, the concept of law and
comparative law in itself. In practice these problem clusters are
interrelated.

II. RESEARCH DATA RELATED PROBLEMS

It is an indisputable requirement that in comparison that is aimed at the
present (law in force is in focus) the study material used by the
comparatist should be as up-to-date as possible. The freshness of the
material does not have any intrinsic value, but it is a question of the
nature of legal study according to which one has to be familiar with
changes in legislation and one has to know what rules are in force.
However, the fundamental characteristics of a legal system do not
change quickly. For example, from the point of view of theoretical
(macro-) comparative law, the freshness of the source material is not so
essential. The rate at which the cultural deep structures of law change is
considerably slower than the surface changes in black-letter law.
And yet, the theoretical comparatist also has to keep an eye on what
kind of amendments in legislation or what kinds of precedents emerge
concerning their study topic. The up-to-datedness and accuracy of the
material presumes that the comparatist has a chance to get their legal
study material (legislation, preparatory legislative material, court
decisions etc) from sources that are as reliable as possible; browsing the
Internet is certainly not always sufficient.

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Basically, it is recommended to get the primary sources from official
legal materials (statute books, case registries and preparatory material for
legislation) of the countries that are included in the comparison. In most
cases sufficient knowledge of the foreign language in question is
required by either the researcher or those assisting him or her. The
situation is improved by the fact that nowadays provisions from the main
categories of the legal system are to a great extent available as official
translations in best known languages (mostly in English, sometimes in
French or German). It is possible to get material through the various
legal servers available on the Internet, some of which are free of charge
and others not (liability to a charge has unfortunately been gaining more
and more ground). Also different databases can be highly useful.
Databases contain concentrated data that has been collected from legal literature.
They perform the same function as printed bibliographies. Databases come in several
kinds. They can be classified into text, fact and reference bases. Both text databases
and reference databases can be available separately or they can be included in a data
bank that consists of different databases. The same database can be available in
different data banks and in different forms. Some articles can be included as full text
databases whereas some only reference information, like in the open SSRN database
where there are a huge number of abstracts and full texts. For the comparatist, the
most frequently used and most useful are, for example, Westlaw International,
SpringerLink, JSTOR and HeinOnline.

Secondary sources are, for example, printed bibliographies,

encyclopaedias, scholarly monographs and introductory works
(textbooks), commentaries and journal articles and case comments
published in legal periodicals. Secondary sources often help to locate the
primary source (statutory rule, case). As a matter of fact, it would be
virtually irrational to try to directly locate the object of one’s interest
only on the basis of official material. Information contained by primary
sources becomes accessible far more easily if the opinions of the national
legal doctrine are also resorted to. By means of the literature and source
references included in articles and books, it is easier to identify the
relevant primary source material: it is like following the footsteps of
national doctrinal study (or other authoritative internal formation of legal
knowledge) because comparatists are not in a position to deduce for
themselves which primary sources are relevant and which are not.
Furthermore, in terms of time it is efficient to first get acquainted with
secondary sources and, assisted by these, with the primary sources. The
availability of both types of source material is assisted by the
comparatist’s personal contacts with scholars in the countries compared

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(email is an excellent medium for this) or other lawyers, such as judges,
solicitors or civil servants.
We may also find a technically developed Western law in which the most important
legal-cultural sources are not legal cases or statutory law but jurisprudential
(scholarly) texts. One example is Scottish legal culture which has assimilated Roman
law, customary laws of local nature, feudal laws, canon law and English common
law. The Scottish system has significantly absorbed case law and legislation from the
neighbouring countries (England and Wales) and thus created a mixed legal system.
While the English common law was for a long time under some kind of legal-cultural
isolation, ius commune covered Scotland where it was also taught in universities.
Both before and after 1707, when the Treaty of Union created the UK, Scottish
jurists studied in Continental European universities and brought to Scotland law that
differed from the common law. The consequences of this legal-cultural work can still
be seen today in the works of great Scottish jurists: Thomas Craig (1538–1608),
James Dalrymple, Viscount Stair (1619–95) and John Erskine (1695–1768). Their
writings still have an authoritative legal position in Scottish legal culture: their texts
are permitted to be used as complementary sources of law.1

Also multilingual legal dictionaries are useful for the comparatist who
wrestles with the problems of legal translation. In different language
areas legal dictionaries that are compilations of legal terminology have
been published. Some of them are monolingual, and originally were
meant to be used within a particular legal culture—this means that they
are particularly good sources of knowledge for the comparatist, too.
Renowned monolingual dictionaries are, for example, the French
Vocabulaire juridique and the American Black’s Law Dictionary. On the
other hand, several legal dictionaries serve especially the interaction
between language areas. There are also extensive bi- or multilingual
legal dictionaries, in which each language in its turn is the source
language. Within the framework of the European Union there has been
formed an extensive multi-language database IATE (InterActive
Terminology for Europe, including the former Eurodicautom and
Euroterms), which contains plenty of legal vocabulary in the languages
of the Member States.
The task of legal translation in the EU is complex and it requires
constant use of a comparative approach. IATE ([Link]) is useful
for comparatists because it helps in translating many European legal
terms and shows equivalent terms in EU legal languages. For example,
the English term legal act (as an act intended to produce legal effects) is
given equivalents in EU languages like Rechtsakt (German), νομική
πράξη (Greek), acte juridique (French), gerechtelijke handeling (Dutch)

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and oikeustoimi (Finnish) etc. Also, the EuroVoc ([Link]),
which is a multilingual thesaurus, is useful for the comparatist. Yet, as
the example above shows legal terminology is far from easy:
gerechtelijke handeling does not really seem like the proper equivalent
Dutch term (ie rechtshandeling).
The following list shows the general journals on comparative law that
are worth keeping up with. From this list it is possible to grasp the
current state of the comparative law debate and research. There are so
many specialised journals that are available traditionally or via the
Internet that a more comprehensive list here is not worthwhile. The
relevance of the special journals depends on the interests of each
comparatist.

Journals and Reviews on Comparative Law

AJCL or American Journal of Comparative Law (USA). Published

since 1952.
ICLQ or International and Comparative Law Quarterly (UK).
Published since 1952.
JCL or Journal of Comparative Law (UK). Published since 2006.
MJ or Maastricht Journal of Comparative and European Law (The
Netherlands). Published since 1993.
RabelsZ or Rabels Zeitschrift für ausländisches und internationales
Privatrecht (Germany, in three languages: German, English, French).
Published since 1927, and since 1961 under the present name.
RIDC or Revue internationale de droit comparé (France, bilingual:
French, English). Published since 1949.
ZfRV or Zeitschrift für Rechtsvergleichung (Austria).
ZvglRW or Zeitschrift für vergleichende Rechtswissenschaft
(Germany, bilingual: German, English). Published since 1878.

The development of net-based networks now offers more and more

extensive opportunities to study foreign law. Social media is also of a
great help these days (eg Facebook, Twitter). Some blogs are of
particular interest like Juris Diversitas (community for the study of legal
and normative mixtures and movements).2 Courts and Ministries of
Justice have web pages through which plenty of information and original
documents, including as PDF files, are sometimes available. The
problem with online sources can sometimes be their reliability, and the
homepage addresses can change (with no forwarding instructions) or

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maintenance can be lacking. In many cases problems are also caused by
the fact that information is not updated regularly. There can also be
inaccuracies and variation in translations of the official legal languages
(of the system) in a multilingual system. Sometimes translations cause
more difficulties than they solve.
In spite of the problems the Internet is a great help in the acquisition of
comparative and international study material. On the other hand, the
Internet is no miracle worker: while we earlier suffered from a scarcity
of sources, the present-day comparatists in most cases suffer from a
monstrous oversupply of sources. Skills in comparative law are needed
when information from different sources must be evaluated and made
proportionate to other information. Bare documents need information
about contexts if they are to be understood. Screening of sources
presumes advance information, and ‘googling’ alone does not take one
very far—the Internet is filled with aberrations intermingled with correct
information, and the trick is to separate these from one another.
Moreover, this is important when reading national doctrinal texts as
mainstream information is not always to be found on the Internet,
whereas more obscure material seems to find its way into the cyberspace
without a problem.

III. PITFALLS IN RESEARCH-MATERIAL

PROCESSING AND ANALYSIS
The famous quote by Oliver Wendell Holmes expresses the special
relation between law and language nicely: ‘A word is not a crystal,
transparent and unchanged; it is the skin of a living thought and may
vary greatly in color and content according to the circumstances and time
in which it is used’.3 This quote underlines the living nature of legal
language; a nature that causes difficulties for any comparatist.

A. The Problem of Legal Language

The difficulty of understanding foreign and native law is partly due to

the legal language itself. Even within a single legal language there can be
problems with comprehension. This has its reasons, which are connected
to the relation between law and language. Professor Reiner Arntz (1943–
2012) from Germany describes the relation fittingly: ‘Everyone working

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on questions of legal language quickly becomes aware of the fact that
language and law are closely bound up together. Law comes to life
through language’.4 More specifically, law comes to life in the legal
language that is a language for specific purposes (LSP) which differs
from standard language (eg common law English is not the same as
standard English). In fact, legal language is a sublanguage, which means
that it is a particular language used in a body of texts dealing with
law/legal matters. In this sublanguage the creators of the documents
containing rules, principles, decisions etc share a common vocabulary
and common habits of word usage. Thus, it is not only a question of the
unfamiliarity of legal language in comparison but its particular nature
even within one’s own system.
It is a question of the nature of legal language as an LSP. Legal language is often
deceptively easy because it resembles normal language, which is not very technical.
But as Professor Ralf Poscher states: ‘despite the familiarity of the language used, lay
people still get the impression that they do not really understand the legal texts’.5
The situation is twice as hard for the comparatist who studies foreign law:
comparatists can think that owing to their expertise they understand the foreign legal
language better than they actually do (the trap of familiarity). In terms of
methodology this produces a kind of triple hermeneutics: (1) the lawyer ought to
understand social reality (facts; the social dimension); (2) the lawyer ought to
understand law/legal system (norms; normative dimension); and (3) foreign law/legal
system ought to be interpreted through the comparatist’s own (reconstructed) vision
of foreign law (foreign norms: other normative dimension).

It may be argued that (Western) legal language is conceptual and abstract

—the abstract formal concepts are its core. The concepts and how they
are expressed are the result of a long historical process. They can also be
thought to reflect the legal thinking, progress and operating logic of each
legal language. The legal language used in English-language jurisdiction
differs from standard English in a number of ways. Translating and
understanding the language of English law also presumes knowledge of
the common law and its history. The same can be extended to apply to all
developed legal languages. Professor Heikki Mattila has quite correctly
emphasised that ‘legal linguistics requires support from legal doctrine: it
is the latter that shows the meaning of legal terms’.6 So, legal language is
difficult to understand also from within the system because it typically
contains words and linguistic features for which there is no need in
everyday language. Hence, it is no wonder that the branch of linguistics
researching LSPs has also shown an interest in legal language.

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Legal linguistics is a special field where legal language and its development,
characteristics and use are studied. Legal language is studied from the point of view
of linguistics. The field can be described as a synthesis of legal study and applied
linguistics, which has several constituent parts: (1) morphology refers to the part of
linguistics that studies inflections of words, their formation and derivation as well as
how compounds are formed of different words; (2) syntax refers to the constituent
part of linguistics that is related to the structure and constituent parts of a sentence
and studies word order for example; and (3) semantics is the branch of linguistics
that studies the meaning of the expressions of a language. These fields are not as
relevant to the study of comparative law as to legal linguistics, even though
sometimes it is difficult to see any distinction or to tell comparative law apart from
comparative legal linguistics. As Professor Gerard-René de Groot says: ‘Interesting,
relevant differences should not be “lost in translation”: those differences have to be
explained’.7

In legal linguistics the focus is often on the study of legal language that takes place
within one legal language or one legal culture. When the challenge offered by foreign
legal languages is added to this, one of the greatest challenges met by the comparatist
is to clear the obstacles presented by foreign legal languages. Comparative legal
linguistics developed by Mattila is an interesting answer to this challenge of
understanding.

The comparatist has to translate text in a foreign LSP; that is often the
prerequisite for understanding unless there are reliable translations
available. Problems with translation are basically caused by the fact that
legal language differs from the standard language both in its grammar
and its style. It contains plenty of special vocabulary, its sentence
structures are more complicated than those of the standard language and
the terms and concepts usually have an exact legal meaning. Sometimes
the legislator uses legal definitions and orders/dictates directly in the
statute text how a certain term shall be understood in the context meant
in the statute. Significant differences with the everyday language can be
found in spite of the semantic similarity.
All the factors mentioned above emphasise the need to resort to
material in the original language or at least in key issues to examine the
contents of the foreign law (also) directly in the original language. When
the aim is to reach the legal-cultural level in comparative law a basic
ability of some sort to read and perceive foreign legal language is
necessary. Naturally this does not mean knowledge comparable to that of
one’s native language is necessary: one should master the foreign legal
language to the extent that independent use of sources in that language
becomes possible. To be sure, full command is not required.

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So, must the comparatist be a linguistic genius? The answer is: no. It
is not a question of the simple command of a language but of the
challenge offered by the special legal terminology of the foreign
language. Understanding legal language involves problems of its own.
Understanding legal language as an LSP requires more than
understanding the text; knowledge of institutions, systematics, norms,
processes as well as of legal culture and legal history is also required.
Knowledge acquired specifically by means of comparative law is needed
for the legal-cultural context of foreign legal language to become
comprehensible. In practice the comparatist has to translate (and
simultaneously interpret) from one language to another even if it is not
done on paper or with a computer. As noted by legal linguist Marcus
Galdia: ‘Legal speech acts that form the legal discourse in one legal
language are transformed into equivalent legal speech acts of the target
language’.8

B. Multilingualism

Owing to legal-cultural differences we can say that linguistic and

conceptual terminological problems as such are only a small part of the
problem. Barbara Pozzo, Italian comparatist and expert in legal
translation, gets to the point: ‘Legal languages have their own stories:
they reflect the evolution and the architecture of a given legal system’.9
Legal encyclopaedias are extremely useful when crossing these linguistic
barriers is attempted: by means of them it is possible to get assistance for
orientation in the foreign legal architecture. The need especially applies
to legal dictionaries as standard language dictionaries are not sufficient
to fill the need of specialised legal language. The technical terminology
of legal language is only partly included in general dictionaries, and such
translations are not always reliable because often they have not been
checked by an expert in law. Problems are also caused by the fact that
there are certain systems where several official legal languages are used
side by side, such as in Switzerland.
The Swiss Confederation (Latin Confoederatio Helvetica) consists of 26 cantons,
which have considerable autonomy. At the federal level the legislative power is
vested in the Federal Assembly (German Bundesversammlung, French Assemblée
fédérale). The administrative power is vested in the Federal Council (German
Bundesrat, French Conseil federal), which is elected by the Federal Assembly. It is
possible to challenge a law passed by the Federal Council and have a referendum if
required by 50,000 or more citizens entitled to vote or at least eight cantons. The

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multilingual and multicultural structure of the country is also demonstrated in the
number of legal languages because statutes are published in three languages, namely
German, French and Italian. (Romansh spoken in some areas is not an official legal
language.)

On a more profound level, it is a question of the legal-ideological

climate and the different ways of perceiving legal institutions and
concepts that are reflected by legal language. The more significant and
essential the concept, the greater the danger of confusion and
misinterpretation. In other words, the problems with legal translation are
caused by the differences between systems because legal languages are
system specific: the language and concepts used in medicine, chemistry
and economics are not system specific in the same way. Moreover, a
language does not necessarily constitute one legal language only:
German legal language is, apart from Germany, found also in
Switzerland and Austria; there are versions of legal English in, for
example, England, Ireland, Scotland, the United States, Canada,
Australia, South-Africa, India and the European Union. A special case is
formed by States where there are two or more legal languages (eg
Belgium, Canada, Finland and Switzerland). The European Union is a
case of its own kind as there are 24 official languages there.
The citizens of the Union have a right to send documents to the institutions of the
European Union in any of the official languages of the Union. In addition, citizens
have a right to get the answer in the same language. In the same way all directives,
statutes and other EU legislation are published in all official languages. The members
of the European Parliament have a right to express themselves in the official EU
language of their choice. Multilingualism is based on the EU treaties. It reflects the
cultural and linguistic variety of the Union. On the other hand, it is also a huge
challenge. Almost all legislation and the most important political documents and
judgments are translated into all official languages. This system is legally,
comparatively and linguistically quite complex: EU legal concepts are often
transferred from the national systems or from international law. However, these
transplanted concepts now have autonomous EU legal meanings.

The European Union is not, however, completely alone with its

multilingualism because, for example, in South Africa there are 11
official languages. According to Article 6, Item 1 of the Constitution:
‘The official languages of the Republic are Sepedi, Sesotho, Setswana,
siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa
and isiZulu’. All these languages can at least in theory be used in courts
although English in practice is by far the strongest legal language. The

231
position of Afrikaans has not completely disappeared, although English
has overtaken it as the language of law.
Afrikaans is a language that developed from Dutch and is spoken in both South
Africa and Namibia. There are now about six million speakers of the language, of
which about one half are white. Legal Afrikaans (Regsafrikaans, reg as Dutch recht
and German Recht) has been in decline since 1994 but is still the second most
significant legal language after English in South Africa. It is, for example, possible
for a person knowing Dutch to understand Afrikaans in the same way as it is for a
person knowing Swedish to understand other Nordic legal languages: comparative
law in Dutch is rechtsvergelijking and regsvergelyking in Afrikaans; likewise
comparative law in Swedish is komparativ rätt, in Danish komparativ ret and in
Norwegian komparativ rett. Moreover, owing to the Roman-Dutch legal tradition
(Romeins-Hollandse reg) it is possible to indirectly perceive legal Afrikaans on the
basis of the concepts of legal Latin and legal German.

C. The Significance of Context

One of the typical causes for translation problems is found in the

difference between legal systems that are based on Roman-Germanic
codified civil law and the common law tradition. For instance, in the
sphere of both legal cultures Latin legal expressions are used, but those
expressions mean different things. Finding corresponding direct
translations is not always possible. Partly due to this, presentations on
foreign law are usually overflowing with foreign words or at the very
least there are expressions in the original language in brackets after the
translations made by the comparatist; they are not there simply for
decorative reasons are but due to the problems with translating the
concepts. If a fitting translation is missing, it is possible to invent a
neologism that is functional in the language of the publication and to
place the expression in the original language in brackets after it. The
rarity of the languages of indigenous peoples presents its own additional
challenges if the aim is to understand their legal cultures. For example,
the Sámi language (any of its forms) did not originally have legal terms
of its own, but they have since been developed when needs have arisen.
When legal concepts have direct counterparts in the reality
surrounding us, it is usually relatively easy to conceive the meaning of
the terms: individual, family, fixed assets, murder, judge and so on.
When legal terms do not have a counterpart that it is possible to observe
by means of the senses, the situation becomes more complicated. It is,
for example, hard to see an administrative procedure with one’s senses
although constituent activities related to it are easy to observe (by

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handling of documents, hearing, final act etc). For example, fundamental
concepts such as a legal act or legal capacity cannot be directly observed
by means of the senses.
Legal language like law itself is heavily context related by nature,
which means that the technical translation of it by means of a dictionary
does not necessarily produce an optimal result even if special law
dictionaries are used. And, when comparison crosses cultural borders
difficulties become more severe as, for example, when translating
between a Western language and the language of Islamic law, ie Arabic.
As Steve Karakira says:
The difficulty arises when a translator’s exposure to the cultural and legal
environments of his working languages is unbalanced. This could lead a translator to
misunderstand not only the significance of the specialised terms used, but also the
distinctive features of syntax and register of the original language text. The other, and
more significant, difficulty arises from the lack of equivalence at the term level in the
two languages.10

Clearly, comparative law requires some kind of knowledge of the legal-

social and linguistic contexts. Within the sphere of the EU the
recognition of this problem is demonstrated by a special professional
group of jurist-linguists, who are expected to be specialised in both
translation and law. For example, jurist-linguists (or legal translators) in
the Court of the European Union translate into all official languages the
Court’s judgments and the Opinions of the Advocates-General for
publication in the European Court Reports. Jurist-linguists also translate
requests from national courts for preliminary rulings as well as other
documents required for the procedural purposes of the EU Court. In the
European Union the variety of legal languages is a significant factor that
often requires a comparative law approach for its support.
The official and working languages of the EU’s institutions are Bulgarian, Croatian,
Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek,
Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese,
Romanian, Slovak, Slovene and Swedish. Legislation is legally valid in all 24 official
languages. The jurist-linguist acts as a mediator in the legal praxis of the EU Court.
The Court is the highest court in the European Union in matters of EU law. The role
of the EU Court as a judicial organ is also based on the multilingualism applied by it.
The role of the translation service of the EU Court, and the jurist-linguists working
there as mediators of legal praxis, is therefore crucially important for legal
certainty.11

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The fact that legal concepts and terms are tied to the context is again
erecting obstacles for the study of legal systems in their entirety.
Basically, it is a question of the danger that the comparatist
(unintentionally) may assume that the object of their study is found in
legal systematics in the same place as in their own legal system (the trap
of assumed familiarity). Conceptual correspondence should be treated
with benevolent suspicion.
From the point of view of a case-oriented comparatist this means that,
even though they would be interested in one special question only, at
least to some extent they have to acquire knowledge of the entire legal
system. If the study techniques in such a case are variable-oriented, the
extent of the material makes studying whole legal systems difficult. It is,
however, possible in such cases to engage more thoroughly in the
exceptional cases (something that stands out from the data) that have
emerged from the research material. Naturally, gathering variable-
oriented material assumes knowledge of where and how the material is
gathered, and this too presumes to some extent a command of the
entirety of the legal system. And not just any statistics will do; critical
evaluation of sources is required at this point too. Or to put it another
way, quantitative methods do not offer freedom from independent and
creative thinking.

IV. SIDE-STEP TO THEORY: COMPARING LAWS

BUT WHAT LAWS?
When we speak of comparative law, then, what law are we actually
referring to? Are comparatists referring to Latin ius, German Recht,
French droit, Italian diritto, Spanish derecho, Greek δίκαιο, Finnish
oikeus, Afrikaans reg, Islamic Sharia or perhaps Chinese fǎ ( )? There
is, unfortunately, no simple answer terminologically or, far more
importantly, theoretically. Law is a complex normative entity that lives
and changes along with the dynamics of human culture and society. It is
never reduced into a mere statutory or even written law. To find for
comparison an actual legal rule (of living law) that is actually in force
can be quite difficult for an outsider because of the nature of law as a
living law. Living law consists of the rules of conduct that people in fact
obey and which dominate collective human life; sometimes the rules of
living law are the same as positive law, but sometimes they differ from
each other. The comparatist must take into account not only the official

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(State) law but also other kinds of organised large-scale normativities,
which are part of a given legal culture. A normative rule can be
unwritten and yet still can be a living and legally significant factor in a
legal culture. This is one of the central observations in the comparative
law theory of the twentieth century: do not believe everything that is in
writing, ie beyond the positive law and take account also of the
context(s) of law.
The big name in American legal realism Roscoe Pound (1870–1964) presented the
idea in his classic article in 1910: law in books can to a great extent differ from law
in action.12 In interesting court cases, the legal solutions provided by statute books
and the legal reality of applying them do not always meet. What remains hidden from
the formal legal point of view (stressing the positive law) can, however, be
demonstrated in legal culture, which includes the education and professional attitudes
of the jurists and overall the attitudes to law held by people in the community. Law is
in interaction with its surroundings and cannot be separated from its context. In the
same way another proponent of the realist movement Karl Llewellyn (1893–1962)
took as a starting point an idea according to which ‘rules alone, mere forms of words,
are worthless’.13 These realist insights are well absorbed in the intellectual fabric of
comparative law.

The fact mentioned above can also impede the comparatist’s work in at
least two ways. On the one hand, the comparatist can come across a
socio-legal solution model, which is not included in the statutes and is
not based on the decision given by any court. A rule can be based, for
instance, on a doctrinal legal construction or the professional ideology
upheld by the higher courts, which has not necessarily been recorded in
any written document. There are some normatively significant practices
that have not been recorded anywhere in spite of their significance,
which is often the case in connection with customary law. If the
comparatist resorted to official sources only, they would go astray and
might end up claiming that the legal answer to certain socio-legal
questions is not included at all in the legal system under study. On the
other hand, the comparatist can find a provision that includes a rule that
is no more followed or a practice that is downright contrary to what the
regulation presumes (Latin contra legem).
For example, according to Article 3 of the Constitution of Norway, the executive
power is with the King (‘Den udøvende Magt er hos Kongen’), although in the
constitutional practice the Norwegian Government uses the executive power. In
exactly the same way, in Denmark the executive power is with the Government
although the Constitution of the country does not acknowledge the organ. Surprises
can be unexpected: the German Bürgerliches Gesetzesbuch (BGB), which aims at

235
complete and coherent coverage in everything, does not define in any clause (a direct
legal definition simply does not exist) what is meant by such a core concept as the
manifestation or declaration of intent (Willenserklärung). Yet, the BGB certainly uses
this expression. Disputes between supporters of the doctrine of the declaratory effect
of an Act and the theory of will prevented the formulation of the provision. So, the
content of the declaration of intent is defined by means of the other provisions of the
BGB, legal praxis and legal interpretation. This is yet one indication of law’s nature
as a living law, ie even highly formal and technically complicated rules interact with
other parts of legal culture: law does not exist in a void, but it swims in a social sea
as characterised by Tamanaha.

A. Validity of Law

The comparatist who concentrates on the present inevitably needs some

kind of idea of what for them is the law in force, ie valid law (from the
internal point of view) or living law (from the external point of view).
Here they have to follow the national doctrinal study of law,
reconstructing the situation taken in the system studied to the matter
examined by the comparatist. Naturally the comparatist is not expected
to, say, formulate normative recommendations for the interpretation of
foreign law, yet they have to be able to somehow answer the question of
how problem Y is dealt with in legal system X. This is inevitably akin to
keeping up with the national mainstream interpretation of law as a
normative and official creature. We can ask if this setting leaves any
space for a normative approach in comparative legal studies. The answer
is without a doubt affirmative. On the basis of comparison, support
material can be produced for normative comments on one’s own law, or
proposals for systematisation can be presented and inspiration can be
drawn. However, customary law and oral legal traditions are more
problematic to approach, particularly from the point of view of
systematisation, but even they can be used to support normative
interpretative comments (ie how the legal question ought to be answered
on the basis of valid legal materials).
In the legal theory at least two opposed basic views can be
distinguished: they can be called formal and realistic. Owing to its
nature, comparative law mainly follows the realistic view but cannot
completely ignore the formal one either. Because of its study setting,
comparative law often finds itself between legal formalism (internal
view) and legal realism (external view); the emphasis, however, being
more on realism to which is added cosmopolitan legal pluralism.

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According to the view of formal validity developed by Hans Kelsen
(1881–1973), the best-known legal theorist of the previous century, law
is in force in accordance with formal criteria. When a statute had been
given in accordance with proper formal requirements and was
technically sound, it was to be regarded as the law in force (expressly the
domestic law). The validity of the statute in this context means that it
was not in conflict with the rules in the norm hierarchy. In this way the
ultimate basis for the law to be in force could be traced back to the
constitution, the foundation for the legal order. The final basis for law
was the Grundnorm, ie a hypothetical norm presupposed by Kelsen’s
theory, from which in a hierarchy all lower rules in a system, beginning
with the constitution, are understood to derive their ‘bindingness’ (the
normative authority). The view of formal validity does not pay attention
to whether the norm regarded as being technically in force is also de
facto efficient. The validity is not related to the (empirical) legal reality;
instead it is decided by means of factors connected to the form. The
comparatist who is committed to this approach—consciously or
unconsciously—prioritises in their source material official provisions
and the law-drafting material. In such cases the potential alternative
approaches offered to comparative law by the sociology of law (or other
external views) are automatically ignored. Accordingly, legality, not
legitimacy, is in focus.14 On the other hand, this kind of approach might
work in a Germanic legal culture and in countries where the legal culture
resembles it—but even there only to a certain extent.
As an antithesis for the thought pattern that emphasises the form of
law (positive law as an antithesis of natural law), different realistic trends
in legal thinking have occurred. The representative of Scandinavian
realism Alf Ross (1899–1979) from Denmark emphasised as the validity
criterion the actual observance of law and particularly the fact that the
rules of law are considered as psychological-socially binding (‘the norms
are effectively compiled with, because they are felt to be socially
binding’.15 According to Ross, when a legal scholar describes a norm as
a valid law, it is simultaneously a question of the description of the social
reality, ie the content of a normative idea, which is effective and viable.
Validity was for Ross a psychological fact.
In American realism, Pound and Llewellyn emphasised the
significance of legal practice when they wanted to make American legal
study more scientific. Both forms of realism are characterised by a
certain desire to get rid of the straitjacket of formal law (legal positivism)
although there are also big differences between the trends of realism.

237
They shared the desire to restore the ultimate foundation for the
existence of law in human behaviour (renouncing the natural law
theories) or human attitudes in behaviour.
A realistic and moderate way to understand validity is something that
belongs to comparative law study as a natural constituent part. In the
question of the mere practical comparison of the rules of positive law, a
formal approach can sometimes be sufficient when looking for technical
regulation models or stimuli for legislation. This may have curious
ramifications: the comparatist may support formalism in their capacity as
(internal) doctrinalists in their own system but cannot do the same in
their capacity as (semi-external) comparatists. When a closer look at
foreign law is made, it is, however, not possible to systematically only
settle for statute texts and the potential preparatory material or
precedents. On the other hand, comparison does not assume that one
should accept all the ideas of legal realism or renounce practising the
normative study of law (doctrinal study) that is based on the internal
point of view of one’s own system. Normativity of some sort is a natural
part of all legal study, and this applies as well to the comparative study
of law.
Law can be born —as we know from several examples—without the
support of written law or in case of a written law contra legem. In spite
of this, law born through practice is no less normative than the law found
by the comparatist from the law book. If people in some community
regularly give their practices normative significance (Kelsen’s
bindingness), then the comparatist cannot ignore it on the basis that those
practices when applied are not found in the rules of positive law. There is
a deeper legal-theoretical insight involved here: because of the study
setting that crosses borders the comparatist has to swallow a more
extensive and open idea of what law is than colleagues who concentrate
on the domestic system—the comparatist has not been granted the
blessing of a shared (internal) concept of law. Accordingly, comparative
law methodology requires one to combine the main aspects of legal
realism and legal pluralism even though these two movements are not
scholarly connected to one another.

B. Pluralism and Law

A frequent observation in comparative law is that rules and principles

that have been born neither through legislation nor from precedents
operate normally like the other legal rules although the way they are born

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differs from the statutory law or the law based on precedent. Normative
rules can be introduced from the sphere of religion or customary culture,
and they can be effective. For instance, Islamic law works in the area of
family law in countries with a Muslim majority where family law is
regulated by an officially enacted positive legal order. In practice,
different elements are intermingled creating a space that can be called
legal pluralism. In general, legal pluralism is associated with African
systems or overall with systems where the legal orders are technically
less developed than the Western systems. This is far too limited a picture
of legal pluralism, as the example of Canada demonstrates.
The Canadian system reflects both English and French influence. To a great extent
the common law is applied in Canada, but in the Province of Quebec a civil law
system of the French style is used. In addition, the Canadian system has dimensions
of the rights of indigenous peoples and their own legal traditions. There are also two
official legal languages in the country, ie French and English. The entity can be
characterised as a mixture of legal cultures and in this respect as pluralistic of its
legal constituent parts. Moreover, in Canada there are also indigenous legal traditions
(First Nations, Inuit and Métis) which are partially recognised by the formal
Canadian law.

Further, there are good examples of the Canadian legal system and indigenous legal
systems living side-by-side and also partially colliding as is the case with the Islands
of the Haida People (Haida Gwaii, commonly known as the Queen Charlotte
Islands). The Haida Nation has always resisted colonisation, and it still has an
ongoing dispute with the Canadian State over ownership (matters related to uses of
land and sea) and jurisdictional matters. In Kunst’aa Guu—Kunst’aayah
Reconciliation Protocol (2009) the pluralism is uniquely carved in a written form
(Article A): ‘The Parties hold differing views with regard to sovereignty, title,
ownership and jurisdiction over Haida Gwaii’. First, the Haida Nation asserts the
following: ‘Haida Gwaii is Haida lands, including the waters and resources, subject
to the rights, sovereignty, ownership, jurisdiction and collective Title of the Haida
Nation who will manage Haida Gwaii in accordance with its laws, policies, customs
and traditions’. Then comes the position of British Columbia: ‘Haida Gwaii is Crown
land, subject to certain private rights or interests, and subject to the sovereignty of
her Majesty the Queen and the legislative jurisdiction of the Parliament of Canada
and the Legislature of the Province of British Columbia’. However, the Protocol
continues by stating that ‘the Parties seek a more productive relationship and hereby
choose a more respectful approach to co-existence by way of land and natural
resource management on Haida Gwaii through shared decision-making’. So, the
collision does not prevent reconciliatory cooperation and mutual recognition of
competing legal systems.

A moderate realistic view of living law validity does not exclude the use
of written law and other official material as a source, but it does make

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the comparatist suspicious, in a healthy way, so that they no longer settle
only for official texts. This is also the basic idea of functional
comparative law: the written material on foreign law has to be treated
with friendly suspicion and must be opened not only by means of a
doctrinal approach but also through contexts beyond the law. Going
beyond positive law requires looking at the social practices with distinct
normative value in their own contexts. The realistic emphases of legal
theory inevitably come across here: it is difficult to speak of foreign law
in a sensible way if there is no reference to human behaviour (politics,
history, economy, culture, mentality, language etc).
In comparative study, where the epistemic viewpoint on foreign law is
that of an outsider, the normative ought- perspective of the doctrinal
study of law, emphasising rules, is an impossible idea. An outsider can
never really reach an insider’s epistemic viewpoint. The outsider stays
outside, even if they simulate the intrasystemic (epistemologically) point
of view in acquiring source material and in their analysis. Even at its best
the reconstruction of foreign law done by an honest comparatist is not a
genuine internal construction (in contrast to how it would be done by a
national lawyer) but a reconstruction, which necessarily contains both
external elements and an external point of view. As has become clear,
there are various pluralisms in comparative law: methodological, legal,
linguistic and jurisprudential.

V. LEGAL COMPARISON—A PARTICULARLY

RISKY BUSINESS?
Comparative law is sometimes seen as a specifically risky field of study,
and a particular risk of failure is supposedly attached to it. Frankly, one
sometimes meets authors who have made it their business to underline
the immense difficulties and obstacles involved in the comparative study
of law. These authors stress the risk of failure, thus, the picture painted
by them is particularly gloomy. Clearly, this ‘risky business view’ has a
certain background.
The relatively tender age of systematic comparative law is one factor
that causes a certain fragmentarism in the methodological and theoretical
development. Discussion on the topic has started relatively recently, and
consequently the number of convergent opinions has been quite small.
Yet, arguments presented in the discussion are far apart: some emphasise
a strictly scholarly approach (comparative law as science); while for

240
others its usefulness is a sufficient goal (comparative law as a
meaningful practice). However, there are also signs of some agreement,
which is indicated by the emphasis on functionality as the basic theory of
comparative law. Certainly, a field of study of this kind offers plenty of
meaningful challenges and leaves scope for creative thinking: in the
doctrinal study of law genuinely new theoretical and methodological
insights are exceptionally rare while the multitude of systems included in
comparative law opens many doors for surprises and new revelations.
A completely different question is that, due to the nature of
comparative law, it is possibly never likely that a genuinely shared view
is reached concerning its content, problem setting and approaches. The
problems met in connection with comparative legal research are
ultimately the factors that determine the approaches and hypotheses
taken in the study. A kind of study hunch that the comparatist has
probably developed during the process can in some cases be the only
thing that makes the comparison and its results sensible and interesting.
We may talk about the toolbox of comparative law, not of the only right
tool, ie as a research field comparative law is necessarily
methodologically pluralistic.
However, it is important not to dramatically overestimate the
difficulties and offer only a picture of a hopelessly difficult discipline:
pluralism and heuristic methodology are not only exacerbating factors
but also sources of sheer academic enjoyment. Simply, it is enchanting
and intellectually awarding to look for clues, to give a thick description
of foreign law and to have an open mind in the study of different legal
contexts. Legal-cultural immersion is also intellectually rewarding. A
thick description in comparative law involves looking at the rich details
of systems compared, sorting out the complex layers of understanding
foreign law (rules, principles, institutions, doctrines, customs etc) that
structure the world of law in a system. The comparative study of law is a
process of paying close attention to the contextual detail of law in
observing and interpreting legal meanings when conducting research of
foreign law.
The theory and methodology of the field is not systematic or approved
by all, and different schools are fighting with each other. All the same,
heuristically useful ideas and examples can be presented in a reasonably
systematic way, as attempts made above hopefully prove. Comparative
law can also develop into a methodologically more disciplined and
systematic activity only in the choppy seas of concrete study problems
met in practice and the different attempts to solve them. Trial and error is

241
indeed necessary; comparative learning means learning by doing.
Learning by doing comparative law involves acquiring knowledge of
foreign law or legal skills through the direct experience of carrying out a
comparative study (experiental learning).
Part of the fascinating challenge offered by comparative law is that
owing to its nature it is against ethnocentrism, which means that
comparatists have to the best of their ability to detach themselves from
the context that their own legal system has created for their legal
comprehension (the internal point of view of the lawyer). A small
qualification is needed here. Rejecting the bias can, unfortunately, never
completely succeed, but many barriers can be crossed by having contacts
with foreign scholars, visiting countries under study, developing and
maintaining an international colleague network, learning foreign
languages and by acquiring as comprehensive study material as possible.
Paradoxically, sometimes it can even be useful to stray from the straight
path and let surprises and unexpected learning take place. An open mind
is of the essence.
The main obstacles to comparative legal study and its most distinctive
nature are found in the crossing of the gap between different legal
cultures and in the frequent falling into the gap as well as the ongoing
attempt to climb up out of it. Unfortunately, there are clues that do not
lead anywhere. Failures and erring belong to the everyday life of the
comparatist, but through the years the comparatist should lessen both
their frequency and impact, although they cannot be completely avoided.
To conclude, comparative law as a field of study is no more prone to
risks than other members in the family of legal disciplines because all
members have their soft spots.

VI. COMPARISON AS A LEARNING PROCESS

Learning by doing comparative law (cf John Dewey’s ‘experiental
learning’) is an interactive chain of processes where the comparatist
embraces the experiences gained in the study of foreign law in a way that
results in (permanent) changes in their legal knowledge, skills and legal-
cultural attitudes. Comparison in comparative law does not mean
operating with watertight research results and exact methods but instead
it is a continuous learning process. Part of the intellectual appeal of
comparative law is specifically due to this incompleteness. Here we can
quote Watson: ‘Comparative law as an academic discipline is a very

242
personal subject, giving its proponents great liberty to choose their
interests’.16 We can add to the list its delightfulness: getting to know
international colleagues and establishing an educational dialogical
interaction with them is one of the best ways to promote international
legal study and the peaceful coexistence between different legal cultures
and the mentality of inquisitive cosmopolitanism. And it is only realistic
to argue that when there is no competition over the same university
posts, international cooperation remains easy; there are no internal
conflicts with colleagues.
It is also justified to criticise comparative law by the fact that its
potential has remained at quite a low level in law-drafting, application of
law and legal policy. Those who utilise comparative legal knowledge are
partly to blame, but comparatists themselves are also partially
responsible for the state of affairs when they stay in their own small
academic circles and only discuss with other comparatists. Yet, there are
also good examples of comparative law being applied in practice, such as
the operation of the European higher courts and many informal projects
on the harmonisation of law initiated by the European Union. For
instance, in Europe there is the Network of Supreme Judicial Courts of
the European Union.17
In spite of hindrances, comparative law is at present a well-known and
acknowledged constituent part of legal disciplines, which in different
fields of law is used as an auxiliary approach. It has its own legitimate
objects, distinctive methodologies and a distinctive epistemology which
differ from that of other legal studies (mixing internal and external
viewpoints). When international relations increase and become more and
more profound, travelling gets easier and in general the availability of
legal knowledge improves, and hence the cultural divide that hinders
comprehension gets broken down. On the other hand, the strengthening
of Asia and the rise of the Islamic world can bring new barriers to
replace the old ones if the approach is distinctively Western.
In many respects the McDonaldisation of the world is a threat to
cultural variety, but from the point of view of the comparatist, the trend
is not completely unfortunate in all respects. Juridiversity is still to be
seen although the situation is changing. Juridiversity refers to the degree
of variation of different forms of law and organised large-scale
normativities within a given system or even in relation to the entire
globe. Juridiversity means acceptance of the cultural diversity in law and
also protects different forms of law against unnecessary uniformisation.

243
The Western cultural sphere is inevitably increasing its influence on
the citizens and cultures of the Asian and African States in particular, not
only through political and commercial contacts but also by means of the
Internet, television and the international media. Also social media can be
a force for change in society. It is hardly possible that these
developments would not be reflected in the sphere of law. And yet,
embracing the whole of the unbelievable variety of law found in the
world seems to be a very fit ideology for non-ethnocentrist comparative
law endeavour.
Dimensions to which this book refers with expressions such as
globalisation, pluralism, hybridity and transnational law are examples of
events, phenomena and discussions that break new ground in legal study
that is not as restricted by national borders as before. But the
development is not one-way, and the West learns from other cultural
spheres through interactive processes. At the risk of being banal, we can
state that all legal cultures are in the same boat and therefore are forced
to be in interaction with each other—whether they want it or not.
Understanding this does not require the assumption of a common goal or
other pompous achievements; it is a question of tolerating the legal-
pluralistic state of affairs. Importantly, comparative law helps one to
grasp legal contradictions and live with them.
Finally, as reminded by Glenn in his seminal book about law’s
cosmopolitanism, comparative law teaches that dreams of legal unity or
exclusivity of ‘one’s own law’ can be complemented by softer notions of
commensurability, multivalence, compatibility and interdependence.
Glenn actually abandons the nation-State as an empirically impossible
creation and replaces it with the notion of a cosmopolitan State which,
according to him, corresponds to socio-legal reality.18 No matter what
one thinks of Glenn’s contribution it is clear that he offers insights which
fit well with the state-of-art comparative law methodology of today.

1 See DM Walker, The Scottish Legal System: An Introduction to the Study of Scots
Law, 8th edn (Edinburgh, W Green/Sweet & Maxwell, 2001).
2 [Link]
3 OW Holmes writing for the majority in the case of Towne v Eisner [1918] 245
U.S.418.
4 R Arntz, ‘The Roman Heritage in German Legal Language’ in H Mattila (ed), The
Development of Legal Language (Helsinki, Kauppakaari, 2002) 33–54, 33.
5 R Poscher, ‘The Hand of Midas’ in J Hage and D von der Pfordten (eds), Concepts
in Law (Dordrecht, Springer Verlag, 2009) 99–115, 99.
6 H Mattila, Comparative Legal Linguistics (Aldershot, Ashgate, 2006) 15.

244
7 G de Groot, ‘The Influence of Problems of Legal Translation’ in CJW Baaij (ed),
The Role of Legal Translation in Legal Harmonisation (Alphen aan den Rijn, Kluwer,
2012) 139–59, 159.
8 M Galdia, Legal Linguistics (Frankfurt am Main, Peter Lang Verlag, 2009) 224.
9 B Pozzo, ‘English as a Legal Lingua Franca’ in Baaij (ed), The Role of Legal
Translation in Legal Harmonisation (n 7) 183–202, 186.
10 S Karakira, Lexis versus Text: the Case for Translating English Legal Texts into
Arabic (University of Western Sydney, 1997)
[Link]
11 See E Paunio, Legal Certainty in Multilingual EU Law: Language, Discourse and
Reasoning at the European Court of Justice (Farnham, Ashgate, 2013).
12 See R Pound, ‘Law in Books and Law in Action’ (1910) 44 American Law Review
12.
13 K Llewellyn, Bramble Bush: On Our Law and Its Study (New York, Oceana
Publications, 1930) 3.
14 See L Vinx, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (Oxford,
Oxford University Press, 2007).
15 A Ross, On Law and Justice (Berkeley, University of California Press, 1959) 34.
16 A Watson, ‘From Legal Transplants to Legal Formants’ (1995) 43 American
Journal of Comparative Law 469, 469.
17 [Link].
18 See HP Glenn, Cosmopolitan State (Oxford, Oxford University Press, 2013)
(‘state is a modern, post-renaissance structure’, 8).

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9

Macro-comparison

AS BECAME CLEAR at the beginning of the book, one constituent part

of comparative law as an academic practice is macro-comparison. In it,
whole systems (as organised large-scale normativities), legal cultures or
traditions, which can be even more extensive than legal systems (in a
narrow sense), are examined. It is a question of the theory developed
within comparative law and the generalising study that is not practised in
other branches of legal disciplines. In the traditional generalisations of
comparative law different systematisations and classifications of legal
systems are presented as part of the comparative law theory. Their aim is
to master the plurality of the different legal systems in terms of
knowledge, ie the motive is mainly epistemic. The aim is to create an at
least reasonably reliable general panorama of the entity that is as rich and
versatile as the law is in the world. Notwithstanding, the comparative
study has usually concentrated on formal legal systems (ie systems of
positive law).
All States have legal systems, as do many units that are smaller than
States, such as cantons and different autonomous territories. But
indigenous peoples too have their own legal traditions, which are not
systematically or legal technically similar or as comprehensive as the
legal systems of States or communities that correspond to the State (eg
the EU). Indigenous traditions do not coincide with national borders,
which is exemplified for example by the Sámi law. The Sámi law
consists not only of the national norms of Finnish, Swedish, Norwegian
and Russian States and the relevant international norms concerning the
Sámi people, but also of the traditional rules that are followed
(internally) in Sámi communities because these rules are felt to have
significant normativity (they are felt as binding norms).

246
Other non-Western normative entities based on, say, customary law
can, in other words, form entities that are sensible from the point of view
of comparative law as objects of research. In spite of this, comparative
law has for a long time concentrated on the so-called legal families that
are based on the State-centric classification of formal legal systems that
originate from Western law. In these classifications macro-constructions
based on different theoretical backgrounds have been built; these
constructions have over the course of time been given different names
and definitions. Above there has been reference to common law,
Continental European law, ie civil law, mixed law and religious or
traditional law. Their content has already been referred to in this book,
but a concise compilation of the basic blocks of macro-comparison has
been lacking. In the following, these epistemic basic blocks will be
presented in a more detailed manner but still in a compressed form.

I. BASIC BLOCKS OF MACRO-COMPARISON

A. Common Law

The term ‘common law’ is used in comparative law to refer to Anglo-

Saxon or Anglo-American law. In such a case reference is to common
law as a legal family. But, legal historically Anglo-Saxon law refers also
to the law of ancient England before the Norman Conquest. Anglo-
American law can sometimes refer only to the legal systems of English
origin that are in force in North America. In the English law the term
‘common law’ refers to a body of legal precedents to distinguish it from
statutory law.
In the discussion within comparative law, reference is not made to the
internal historical systematics of the common law; instead, the aim is
typically the more extensive sphere of the common law as a legal family.
In other words, it is a question of a legal culture, whose historical roots
originate in England. On the other hand, it is important to note that the
deep cultural roots of the idea of law were originally based on the legal
tradition of North European customary law as it was before the reception
of Roman law. This is still to be seen by the fact that according to the
view the common law courts have of their role, there is no need to
explain or clarify the law, since finding and applying it is sufficient. To
simplify a great deal, common law seeks to solve legal problems.

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Unsurprisingly, there are historical reasons that explain why this is
different from civil law.1
As a family, the common law is quite large and global. Common law
has spread to former colonies via the colonial power. The reception of
the common law has not been possible because its legal-culturally
significant parts are not based on statutory law but on legal practice. It is
a question of law that emphasises the significance of precedent and is
applied in England and, for example, in the United States, Canada and
Australia. These countries form a legal family to the extent that their
legal cultures differ from the Continental civil law. They are connected
by colonial history. In the comparative law usage common law in the
legal technical sense is roughly a synonym for case law, ie legal
precedents. Legal-culturally the stare decisis doctrine has been regarded
as the most typical feature of the common law.
According to the stare decisis doctrine, it is the obligation of courts to
adhere to past decisions made by higher courts in cases where the facts
correspond with sufficient analogy. According to the definition in Black’s
Law Dictionary, a precedent like this refers to a legal rule that is
‘established for the first time by a court for a particular type of case and
thereafter referred to in deciding similar cases’. Basically such a
precedent differs from a Continental precedent to the extent that the
precedent in the common law is legally binding on a lower court.
We can summarise some legal-cultural generalisations of the common
law as follows:

1. The legal system is mostly understood by lawyers (internal view) to be

based on precedents. In codified/positive law the norms of the statutes
are considered to obtain their legally-correct content when a higher
court has established a precedent: the judicial application deciphers
the actual legal content of ‘a paper rule’.2 The precedent formed in
this way acts as a model for decisions in subsequent cases with
sufficiently similar facts. The core of such a precedent, ie ratio
decidendi (the juridical reason for the decision) is binding in making
future decisions (the so-called stare decisis doctrine) even on the very
same court that has established the precedent.
It is important to realise that the ratio is not an abstract norm or
principle but concerns the facts of the case in question. The ratio has
to be kept apart from the casual obiter dicta statement that concerns
minor matters and does not have the effect of a precedent. In order to
be able to decide what is ratio and what is obiter, a lawyer needs to

248
distinguish material facts (having to do with the ratio) from
unimportant facts (having to do with the obiter). Normally, the dicta
are various statements from the court, and they do not have to be
followed in future cases. However, one can separate two types of
dicta: judicial dicta and obiter dicta. The judicial dicta obviously have
a greater authority than what are commonly referred to as dicta.
2. Courts have a significant role in the formation of legal systems, and in
a way a legal system consists legal-culturally of a great number of
precedents given. Higher courts in particular are in a central position
in this respect. It is crucial to understand that not all courts create
precedents (and the ones that are do not separately indicate that a
precedent has been formed, but recognition takes place in later legal
practice). Even though there is a huge amount of positive law in
common law countries (and more coming every year), the role of
precedent is regarded legal-culturally as the key feature of common
law legal systems.
3. Owing to the important role of courts, the role of academic legal study
has remained less significant than it is in Romano-Germanic legal
systems. It would appear that respect for the legal discipline is not
especially high compared to the Romano-Germanic law. It is also
usual to teach law by reference to cases, ie as a network of arguments
and counter-arguments, not as a systematically organised whole that
contains general doctrines and relies heavily on systematic
considerations and general concepts.
4. The systematics of the legal system has not traditionally been based on
the separation of public law and private law. More recently, within the
common law of England, and related to the development of court
practice, a field has formed that can be characterised as public law. In
the United States, public law became a recognised part of legal
systematics considerably earlier because the country is a federation of
States and it has a written constitution. Yet, the differences are
becoming fewer because, for instance, a new United Kingdom
Supreme Court that seems to imitate Continental models, was founded
in 2009. Furthermore, European integration has caused much pressure
towards a unifying direction although there is also clear resistance in
English common law against too much Europeanisation.

B. Continental Law aka Civil Law

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Romano-Germanic law refers to the legal culture that has developed in
Continental Europe and spread to other continents and emphasises more
than the common law the position of learned legal doctrine and codified
law. Continental law has spread not only via colonial power but also
through voluntary reception. As distinct from common law, these
systems do not necessarily have a shared history. Unlike common law,
civil law can be transplanted and copied in the form of legal texts rather
easily (although the transplanted/copied rules or institutions work
differently in different legal-cultural surroundings).
The two-part expression ‘Romano-Germanic’ refers to the fact that
both the Romance countries (in the Middle Ages, Italy and, later on,
France) and the Germanic countries (Germany in particular) had a
significant influence on the development of law. Romano-Germanic law
can be historically located in Continental Europe because of geography.
In English literature, and indeed in this book, the Romano-Germanic law
is referred to by the expression ‘civil law’ (civil law legal family). This
habit of international legal English is based on the fact that in the Middle
Ages the Latin phrase ius civile (of which civil law is a direct translation)
referred to ius commune, on the legal-cultural basis of which Continental
law has been developed. The problem from the point of parlance is that
‘civil law’ in English has two meanings: in legal language it can also
refer to another field of law with the name civil, ie certain areas of
private law. In comparative law, ‘civil law’ refers to legal culture that
has been influenced by the tradition of Roman law and which has spread
to South America and Asia and partly to Africa, too.
Typical features of Continental European legal culture are extensive
private law codifications that generally follow either the German
Bürgerliches Gesetzesbuch (BGB) or French (code civil) models. In a
broad sense also Nordic countries belong to this legal family but,
importantly, they have also their own special features that entitle the
reference to a separate Nordic legal family situated between the great
Western legal families (see later). Now, if the common law seeks to solve
legal problems and civil law seeks to build learned conceptual systems,
then, Nordic law tries to do bit of both at the same time.
We can recognise certain basic legal-cultural features of Romano-
Germanic law.

1. The overriding principle is the coverage of statutory, ie positive law.

The idea is that for all legal problems there should be an existing
positive law regulation the application of which the legal problem can

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be solved. The content of the legal system is to be found in the norms
of positive law—administrators of law apply law instead of actively
creating it by precedents.
2. The significance of the case law created by courts for Romano-
Germanic legal systems is usually regarded as only slight in a
normative sense (ie courts ought not to give too much normative
weight to precedents). When established lines for solutions are born,
an attempt is made to transfer them to positive law by means of
applicable regulations. (Characteristic are massively extensive
codifications in the field of private law, which, however, are lacking in
the Nordic countries.)
3. The role of courts in creating law is willingly seen to be small or it is
seen as an exception to the rule. The quintessential idea is that courts
solve concrete individual cases and that judgments and/or decisions do
not create norms for future application of law. Continental
Constitutional Courts, however, clearly deviate from this basic
practice.
4. Historically, the role of academic legal study (‘legal dogmatics’ or
legal doctrine, ie Rechtsdogmatik), and consequently the role of
universities and learned law, in the development of the legal system
has been significant. This is demonstrated both in the development of
the structures and systematics of legal systems and the effects of study
on the decisions in the interpretation of norms. The role of academic
legal studies at universities continues to be an important part of legal
culture. The German legal culture in particular is proud of its top
specialist lawyers whose task it is to guarantee Rechtsstaat—even
though it was specifically this legal culture that suffered a catastrophic
decline in Hitler’s Germany. The same type of domestic pride is easily
seen, if looked at from the outside, in the French ‘la doctrine’ which
seems to hold perhaps an unreasonable conceit of its own superiority
and academic quality.
5. The systematics of a legal system is built on the separation between
public and private law (following the tradition of Roman law and ius
commune). Because of this, the general administration of law and
application of administrative law are usually organised separately. In
the Nordic countries in fact only Finland and Sweden follow this
model.

Continental European law is perceived roughly, by comparatists at least,

as a negation of the common law. A feature of a fundamental nature is

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that in spite of precedents the written law is in principle the most
important source of law in the Romano-Germanic system. At present
there is as much enacted law in countries in the sphere of the common
law as in the sphere of Romano-Germanic law. In spite of this the
difference is important in principle: the common law lawyer approaches
law through the prism formed by the cases not through statutory texts.
In the Romano-Germanic law, statutory law forms the legal-cultural
frame and the structure for the whole system. According to the
traditional common law, the system is constructed of precedents, which
means that statutory law in a sense corrects and completes the precedent
law. The difference is legal-culturally significant although the
consequences or practical applications are not necessarily so very
dramatic. However, comparatists cannot miss the great weight given to
doctrine: die Lehre (German), la doctrine (French) in civil law, which
seems to regard itself as a special knowledge of law which is as to its
nature logical and driven by the power of deduction. As defined by
critical Professors Philippe Jestaz and Christophe Jamin from France:
‘legal science may be inexact as a science, but, it is a hard science’ 3
(‘une science inexacte, mais dure’).

C. Mixed Legal Systems

Mixed legal systems (or hybrid legal systems) refer to systems that
contain simultaneously key characteristics of other legal families. There
have been different routes to hybridity of the legal system. For example,
together with British imperialism, the common law spread also to areas
where other types of law (indigenous, traditional and religious) had
earlier been used. If the law that had preceded the common law was
legal-culturally strong, little by little systems were formed where there
were features of both local law and the common law. In some cases, like
Louisiana and Quebec, mixed systems are mixes between civil law and
the common law. Such systems are quite commonly called mixed legal
systems. Unlike earlier, mixed legal systems are nowadays seen by some
as an independent legal family, which are by no means dying out but are
equal to common law and Continental law. The best example of this
novel epistemic move can be seen in the book edited by Vernon V
Palmer called Mixed Jurisdictions Worldwide.4 According to Palmer, the
third legal family is ‘conceived for purposes of convenience, utility, and

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explanatory power’ and it can be used ‘only if it provides better insights
than comparative analysis has provided in the past’.5
The oldest of the classical mixed systems is probably that of Scotland
because it was independent for a long time before it formed a Union with
England named Great Britain (1707). Scotland had had connections with
Continental law and, thus, assumed many Roman law/ius commune
influences. Also, in the law of the Province of Quebec in Canada there
are similar features of mixed legal systems where the common law was
mixed with the civil law elements implanted earlier: branches like
property law and civil law are of a French type (civil law), but public law
and criminal law are of a common law type. In Africa, the common law
was mixed with the customary law of the tribes and in Asia with a legal
tradition that could owing to its predominant cultural features be
characterised as Confucian.
In the same way there are systems that belong to the family of
Continental European law, for example in Latin America, Africa and
Asia where Romano-Germanic law has intermingled with the
traditional/indigenous law of these countries. European integration has
brought the common law and Romano-Germanic civil law closer to each
other within the region of the European Union so that some comparatists
these days classify the EU law as a kind of mixed law. Some of the
former socialist countries, too, are in fact in a state of mixed law
although in Europe they mainly belong to the sphere of Continental law.
For example, Czech law is legal-culturally a complicated entity where remnants of
socialist law are still to be found in civil law, labour law and family law. On the other
hand, in the Czech system commercial law is clearly Romano-Germanic. The earlier
picture has been mixed also by later legal loans from Western law due to which the
system is legal-systematically fragmented and contains inconsistencies. Today it is
part of the European Union which has a huge impact on the law and legal culture of
the Czech Republic.6

Examples of hybrids or mixed systems are the Canadian law that has
features of the common law and French Continental law (in the Province
of Quebec) or the numerous African systems in which there is
simultaneously influence of Western law brought by colonialism and
traditional tribal law. Included in the same sphere of mixed law are also
South Africa where the common law and Romano-Germanic law are
combined and Malta, which combines the common law and Italian
Continental law. Similar examples are the Philippines and Puerto Rico,
which combine law of Spanish origin and the common law. In practice

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also all Islamic systems are hybrids mixing Western and Muslim
ingredients (simply because Islamic law covers a relatively small area of
the modern legal system.)
Different ingredients are mixed into different legal-pluralistic entities
depending on schools of thought and local applications. What results is
normally a mix between various legal-cultural ingredients combining
Western and Non-Western, modern and traditional etc.
It may be useful to note that the condition of being ‘mixed law’ or ‘hybrid law’ is not
necessarily immutable, but there are differences between systems: some systems
seem able to retain their constituent mixité whereas as others have a more endangered
status as hybrid systems. These differences are well presented and analysed in A
Study of Mixed Systems.7 This book shows that many mixed systems are in danger of
losing their mixité.

D. Religious-traditional Law

To begin with, religious-traditional law is basically an antithesis of legal

positivism which regards laws as commands of human beings without
there necessarily being any links between law and morality. Religious-
traditional law refers to various forms of traditional law, which are in
many cases based on religious teachings and ideas (eg Christianity,
Judaism, Islam and Hinduism) or some philosophical world-views.
Crucially, religious law is openly linked with ethical and moral codes
taught by religions or long-established philosophical-religious traditions
like Buddhism (which does not contain worship or allegiance to a
supernatural being, ie Buddha is rather like the great teacher). However,
the way in which Buddhist law is incorporated in a legal system of a
country is very similar to that of other forms of religious law.
Tibetan legal culture is probably the best example of living Buddhist legal thinking
and legal tradition. Legal anthropologist and comparatist Professor Rebecca French
distinguishes five major sources behind the Tibetan legal concepts.8 The first sources
are religious materials (eg the Vinaya, which is a canonical text outlining the rules for
the monks to follow as outlined by Buddha). The second type is extant official
documents (including administrative law books, edicts, decision documents, treatises,
public contracts, estate record books etc). The third group consists of various
documents issued by non-governmental institutions (eg monastic constitutions,
private leases and private contracts). The fourth type is law codes and the fifth
contains written and oral statements which describe the legal system.

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Although the religious type of law refers also to Christian law (by
definition) various forms of Christian canon law are normally not
included, curiously, by comparatists in the class of religious legal
systems. The reason for this exclusion is probably that canon law is not
generally thought to bind in the same general manner as does Western
law. This can be seen in the law of the Vatican (The Holy See) which
relies in many areas on Italian law: where canon law is absent, the law of
the City of Rome (Italian law) is applied. Yet, this exclusion of religious
law tells something about the epistemic blindness of Western
comparatists to their own law’s link to Christianity —a link that is
customarily and paradigmatically overlooked by Western comparatists
themselves. This, if nothing else, tells how deeply Western comparatists
are embedded in the State-centred and legal positivistic thinking of
modernism, which banished competing forms of customary and religious
law into the private sphere.
This kind of law is normally regarded as not based on man-made law
but on religion, traditional knowledge or cultural patterns and deeply
embedded social institutions. The macro-comparatist tends to argue that
there is a legal sphere covering several different traditional legal systems
where it is typical that the norms lead to religion and its dogmata or
cosmological ideas about the human kind and their place in the world. It
can also be a question of a cultural tradition as is often the case with
indigenous peoples: they do not necessarily have organised religions, but
on the other hand they have shared cultural views of the relation of
humankind to nature and other human beings, for example. Some of
these views have constituted norms, the direct application of which is
attempted or which have an indirect effect on the formulation of the
material content of statutory law, ie traditional/customary laws and legal
systems may be partially recognised by formal State law.
This group of laws contains legal systems/organised large-scale
normativities in which law and religion or some other philosophical
religious tradition have not been separated. Secularisation permeating
legal systems that has taken place in Western law has not occurred there.
Into this heterogenic legal group we can include different sub-groups: (1)
systems of Islamic law (with its different schools); (2) systems
influenced by Hindu law; and (3) systems with an Asian mentality to law
and society stressing collectivism or systems with the Confucian
tradition (Confucianism influences legal discourse and legal thinking
because legal meaning depends on cultural signs and narratives). In
addition to professional representatives of law, these systems usually

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include social groups (such as Islamic priests, learned rabbis, tribal
elders etc) who can have a significant influence on the norms guiding the
behaviour of individuals. (Clearly, different versions of Christian canon
law—Orthodox, Catholic, or Protestant—could also be included.)
Legitimation of law that is related to religion is different from other
law because the arguments can come directly from religion (eg the
Koran and Islamic teachings or Talmud) or other arguments that are not
within formal law; such as harmony that is of Confucian origin and
social peace that is demonstrated in the desire to avoid conflicts and in
the individual’s responsibility to their family and the family’s
responsibility to the individual. The weight of traditional law can vary
even within the same system (urban v rural, North v South etc) or
between fields of law (private law v. public law). For practical reasons,
the religious systems are often of a mixed legal type in the sense that
they include the influence of Western law and loans that are mixed with
religious and traditional norms.
Earlier it was believed that traditional and religious law would
disappear, giving scope to the secular Western law, but this view has not
proved to be correct. Traditional law has—if anything—overlapped with
the more recent legal material often forming a mixed legal system.
Instead of clear Westernisation we have more hybridity, ie legal
composition such as rules, institutions and doctrines whose elements are
derived from different legal cultures and from secular as well as from
religious or customary spheres.

E. What about the Socialist Legal Family?

The fate of socialist law as a legal culture is not as simple as it may

appear at first glance. In the 1990s, socialist law was declared to be
deceased by many prominent comparatists and legal historians. Of
course, socialist law as a legal family containing legal systems that
uphold ideas of socialist law in their legal orders is minimal in
comparison to the situation prior to the 1990s. However, the idea that
socialist law would be dead and buried (Zweigert and Kötz) is clearly
premature if socialist law is regarded as a legal tradition. Rafał Mańko
points out that the dissolution of the socialist legal family cannot be
identified with the disappearance of the socialist legal culture. Mańko
says that, ‘The Socialist Legal Family may well be dead and buried, but
the same cannot be said of the Socialist Legal Tradition’.9

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Today there are comparatists who actually regard the former socialist
law countries as forming a specific Central European legal family that is
based on the legal-cultural vitality of socialist law and that is much more
legal positivistic and formalist than Western European systems. Alan
Uzelac underlines that socialist legal culture simply refuses to fade away,
so, according to him ‘two decades after the beginning of the “transition”,
some features of the “old” tradition have proven to be surprisingly
resilient and unaffected by change’.10 The main dividing factor between
Western European legal culture and Continental European legal culture
is, according to these analyses, the instrumentalist approach to law,
which is upheld by elites which are accustomed to using legal processes
and law in general as a tool for protecting their own interests.

II. CONSTRUCTING MACRO-CONSTRUCTS

Some comparatists may think that systematisation of legal systems as
such is an important activity that gives similar pleasure to comparatists
as the classification of plants and animals and the creation of taxonomies
offers to a botanist. According to this view, the taxonomic classification
and systematisation of legal systems alone would be a sufficient
scientific motive. Hence, it would be a question of legal botany in an
encyclopaedic spirit. Legal encyclopaedism had high epistemological
ambitions for totality, coherence and order, just like other versions of
encyclopaedism. These kinds of macro-comparatist still pose the
eighteenth century style question: how much is there in the world of law
to know? For these macro-comparative botanists the legal systems and
legal cultures of the world are (paraphrasing Linnæus) ‘like living
libraries of law’. If it was so that, ‘God created, Linnæus organized’
(Deus creavit, Linnæus disposuit), then, the equivalent calling for the
comparatist was to organise the world of law created by the Ancient
Greek goddess of justice Dike (Δίκη) into scientific taxonomy.
There might be some truth in this approach, but a more rational basis
for building macro-constructs might be found elsewhere. Plain and
simple: a global taxonomy of law is likely too tall of an order for anyone.
The most natural approach to the definition of, for example, the concept
of legal family or legal culture is through the fact that macro-constructs
are of their nature Max Weber’s (1864–1920) ideal types (German
Idealische Typus). It is typical of these ideal types that they are analytical
information constructs that contain both empirical and theoretical

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elements. Construct refers here to a noun (not verb) which is an idea or
theory that is formed in the minds of comparatists.
Weber, who is one of the founding fathers of modern sociology, developed an
approach of his own that is called interpretative sociology (verstehende Soziologie).
Here the question is the same as in social-scientific hermeneutics, ie an explanation is
aimed for in an attempt to understand the social-cultural object under study. It is a
case of interpretative explanation. Weber’s method of sociology tried to explain the
reasons for what is being done as well as the different effects and consequences of
the process.

The approach is associated with the concept of an ideal type, which does not refer to
anything that is ideal (idealistic, worth aiming at) but rather to something that is
abstracted from a real phenomenon by means of reduction and is idealised in this
sense; it is reduced by generalisation. The basic starting point is that the aim should
not be to attain an ideal state, nor is there in the real perceptible world necessarily an
accurate empirical counterpart for the ideal type. The ideal type is a conceptual
construction to which reality is compared. The ideal type helps us to understand what
is the hidden rationale of the social-cultural phenomenon that is analysed. In other
words, ideal types are conceptual constructs to which the true (in an empirical sense)
reality is compared. By means of an ideal type (such as feudalism, bureaucracy,
capitalism etc) it is also possible to open up new research issues.11

By means of macro-constructs the comparatist can organise the reality of

any given legal system (or other organised large-scale normativity) under
study into a comprehensible entity (sources of law, use of the sources of
law, interrelationship between rules, systematics, key concepts etc). In
the comparative law theory, an individual legal family or legal culture or
a more extensive entity formed by them is a theoretical construct by
means of which it is easier to perceive existing legal systems. When the
central features (eg use of legal sources, role of customary law, methods
of legal argumentation, relation between religion and law etc) belong to
the same legal family or legal culture, it is possible to explain and
analyse rationally the legal system existing in reality. Macro-constructs
like common law or civil law offer conceptual devices with which we
can measure law and clarify the most important elements of legal reality.
By means of macro-constructs, explanation and analysis take place
even if the content of a legal system is not described by means of
overwhelming detailed information or if the knowledge basis offered by
one’s own legal system is abided by. As an ideal type, ie a type that has
been refined by removing detailed characteristics (a huge amount of
detailed qualitative data), a macro-construct as such is not to be reduced
to any real existing legal system. It is the culmination of the typical

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features of its empirical models. Therefore, for example, a description of
common law does not specifically tell about the Canadian law, and a
description of civil law does not accurately represent the Spanish law.12
René David, who is probably still the best-known macro-comparatist,
understood well that the legal families he had constructed were not
completely identifiable with the global legal reality. David was of the
opinion (Les grands systèmes de droit contemporains, 2002, with
Camille Jauffret-Spinosi) that: ‘The concept of legal family does not
correlate with the biological reality’.13 On the other hand, macro-
constructs had other reasons and grounds for their existence than the fact
that they would be exact results of scholarly study. Macro-constructs
serve the basic idea according to which it is useful for the comparatist
after the preliminary acquaintance with foreign law to become detached
from the details of the legal system studied and to conceive it as if from a
more distant perspective (epistemological distancing, epoche-approach).
In particular, this concerns the preliminary phases of the comparative
process.

A. Mastering Complexity by Means of Generalisations

The point is to get the nuanced object of study under partial preliminary
control by detaching oneself from the immediacy and abundance of legal
(and other) sources by resorting to the pure type specified in the first
instance. Into such a type (eg common law, civil law, Nordic law, Islamic
law, Maori law) most characteristic features of similar legal systems
have been reduced. Only research that has detached itself from the
maintenance of national law is capable of detaching itself in terms of
knowledge. It is very difficult for the doctrinal study of law to detach
itself from the national legal system (internal-normative view) and in
terms of knowledge from the internal view on law. On the other hand, as
appeared above, in the doctrinal study of law and the other fields of legal
study it is possible to make use of comparative study settings and foreign
law in other ways. Yet, it should be kept in mind that the epistemic
frameworks for the national and comparative approach are different.
It would seem to be comparative law wisdom that concrete and
existing legal systems as such are not to be identified with any of the
basic types constructed in the theory of comparative law. When we
characterise, say, the legal systems of Austria and Italy as belonging to
civil law, we do not simultaneously present an empirically exact

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description of these systems; we just describe the shared general legal-
cultural and historical features typical of them. And at this point the
names of macro-constructs are of no importance. Their functions are the
same independent of whether we call these legal-cultural macro-
constructs legal families, legal spheres, legal cultures or legal traditions.
In all of these macro-constructs it is a question of generalisations on the
macro-level and approximations, like fuzzy pictures or shadow images
cast on the wall by the comparatist.
What is said above can be illustrated by taking one concrete system under study.
Focusing makes the picture more complicated. For example, New Zealand is without
exception classified in comparative law literature as a member of the common law
family or legal culture. There are solid grounds for this, because the legal system of
the country is by and large based on the English Common Law, ie the system that
New Zealand inherited as a colony of Great Britain. There is no written constitution
in the country, and the law that was in force in England before 1840 is still formally
part of the law of New Zealand in so far as more recent legislation or legal praxis has
not changed it. Unlike in the UK, the position of the common law has been
strengthened also by formal statutes, which are The English Law enactments from
1854, 1858 and 1908. On the other hand there are features in the New Zealand
system that differ from the common law because even at a reasonably early stage
fairness as a kind of meta-principle of law rose to the level of the common law of
English origin. It was considered a more flexible aim that built on general principles
more clearly than did the English common law as such.

In New Zealand courts have for a long time applied the principle of fairness and the
common law in interaction. They are seen as complementary parallel systems with
the common law having the upper hand. In addition, there is Maori law in New
Zealand and special courts (Maori Land Court, Maori Appellate Court and the
Waitangi Tribunal) where questions are handled that are related to the rights of the
Maori. Before the arrival of the British, the Maori had their own customary law
(Maori tikanga Māori) system that has been revived over the last 30 years. Albeit,
legal terminology is difficult to translate because the closest Maori equivalent to
concepts of law and custom is tikanga, but it is ‘not completely accurate’ because
Maori concepts do not really correspond exactly with the Western concepts which
they appear to resemble on the surface.14

The Maori language has been a legal language for a long time since the most
significant agreements between what was originally the colonial power and the
Maori are in both English and Maori. Therefore, although it is possible to get a good
general picture of the operation and basic ideas of the law of the country by
perceiving it as a common law system, in practice, nevertheless, there are other types
of internal influences and indigenous emphases that other common law systems do
not have. In the grouping of legal systems of the world it is however sensible—at
least for the time being—to place New Zealand in the sphere of common law. For

260
example, the core significance of the judge that is lacking from Continental law is
typical for New Zealand just as it is in the English common law culture. And, of
course, the legal language of English is a common feature.

We have now given a certain explanation for macro-constructs, but there

are still some questions. One of the key questions concerns the utility of
macro-constructs in modern comparative law. Indeed, how does the
research process in comparative law function and what is the role of
macro-constructs in it?
In an early stage of a study, an individual legal system can be
understood when comparing it to the theoretical-hypothetical models or
macro-constructs that have been constructed in the macro-comparative
law. The first stage ideas that are formed in this way of the objects under
study are in essence preliminary hypotheses. Accordingly, they give
references to the subsequent formation of a hypothesis. In other words,
there is a kind of hermeneutical spiral in action which is movement
between the macro-construct and foreign legal text (micro-dimension)
which spirals the comparatist nearer and nearer the constructed legal
meaning of text—yet, the nearing of the meaning is placed ultimately in
the comparative framework, and not in the internal web of legal
meanings.
As pointed out above, macro-constructs are the theoretical concepts or
ideal types that the comparatist needs and the special features of which
represent certain generalised features of legal systems. As such, the
macro-construct is the conceptual-theoretic tool of comparatists, by
means of which they can group the content of a real legal system and
demonstrate the special quality (structure, central institutions and
concepts) and central principles of operation in the legal systems, which
in a way resemble each other. We could speak of distinctive features of
law, ie the characteristics and features by means of which the system can
be recognised and demarcated from the others. Basically, any macro-
construct fundamentally does one thing: it reduces the empirical
complexity in foreign law.
In mastering the knowledge of foreign law, the macro-construct has
significance in levelling and reducing difficulties with knowledge. The
legal family, legal culture, legal sphere or legal tradition is a crudely
sketched roadmap for the comparatist or anyone else who examines
foreign law in order to find information as well as a guide for subsequent
and more specific planning of the route. But, even a micro-comparatist
too can benefit from a legal macro-map, despite its obvious restrictions.

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The more specific and detailed the research questions are, the smaller is
the significance of a fuzzy map on a coarse scale. A parallel is offered by
art: a large landscape painting looks quite different depending on
whether you look at it from the distance of a few metres or just a step
away. To put it another way, nobody wants to look at Vincent Van
Gogh’s paintings close up because the brushstroke is so rough, but from
a distance one realises that one is actually looking at masterpieces.

III. GROUPING LEGAL SYSTEMS

Apart from building macro-constructs, comparatists have already for a
long time also systematised and organised them in order to create a
global panorama of law. In spite of the differences, several macro-
comparatists have all the same presented a rather reasonable number of
suggestions for classifying them. Above (section I) a condensed general
presentation was made of the current basic groups in which a majority of
present systems can be placed either completely or at least in part.
It is likely that there are a limited number of different typical key
questions related to the classification of legal systems: can legal systems
or legal cultures of the world be classified into entities belonging to only
a few large legal groups? Which are the large legal families/legal
cultures of the world? On which criteria can the inclusion of an
individual legal system in a specific legal culture or family be decided?
Before these questions can be answered, the nature of the concept legal
family has to be explained further. In addition, the other ways to organise
and conceptualise the variety of different legal cultures and traditions of
the world ought also to be investigated. One should realise that these
macro-constructs are to a great extent overlapping although their authors
(comparatists who created these constructs) themselves might emphasise
the differences between the different macro-constructs. Ironically, the
claim of the originality of a classification is the least original of claims
made by macro-comparatists. On closer inspection each of these
classifications resembles each other.

A. Legal Family

In Introduction to Comparative Law by Zweigert and Kötz, which has

for a long time been the most influential work in comparative law and
has been translated into several languages, the concept of legal family is

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used. Zweigert and Kötz listed in their work Roman, Germanic and
Nordic laws, the common law and the Far Eastern systems, Islamic
systems and the Hindu law.15
Curiously though, Zweigert and Kötz did not themselves start the
terminological tradition (in the original work, reference is made to legal
sphere or Rechtskreis—in the translation to legal family) where the large
constructs in macro-comparison are called families. Nevertheless, their
work has conveyed to the twenty-first century this epistemological
tradition that is based on the theoretical and conceptual foundation of
European legal history. Also in the French tradition the phrase familles
de droit has been and still is used when reference is made to the so-called
large modern legal systems (grands systèmes de droit contemporains). In
short, family has been a metaphor favoured by many a macro-
comparatist.
The history of the concept of legal family is not quite clear, but it appears that in the
French tradition it was first used by Professor Adhémar Esmein (1848–1913) at the
beginning of the twentieth century: ‘Il faut classer législations (ou coutumes) des
différent peuples, en les ramenent á un petit nombre de familles ou de groupes, dont
chachun représente un systè me de droit original’ (‘The laws of nations—or the
customary law should be classified by decreasing their number to a few families or
groups so that each of them would form one original legal system’.16

In the classic work by David Les grands systèmes de droit

contemporains (first edition 1964) Romano-Germanic law, common law
and socialist law were presented as the genuine legal systems. As other
non-Western legal systems David mentioned Islamic, Hindu and Jewish
law and the laws of the Far East, Africa and Madagascar.
A significant change in macro-classifications has been the fact that
socialist law has been dropped in Europe after the developments of the
early-1990s. Furthermore, no return to the previous Slavic legal system
has taken place. It seems to have been replaced by Islamic law as the
Other law (main form of non-Western law; representing legal otherness)
and not only in a limited sense. It appears also in the form of different
mixed law combinations with secular law in various systems in which
the aim is to observe Islamic law.
A more recent example of classification that concentrates on legal families is in the
work about ‘grand’ legal systems by Cuniberti.17 His systematisation has three parts.
He distinguishes between Western law (droit occidental), Eastern/Orien-tal law (droit
orientaux) and African law (droit africain). Cuniberti resolves the inclusion in
Eastern law mainly on the basis of geography although he finds that criterion

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coincidental (coincidence géographique). On the other hand, he is of the opinion that
Eastern systems have certain typical features on the basis of which they can be
lumped together for macro-comparison. Cuniberti, however, states that there is no
special general Eastern feature in the systems of these countries because Australia
too, with its common law, is geographically included in Eastern law. He presents two
facts as the actual cause for this classification, which are related to the foundation of
the legitimacy of the State’s power and the significance of (already existing) personal
relations (ie social network). Cuniberti’s macro-comparison is based on David’s work
on everything that is essential although his classification differs in its contents from
the (outdated) classifications of David.

Further, the novel epistemic move that came in the twenty-first century
of mixed legal systems as the third big legal family between civil law
and common law has strengthened the use of the family concept in
comparative law carried out after the twentieth century as well. The
World Society of Mixed Jurisdictions of the World that was founded in
2002 has been very active and mobilised new scholars to support the
mixed legal systems thinking. This movement seems to have
strengthened the desire to keep speaking of legal cultures using the
family concept. But what does the concept family include in this respect?
Why has it become so important?
Basically it is a question of the relations—kinship between systems.
Bogdan uses the Swedish expressions släktforskningen (genealogy or
family history) and släktskap (kindred, kinship).18 In the first place the
family metaphor makes it possible to speak of family members, like
sisters and brothers and also of the father and the mother. Legal
historians too have been fond of the family metaphor because it brings
up the significance of legal history. Secondly it makes possible the use of
a more extensive family concept, ie the fact that it is meaningful to speak
of legal families belonging to the same family. Legal systems can be
more or less related. We can also talk about a close relative or a distant
relative.
By means of the family concept it is possible to speak of the relations
(kinship) between different legal systems. For example, Nordic law can
be described as a close relative of civil law, which however has some
distinctive features. The author of this book has in another connection
characterised Nordic law as the country cousin of Continental law. The
country cousin might lack conceptual-logical refinement, but it has legal
vitality; an ability to make creative decisions and has a cultural and
democratic proximity to the people. We may speak of a common Nordic
legal mentality.

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The question of being Nordic is not, perhaps surprisingly, limited to the Nordic
Countries in the geographical sense if it is approached from the legal-cultural point
of view. As a result, it is possible to regard, for example, the legal culture of the
Netherlands as Nordic to some extent although there are no legal-historical or notable
geographical ties. The Netherlands can be described as a legal culture that is in
between the German and French tradition, which is illustrated, for example, by the
1992 civil codification (Burgerlijk Wetboek) that is based more on German abstract
conceptual legal thinking than on the French one.

On the other hand, it is typical of the Dutch codification that there are several
regulations that have been enacted openly that leave courts a reasonable scope for
interpretation. In addition, the Supreme Court (Hoge Raad, literally ‘High Council’
which is the Court of Cassation) occasionally deviates from the regulations of written
law on the basis that it is in the interest of justice to do so. In the Nordic countries,
for example, so-called realistic arguments (in Swedish ‘reella överväganden’, in
Norwegian ‘reelle hensyn’, ie ‘real considerations’) are sometimes referred to
instead of justice. These kinds of arguments are related to various substantive
considerations concerning the case at hand, and normally urge the judge to take into
account not only the written law but also the practical consequences of the judgment,
ie judicial fairness in a practical legal sense.19

B. Nordic Legal Family?

Where should we place the Nordic legal culture? In spite of the fact that
the Nordic legal family has been greatly influenced by German legal
culture (not directly, but by means of legal doctrine and legal theory), it
cannot really be placed with civil law. However, broadly understood and
compared to, for example, Islamic law or the law of indigenous peoples,
Nordic law should in general be placed with civil law. However, in
comparative law we ought to distinguish Nordic law as a legal family of
its own. This is owing to the fact that between the legal mentalities
prevailing in the Nordic countries there are very obvious similarities, as
well as historical and geographical connections, that make it justifiable
to speak of the Nordic legal family. Notwithstanding, not all comparatists
have always recognised this.
Among the legal cultures of the world, common law and Nordic law
are perhaps the ones that it is most convenient to place under the concept
of legal family based on kinship. Clearly, family members have their
distinctive connections that are related to history and the way of legal
thinking: reference to family relations is sensible both historically and in
relation to law (eg substance and the doctrine of sources of law).

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Professor Thomas Wilhelmsson considers that the Nordic legal family exists owing
to the value base that has developed from historical factors, ideas of the same kind
about the role of law and the legal method as well as of the similarity relating to
substantive law and mutual interaction (Nordic legal cooperation). In spite of this,
Wilhelmsson remarks fittingly that ‘it does not however mean that all the children of
the family look alike’.20 With this he refers to the fact we can distinguish two sub-
groups of Nordic law, which are the Western and the Eastern law group. The Western
group consists of Denmark, Norway and Iceland while Sweden and Finland are
included in the Eastern group. By means of the legal family metaphor, Wilhelmsson
perceived Finland and Sweden as legal twins whose development since 1809 has to
some extent gone in different directions. In this respect it is not a question of
identical twins, but twins all the same, ie creatures that are connected by family
relations.

Husa, Kimmo Nuotio and Heikki Pihlajamäki have emphasised the legal-
cultural unity of Nordic law in the respect that although there are
differences in the positive law and legal praxis, the Nordic legal thinking
is characterised by a similar type of legal mentality, which distinctly
differs from civil law and common law.21 They see that Nordic law can
on the basis of legal culture, legal history (kinship) and legal content be
considered a kind of legal family. This is the case in spite of the fact that
the European Union has had an effect on it and has complicated the
internal family relations of Nordic law.
At the moment three Nordic countries belong to the European Union, but the other
two are members (Norway and Iceland) of the European Economic Area. However,
the Nordic legal culture has not fully identified with the legal culture of the Union.
According to the conclusions of Ulf Bernitz, ‘Scandinavian law is characterized by
its specific legal method, its mixture of statutory and case law and its, in relation to
most continental EU countries, less theoretical and conceptualized approach to legal
problems’.22 This also means that the Nordic legal culture differs from that of the
EU in general.

C. Legal Culture

It is useful to note that although legal culture is important for this book
and that it also plays an increasingly significant role in the comparative
study of law, it may have different meanings. In its most general sense it
is ‘one way of describing relatively stable patterns of legally oriented
social behaviour and attitudes’ as defined by comparative legal
sociologist David Nelken.23 Now, in comparative law the concept of
legal culture can be used in at least two ways. On the one hand, it refers

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to a group of factors (eg language, mentality, politics and history) that
are outside the formal legal system but are connected to the actual
operation of the legal system in a broad sense. In such cases reference is
made to system-specific cultures, such as litigious American, non-
litigious Japanese or semi-litigious French legal culture. The degree to
which a society is litigious is a question of legal culture: what kind of
appetite for judicial solutions a society has involves much more than
mere positive rules. For instance, Americans are quite accustomed to
express their claims in legal dispute resolution whereas in Japan this is
not the case.
On the other hand, in comparative law literature legal culture is used
as a macro-level concept with which reference is made to entities larger
than one system, such as Western legal culture, Asian legal culture or
Islamic legal culture. It is also possible to speak about German or
common law legal culture. In practice, legal culture competes with the
concept of legal family, and it has been influenced mainly by macro-
level legal sociology, rather than by legal history. One renowned way to
classify different legal cultures is the classification of big legal-cultural
formations by Ugo Mattei. Although Mattei did not himself speak of a
classification of legal cultures (legal patterns or actually legal-cultural
patterns), it was precisely the point of his proposal: the division of the
world of law into macro-constructs on general legal-cultural grounds.
Mattei presented the best-known version of his suggestion for forming classifications
of legal cultures in 1997 in his article Three Patterns of Law, the original version of
which was published in Italian.24 To begin with, Mattei developed his suggestion on
the basis of the experiences he had from his international teaching, when he realised
that he needed a new pattern that would facilitate the mutual understanding of the
future jurists who came from different legal cultures. The aims were at least partly
pedagogical just like they were with David and also Zweigert and Kötz. Unlike the
other macro-comparatists, Mattei did not aim at a meticulous and empirically
adequate description of all the systems in the world; instead, he continued with the
basic approach by aiming at general control, ie forming Weberian ideal types. Yet,
Mattei clearly wanted to go, as Nelken says ‘beyond the tired categories so often
relied on comparative law and incorporate the attention to the ‘law in action’ and
‘living law’ which is usually missing from comparative lawyers classifications and
descriptions’.25

As a starting point there was an observation that old classifications were

not really holding water any more. Mattei considered that there was an
obvious need to create a new classification. He called his classification a
taxonomy that was aimed at replacing the old classifications and

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mending their deficiencies both empirically and theoretically. The aim
was also to simultaneously get rid of the earlier dominant position of the
West. The basic idea was to get started with the notion that there are (in
the sense of an ideal type) three kinds of norm types that are adhered to
in the social context and which have an effect on the behaviour of
individuals. The main sources of the norms are politics, law and the
philosophical or religious tradition. The theoretical starting point of the
classification criteria was not Western law/legal because the norm types
distinguished on those grounds are—maintained Mattei—culturally
neutral. For example, the Western system contains all norms but their
mutual significance is different from that in Oriental law, for instance. In
actual fact Mattei distinguished between the Western legal culture and
the two sub-types of non-Western law.
Mattei did not claim that any real legal system would be like one of the basic norm
types. In all or at least most systems it was possible to separate one feature that was
decisive (hegemonic pattern). This means that even within the same legal system
there could in different fields of law be dissimilar legal-cultural typical features,
which were characteristic considering the entity of the legal system. Classification
was based on the legal-theoretical assumption according to which there are norms,
which have basically been created by three ideal-type sources of norms and by means
of which it is possible to evaluate the principle nature of legal systems. In the
classification three basic types of legal system were separated: (1) professional law;
(2) political law; and (3) traditional law.

Mattei was of the opinion that classification of this kind was rigid in
nature. Over time a system that at present belongs to another class can
change its place in the classification if its dominant feature changes
(hence legal systems ‘never are, they always become’). If for example a
system that belongs to a class is transformed so that either professional
or traditional law rises to a dominant position, this alteration also has to
be observed in the classification. Like all the other suggestions for
classification, the suggestion of Mattei was also —as he, too, admitted
—a rough analysis that was based on reasonably strong generalisations.
Albeit, he emphasised the macro-nature of his legal-cultural constructs
by saying that classifications were not an aim as such but the means by
which the entity of the legal systems in the world can be conceptualised
and mastered by comparison.

i. Professional Law

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The traditional classification into common law and Romano-Germanic
law is a sub-classification of the professional family of law. Its starting
point is the idea that Western law is—from the macro-comparative point
of view —a rather homogenous group. The main representatives of the
group are the American and English versions of common law, French
law and Germanic law, Nordic law and the hybrid systems of both
common law and Romano-Germanic law (eg Scotland and Quebec). In
this connection Mattei brought up two dominating core features of
Western law: (1) the separation of the forums where legal and political
decision-making takes place and (2) the extensive secularisation of law,
ie separation from norms with religious origin.
Law and politics are not separate in professional law, but to a great
extent they have been separated; the point is that the legislator or
government or any other institution representing political power cannot
directly influence legal processes in courts. Part of the norms can also be
of traditional origin, but this does not apply to the majority of norms, ie it
is not a dominant or decisive feature.
The legitimacy of the system that is based on professional law is
argued by the fact that it is a professionally specialised profession
(undertaking which requires special education and skill). Overall, the
situation is such that the field of law is controlled by trained specialists
(jurists), the field of politics by politicians and the field of religion by
priests. Different sectors of life have become specialised and
differentiated. It is this differentiation that entitles the discussion on
professional law.

ii. Political Law

In this group of law, law and legal processes are to a great extent defined
by political relations. The government in its operations is not restricted
by law; instead, it can to a great extent define both the limits and content
of its operation. In systems that belong to this group there is also
professional law and professional specialists in law (jurists), but the
decisive characteristic of these systems is political law although it does
not exclude the existence of other norm types. (Mattei in fact was of the
opinion that all systems are partly hybrid, ie to some extent they contain
norms from all norm types.)
At that time Mattei included in the group of political law two different sub-groups:
(1) a majority of the ex-socialist countries excluding Poland, Hungary and Czech

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Republic and (2) the least-developed States of South America excluding, however,
the States where Islam had a dominant position. Cuba too belonged to the group of
political law although it is situated in the Western hemisphere, while China,
Mongolia, Vietnam, Laos and North Korea as well as the republics of the former
Soviet Union that were in Asia belonged to traditional law, to the sphere of Asian
legal culture.

As far as Europe goes, this group has changed radically due to European integration,
and the classification is no longer timely from the point of view of individual
systems. On the other hand, it is clear that China has not simply broken loose from
some ideas of socialist law although it has borrowed plenty of legal decision models
and legislative ideas from Western countries. A similar development is also to be
seen in Vietnam and recently also in Cuba. North Korea continues to differ from all
the others, and its legal system is still very peculiar and from the comparative law
point of view a real oddity with an appalling and shocking record of serious human
rights breaches.

Political law is legitimated by arguments that to a great extent are similar

to the ones used in connection with professional law (eg democracy or
common good). The members of the legal culture in political law are
connected by a certain kind of general social and/or economic instability,
and therefore Mattei called these systems alternatively by the name law
of development and tradition.

iii. Traditional Law

This legal group included legal systems in which law and religion, or
some other philosophic-religious tradition, have not been separated, ie
the secularisation that has passed through legal systems has not occurred
as in political law and professional law. Mattei included in this group
three different sub-groups: (1) systems of Islamic law (different
versions); (2) systems of Hindu law; and (3) systems of Asian or
Confucian tradition. In addition to the professional jurists these systems
include social groups (such as Muslim priests) who have a significant
impact on the norms that guide the behaviour of individuals. Systems
that belong to this legal family have the institutions and other formal
characteristics recognised by Western law with the exception that in fact
their operation is different from that of Western systems. Law in books
and law in action can differ considerably in places.
On the other hand, it has to be noted that law in books and law in action do not differ
only in connection with borrowed Western law, but frequently also the traditional-
religious law is affected. Legal anthropologist and comparatist Baudouin Dupret has

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observed in his studies a distinct difference between the learned upper-level Islamic
law and the Islamic law that is applied in practice. On the basis of his research he
does not define Islamic law by means of upper-level abstractions but states as
follows:

My contention is that Islamic law is what people consider as Islamic law, nothing
more, nothing less, and that it is up to theologians, believers and citizens, not social
scientists, to decide whether something does conform or not to some ‘grand
tradition’.

Baudouin’s article presents an interesting approach to Islamic law, which he has

coined as praxiological (realistic internal view).26

Mattei’s classification is intriguing because it broke the earlier legal

family division, left aside the historical connections between systems and
emphasised certain legal-cultural general features. Although
classification has aroused discussion among comparatists, and there are
plenty of references to Mattei’s article in the study of comparative law, it
has not threatened the position of legal families as the most central
conceptual-theoretical tool in the macro-comparative analysis. Instead,
the concept of legal tradition has introduced suspension and life of a
novel kind in the field since the 2000s.

D. Legal Tradition

In the comparative law discussion legal tradition has been used in

different contexts for a long time, but at the beginning of the twenty-first
century the concept has been specifically connected with a particular
comparatist. The first edition of the work Legal Traditions of the World
by Canadian Patrick Glenn was published in 2000, and the fifth edition
saw daylight in 2014. In the field of macro-comparison the book has
become a classic that has in general been received rather positively
among comparatists. From the sphere of critical comparative law,
however, there has been criticism of Glenn, saying that the era of
building macro-constructs is a thing of the past. The great majority of
comparatists have, however, given Glenn’s opening a very warm
welcome in spite of the fact that the arguments are perhaps not totally
understood. The book has also stirred considerable criticism, and one
need only look at the first issue of The Journal of Comparative Law—
which was dedicated to Glenn’s opus magnum, ie Legal Traditions of the
World.27

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Glenn’s work has partly replaced the earlier paradigmatic analysis by
Zweigert and Kötz. The work, the manuscript of which received the
Grand Prize awarded by the International Academy of Comparative Law
in connection with the international conference organised in Bristol in
1998, suits modern comparative law very well with its new orientation
and its general legal-cultural emphases. In the general comparative law
context, the work continues the more general changes in direction; this
has meant the turning of the comparative law emphasis towards that of
culture, an emphasis that was first seen almost 30 years ago. Glenn’s
approach represents modern macro-comparison where the orientation is
legal-cultural and has a modern anthropological and legal-pluralism
friendly touch. The fact that macro-comparison was earlier stuck in the
scholarly trench war between civil law and common law or Western and
non-Western law injected into the discussion on comparison Europe-
centric emphases that had a belittling tone towards other legal cultures.
For Glenn the most significant legal traditions in the world are the
following: the Jewish, civil law, Islamic, common law, Hindu and the Far
East legal traditions and the oral traditions of the indigenous peoples
(chtonic legal traditions). Glenn not only deals with each tradition in its
separate box but puts them in a parallel position with each other,
exposing also the interaction (present and past) between different
traditions. The idea of the national character or autonomy of one’s own
law appears to stand on a shaky ground in the light of Glenn’s work if
and when the perspective is stretched over centuries. The interaction
between traditions is outlined in the work via long processes, not so
much by means of individual cases of foreign law adoption. Glenn
concentrated on the broad lines and does not pay attention to the forms
of concrete legal loans or transplants or their travel from one system to
another.
Glenn manages to show the interaction between different traditions
while simultaneously efficiently muffling the Siren song of relativism,
which aims at emphasising the distinctiveness of different traditions and
their incapability of becoming involved in a genuine dialogue. The
book’s subtitle Sustainable Diversity of Law describes the aspiration for
the preservation of a polyphonic legal culture. Glenn’s argument is a
powerful point for diversity and cultural pluralism while simultaneously
avoiding being naïve or patronising in connection with non-Western
traditions.
According to Glenn’s theoretical ideas, there has been a desire in
Western legal cultures to denounce the relation to the past while

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simultaneously Western legal cultures have refused to admit that Western
law (civil law and common law) too are forms of traditional law, the
rationality of which is part of the self-understanding of that particular
tradition (it regards itself as a rationalistic form of law). For a European
or American jurist, the expression traditional law referred as late as in
the twentieth century to law which was inferior and irrational (ie non-
Western) and left behind or surpassed in development by their own legal
culture. Glenn’s approach is not evolutionary but hermeneutic and prone
to pluralism.28
By tradition Glenn refers to the part of the past that is still present at
this time and has a chance to be transmitted even further. Also the
expression the presence of the past used by Legrand fittingly describes
the thinking that emphasises continuity and the significance of tradition.
It is a question of the impact of the past and of how the past stays alive
and reaches the present; pastness is conveyed in the information
contained in tradition. Family classifications and the different groupings
of legal culture presented above hardly contain dynamic interaction
between legal families or cultures while Glenn’s basic idea is a
continuous dynamic relation. Different legal traditions are in interaction
with each other, which means that between them information (concepts,
institutions, solution models, principles etc) is on the move.
In the sphere of Western law the traditionalism of law is particularly clearly visible in
the common law, whose relation to the past differs from that of Continental law,
which emphasises the present. In part the common law is reminiscent of the Islamic
law tradition. The grand old man of common law Sir Edward Coke (1552–1634)
emphasises the source of law of the past generations almost poetically:

our days upon the earth are but as a shadow, in respect of the old ancient days and
times past, wherein the laws have been by the wisdom of the most excellent men, in
many successions of ages, by long and continued experience (the trial of right and
truth) fined and refined.29

According to Glenn, the lines of demarcation do not follow legal history

or geography or legal-cultural taxonomies. The distinction is drawn by
the internal attitude, which traditions have to themselves (ie how they see
themselves in comparison to other legal traditions) and others. According
to some traditions, the truth is embedded in them, while it is not present
in other traditions. The truth can be religious, and it can be based for
example on divine intervention. On the other hand, the truth can be
rational by its nature, and it can be based on the belief that one’s own

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legal culture is the most sensible one and best suited to the modern way
of life (civil law and common law). Moreover, such traditions are a
threat to others because they want to dominate other legal traditions;
there is an element of legal imperialism (legal-cultural control over other
countries and cultures). However, because they in their own
understanding are basically ‘right’, this universalism is not conceived
(looking at it from the inside of the Western hemisphere) as being a
problem.
Traditions that are based on allowing other parallel traditions are
tolerant by nature, and they do not directly threaten other traditions (eg
Hindu or Asian legal culture). According to Glenn, if we want to
promote dialogue and cultural coexistence, it would be a good idea to get
acquainted with what these traditions themselves teach about the matter.
Glenn has made an extremely interesting observation, according to
which in addition to different identifiable vertical legal traditions, it is
possible to distinguish within them different horizontal legal traditions
that occur simultaneously within different traditions. Casuistry and
analogical case-based reasoning (Jewish, Islamic and common law)
among others are mentioned. In addition, there are considerable
similarities in traditions concerning legal professions and their role (eg
the village elder, judge, theologian-judge, qâdi).
Glenn aims most criticism in his work at a thesis according to which
different legal traditions would be incommensurable, ie it would not be
possible for them to engage in a shared dialogue, instead either one
should be chosen, not both. But, if there is interdependence, and hence
sharing, there is commensurability. Rejection of the incommensurability
thesis does not, however, presume the fusion of different legal cultures;
instead, it rather emphasises the significance of an equal dialogue. Yet, it
is highly unlikely that legal traditions would ever find full agreement—in
a pluralistic world there are always differences and colliding
understandings about law.
Learning from other legal cultures can also be involved in the
dialogue, of which we can mention as examples the legal cultures of
indigenous peoples and the environmental legal and philosophical
discussion on the inherent value of nature or animal rights that has an
interesting link to their thought pattern. Importantly, the direction of
learning is not necessarily automatically in favour of Western solution
models (the West teaching others, ie civilising the ignorant). It is possible
to keep one’s eyes open and to learn something new while
simultaneously sticking to one’s own set of legal values. We may

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conclude by noting how well Glenn’s approach actually follows many of
the traditional virtues of comparative law: willingness to learn from
others, openness and ability to tolerate Other law.

IV. MACRO-CONSTRUCTS AND METHODOLOGY

Some things seem obvious. Macro-constructs, such as legal family, are
not necessary: the comparatist can do without macro-constructs. So, if
comparative law is practised out of a practical interest with an intention
to carry out objectives of a practical origin, the question of the
classification of the world’s legal systems or the results of the
classification is hardly very interesting. The unavoidable question here
is: does micro-comparison benefit from macro-comparison?
A court looking for inspiration in foreign law is hardly interested in
the legal family classification when the aim is to solve the legal case at
hand. A court applying EU law does not study the interpretations of the
EU norms made by other Member States for the sake of macro-
comparison but in order to look for support in the interpretation of the
EU law. The same applies probably also to civil servants working with
the drafting of legislation; although from the point of legislative benefit,
legal family classifications could have some (unconscious) significance
when it is decided which legal systems are sensible from the point of
view of the (national) State’s legislation to adopt legal ideas from other
countries. This is demonstrated in the practical legislative work when the
law-drafting civil servant looks for ideas and models for regulation from
foreign systems. The legislator tends to stick to systems and legal
cultures with which they are familiar (and which they think to be
significant) and where their knowledge of languages and their legal-
cultural literacy is (felt to be) sufficient.

A. Change in the Knowledge Environment

When the aim is to construct theory for comparative law or to otherwise

serve the attempts to produce general knowledge through comparative
law (eg how law interacts with the society in different legal cultures), the
situation is more demanding than in law-drafting. The difference
between these two comparison-interests should not be overly emphasised
as has become clear above. The construction of macro-constructs and the
classifications and groups formed are not useless for the practical

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comparatist either. With the help of classification the problem of the
multiplicity of the legal systems in the world diminishes, and the
approachability of foreign legal systems improves as a result of the
typification and classification of legal systems. By means of legal
families and other macro-level classifications it is possible to lower the
knowledge threshold when foreign law is examined. At best, macro-
constructs may reveal something general about how jurists in the legal
culture in question are usually inclined to think and act.
One example is the attitude to judges. In Continental legal culture judges are
respected, but legal-culturally they do not have a similar status to that in the English
common law, which in the words of Cuniberti is ‘un droit jurisprudential qui glorifie
ses juges’, ie case law that glorifies its judges.30 In the same way within Islamic law
it is possible to note that a qâdi is a respected person with whom not only the Islamic
administration of law but also social respect is associated. However, this does not
mean that judges would not be respected; it is a question of how they are envisaged
—as administrators of law, hero judges or highly learned but bland authorities.

One of the biggest challenges that the comparatist can meet is the
knowledge environment attached to foreign law that is different from
one’s own law. Siems is spot on when he says that ‘as soon as lawyers
leave the borders of their own country, they may feel as if they are
stranded on a foreign planet. Learning about comparative law aims to
address this problem’.31 Foreign planet refers to the change of legal
environment, ie the sum of legal surroundings in which lawyers are
accustomed to operating. The epistemic change in the knowledge
environment coming with the foreign law becomes easier to control if it
is possible to analyse the world outside one’s own legal system and to
perceive it by means of features that for it are common and typical.
In other words, the classification of legal systems into legal families or
other macro-constructs may have an influence on the preparedness to
acquire information and the ease or difficulty related to knowledge
production. It is the question of the knowledge level in the preliminary
phase of study to decide at which point it is possible by means of macro-
constructs to soften the epistemic chaos than follows when facing a
foreign legal world. A macro-construct can operate as an epistemological
preliminary analysis and result in a hermeneutical preliminary
comprehension of the foreign law under study. In practice, this means
that law’s components work as a whole: the components (rules,
principles, cases, customs etc) cannot be understood without some
preliminary understanding of the whole legal system/culture, and the

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whole cannot be understood without comprehending its legal
components (ie hermeneutic circle as a model of the process of
understanding). The epistemic benefit of macro-constructs is maximal
when the systems differ from each other radically and minimal when the
systems are legal-culturally very close. For example, for a Nordic jurist it
is not particularly useful to read general comparative law works on what
a Nordic legal family is like; instead, it would be preferable to
concentrate directly on the study of one’s own specific topic (eg how the
legal issue X has been solved in different Nordic countries). Or, for the
common law lawyer it would hardly be greatly beneficial to read about
the common law legal family when studying the law of another common
law country in regard to a specific legal problem. A Dutch comparatist
does not benefit much from macro-comparative law when studying
German law or an Australian comparatist when studying Canadian law
etc.
The benefits from the macro-constructs formed are mainly of two
kinds. On the one hand, the benefits can have a direct link to actual
comparative law study. On the other hand, the benefits can be
instrumental in their nature and establish an initial connection with
pedagogical objectives.
What about the comparative research process in micro-comparison
and macro-comparative law? There are in fact, at least two kinds of
comparison taking place. First, a legal system is compared to a pure type,
ie a macro-construct built in the comparative law theory. Double
comparison of this kind enables two different things. The comparatist
can approach a legal system that is unknown to them on the basis of an
organised preliminary hypothesis. The macro-level preliminary idea
makes the later acquisition of material easier and creates a foundation for
the explanation of differences and similarities. Organisation of the
knowledge material gathered in accordance with the style and spirit of
the legal system studied presumes some sort of understanding of the
legal family or more extensive legal culture.
Secondly, the knowledge acquisition gets easier for the comparatist
because they can compare the legal system under study via some other
hypothetical context than their own legal system (unfamiliarity element).
The construct built into macro-comparison at the early stages of research
provides the starting point for the comparatist instead of their own legal
culture and legal system. The role of legal families or legal cultures may
be part of the process of knowledge acquisition and to facilitate the
management of the versatile knowledge in the early stages of the study.

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The transfer from one’s own legal system to the foreign legal system
becomes easier when the comparatist can exploit organised ready-made
macro-constructs as a preliminary fuzzy map of law.

B. Concentration on Basic Matters

By means of macro-constructs it is possible to describe and approach

reasonably rationally legal systems whose real content resembles the
content that is in accordance with a specifically constructed theoretical
macro-construct. A legal family or legal culture offers the comparatist a
rationally constructed tool for preliminary comprehension. Such a
preliminary tool (the macro-construct) is in terms of knowledge better
than resorting to one’s own preconceptions and possibly false
presumptions about the content, characteristics, structure and legal praxis
of the foreign law or legal culture. In other words, a macro-construct is
the first timid step away from the ethnocentric conception of what is
‘law’ and what is ‘legal’. For example, without sufficient basic
knowledge of Islamic law a Western comparatist can easily end up
reinforcing their misguided preconceptions.
Many comparatists at present have a rather critical attitude to macro-constructs, but
in practice everyone admits that they have at least a pedagogical significance. For
example, Bogdan comments on legal families saying that they are ‘a rather crude
pedagogical instrument’ although he simultaneously devotes about 65 per cent of his
book to the macro-level study of different systems.32 The pedagogical benefit from
legal families is related to the epistemic first-aid they offer for the study of foreign
law and comparative law. The macro-level forces one to concentrate on general
structures, general doctrines and general principles. However, In ‘New approaches’
to comparative law, like that of Siems in his Comparative Law (2014) and in this
book, macro-comparative law has a role, but legal families/cultures do not consume
the majority of the text.33

One may wonder, however, whether we are placing too much weight on
macro-constructs and their possible benefits. It has been argued above
that macro-constructs are not merely for pedagogical purposes. And yet,
fundamentally there certainly is also pedagogical thinking. In short, it is
not essential to learn an unreasonable amount of the content of material
law in order to be able to operate with foreign law in the capacity of a
comparatist. In the same way, it would not be sensible to teach the
content of the national legal system by requiring the learning of statutes
or cases by rote. Different legal rules, precedents and the statutory law in

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particular can sometimes change quickly, but parts of law and
particularly part of the knowledge concerning the legal system are much
slower to change by nature. Such knowledge includes, for example, the
concept of the source of law, the rules concerning the use of the sources
of law and the core content of legal concepts and terminology: the lock,
stock and barrel of an organised large-scale normativity. It is precisely
the sustained knowledge of these types of typical characteristics, such as
the alignment of legal interpretation, that are targeted at when legal
systems are classified into different macro-constructs.
If a person who studies foreign law or otherwise has to be in contact
with it and has in advance been acquainted with the general legal and
legal-cultural knowledge contained in a macro-construct, it is easier for
them to understand the concrete (culturally distant) legal systems
included. However, the further one gets in the study of foreign law and
comparative law, the smaller the significance of macro-constructs
becomes. In the classification, the significance of individual legal
families or legal cultures is greatest in the first stages of comparison
when foreign law is approached for the first time and an overall picture
of it is being built. When the level of study becomes more detailed, the
significance of macro-constructs becomes smaller and the original
roughly sketched roadmap becomes more nuanced and more specific.
This is, unavoidably, when generalisations become far less useful than
detailed and accurate knowledge of law (how socio-legal question X is
solved in system Y).

V. FINALLY
Today the challenge of macro-comparison is the interaction between
legal cultures and the fact that they penetrate each other. There is clear
hybridity and plurality if one conceives law globally. It is not possible to
completely ignore normatively significant organised systems even if they
seem foreign. An idea of a culturally ‘pure’ or ‘national’ legal system
has naturally always been faulty, but now its crumbling is more visible
than before: the economy, the Internet, communication and supranational
interests link legal cultures and overlapping normativities with one
another.
Along with migration, smaller parts of foreign legal cultures and
normativities travel, while on the macro-level integration and
globalisation form new hybridities by mixing together different large-

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scale legal-cultural ingredients. If and when old mixed systems transform
into ‘pure’ ones, then, old ‘pure’ ones transform into mixed ones leading
to what we label an elusive global mixité of laws. For example, in Europe
such culturally foreign normativities as Islamic marriage norms of
immigrants (external dimension) have to be faced. Finally, macro-
constructs have to be changed too, but is it possible to speak of global
evolution of law in connection with them? Do legal systems or cultures
evolve?

1 For a concise introduction to the common law with helpful comparative references
to civil law, see G Samuel, A Short Introduction to Common Law (Cheltenham, Edward
Elgar, 2013).
2 However, this certainly does not mean that there would not be statutory laws.
Rather, it is a question of legal mentality which Samuel (ibid 78–79) calls ‘spirit of
non-codification’.
3 P Jestaz and C Jamin, La doctrine (Paris, Dalloz, 2004) 174.
4 VV Palmer (ed), Mixed Jurisdictions Worldwide: The Third Legal Family, 2nd edn
(Cambridge, Cambridge University Press, 2012).
5 Palmer, ‘Introduction’ in ibid 3–18, 16.
6 See B Havel, ‘The Czech Republic’ in J Smits (ed), Elgar Encyclopedia of
Comparative Law, 2nd edn (Cheltenham, Edward Elgar, 2012) 279–85.
7 S Farran, E Örücü and SP Donlan (eds), A Study of Mixed Systems: Endangered,
Entrenched or Blended (Farnham, Ashgate, 2014).
8 See R French, ‘The Case of the Missing Discipline: Finding Buddhist Legal
Studies’ (2004) 52 Buffalo Law Review 679.
9 R Mańko, ‘Survival of the Socialist Legal Tradition?’ (2013) 4 Comparative Law
Review 1.
10 A Uzelac, ‘Survival of the Third Legal Tradition?’ (2010) 49 Supreme Court Law
Review 377.
11 See D Käsler, Max Weber: An Introduction to his Life and Work (Chicago,
University of Chicago Press, 1988) 180–84.
12 For a more detailed discussion (with references), see J Husa, ‘Family Affair—
Comparative Law’s Never Ending Story?’ (2014) Annuario diritto comparato 25.
13 ‘La notion de “famille de droit” ne correspond pas à une réalité biologique’, R
David, Les grands systèmes de droit contemporains, 11th edn by C Jauffret-Spinosi
(Paris, Dalloz, 2002) 16.
14 See Māori Custom and Values in New Zealand Law (Wellington, The Law
Commission, 2001).
15 See K Zweigert and H Kötz, Introduction to Comparative Law, 3rd edn (Oxford,
Oxford University Press, 1998) pt I B.
16 A Esmein,’ Le droit comparé et l‘enseignement du droit’ (1900) 45 Nouvelle revue
historique de droit Français et étranger 488.
17 See G Cuniberti, Grands systèmes de droit contemporain, 2nd edn (Paris, LGDJ,
2011).
18 See M Bogdan, Komparativ rättskunskap (Stockholm, Norstedts, 2002) 76–77.

280
19 In the context of Nordic legal culture, see J Husa, K Nuotio and H Pihlajamäki,
‘Nordic Law’ in Husa, Nuotio and Pihlajamäki (eds), Nordic Law—Between Tradition
and Dynamism (Antwerp, Intersentia, 2007) 1–39.
20 Public Speech ‘Oikeusperhe ja ep ä identtiset kaksoset’ (‘Legal Family and
Unidentical Twins’) delivered 23 October 2008 at University of Helsinki.
21 See Husa, Nuotio, Pihlajamäki, Nordic Law (n 19).
22 U Bernitz, ‘What is Scandinavian Law? (2007) 50 Scandinavian Studies in Law
13, 30.
23 D Nelken, ‘Using the Concept of Legal Culture’ (2004) 29 Australian Journal of
Legal Philosophy 1.
24 U Mattei, ‘Three Patterns of Law: Taxonomy and Change in the World’s Legal
Systems’ (1997) 45 American Journal of Comparative Law 5.
25 Nelken, ‘Using the Concept’ (n 23) 2.
26 B Dupret, ‘Legal Pluralism, Plurality of Laws, and Legal Practices’ (2007) 1
European Journal of Legal Studies 1.
27 The issue was entitled ‘A Fresh Start for Comparative Legal Studies? A Collective
Review of Patrick Glenn’s Legal Traditions of the World’ (2006).
28 For a discussion of Glenn’s argument in a concise form, see J Husa, ‘Emancipation
or Deprivation for European Legal Mind? The Contribution of the Legal Traditions
Approach’ (2006) 13 Maastricht Journal of European and Comparative Law 81.
29 In Calvin v Smith, 77 Eng Rep 377 (KB.1608).
30 Cuniberti, Grands systèmes (n 17) 127.
31 M Siems, Comparative Law (Cambridge, Cambridge University Press, 2014) 1.
32 ‘Ganska grovt pedagogiskt instrument’, Bogdan, Komparativ rättskunskap (n 18)
79.
33 Siems, Comparative Law (n 31) chs 3 and 4.

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10

Legal Evolution?

IN MACRO-COMPARATIVE LAW the conceptual basic blocks have

for a long time been the same tripartition: common law, civil law and
other systems or legal cultures. This seems, if nothing else, to
demonstrate the fundamental conservatism and permanence of law. On
the other hand, if we glimpse at present-day macro-comparison and the
theoretical basic concepts used in it, change too can be observed. This is
of course natural because in spite of its rigidity law does change and
evolve. On the surface level the change is quite obvious: new Acts are
enacted; old Acts are abrogated or amended, new precedents override old
precedents, new normative customs are developing etc. Also the objects
governed by law change: while the Romans regulated the use of slaves
(as property with no legal personhood), today for example the
ownership, renting or leasing of a car is regulated. In those common law
countries where high courts create precedents with their decisions, it is
no longer acceptable to refer to, say, the eighteenth-century decision on a
case concerning the master’s right over subordinates although it is
possible to refer to the same case (similar type of factual situation) when
evaluating how to legally define master, ie foreman. But can this kind of
inevitable change in law be conceived or even described as the evolution
of law? There are many possible answers and we will look at some of
them from the point of view of macro-comparative law.
A legal historian who knows the law of Antiquity might insist the
opposite and describe how the essential features of our system have a
surprising resemblance to the features of Ancient Rome or at least a great
resemblance to the later ius commune, which was a combination of
Catholic canon law and secular Roman law. Or, an expert on Islamic law
on the other hand might emphasise the lack of change (closing the gates

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of ijtihad) and hold that jurists of our time are all bound to the
unquestioned acceptance of their respected early predecessors as the
authoritative doctrinalists of Islamic law. So, all that present Islamic
lawyers can do is to issue legal opinions based on or drawn from
established early precedents, which are regarded as classical Islamic
jurisprudence (fiqh). However, there are some Muslim legal scholars
who would like to reinterpret Islamic law for modern needs, and they
claim that the practice of ijtihad (as legal interpretation and reasoning
based on sacred texts) ought to be revived.
On the other hand, the question of the evolution of law is legal-
culturally sensitive (does it mean also development?), and there is a
danger that the comparatist is alienated from the research-ethical
foundation of comparative law and begins to put different legal cultures
in a ranking order according to economic efficiency or how legal
cultures uphold the rule of law, liberal constitutionalism etc. This is by
no means a novelty in the world of comparative legal research. In the
nineteenth century and at the beginning of the twentieth century,
different legal systems of the world were referred to and classified on the
basis of their state of development or the lack of it. In the early-1900s,
scholars believed by and large that the development of law went through
a series of stages, ie from a non-Western uncivilised form towards
Western civilised forms. Classifications of that time also used the
concept of evolution, but in them the evolution (understood as an
improvement) of law was associated with race or culture. On that basis,
the ‘underdeveloped law’ of undeveloped races and the developed law of
developed races were analysed. Undoubtedly, the Congress in Paris in
1900 reflected in many ways this ethnocentric thinking, which white
European men deigned to maintain in their arrogance concerning law.
As late as in the twentieth century, race, nationality and culture were
concepts used for ranking legal systems and played a key role in the
classification and systematisation of different legal cultures and systems.
But if the earlier racist approaches are rejected—as is right and proper—
and the emphasis is put on macro-level evolution, we are entitled to ask
whether the concept of evolution at all is suitable for conceptualising the
evolution of different legal systems and cultures of the world and for
giving them a comprehensible form. Can we speak of legal evolution in
macro-comparative law? Is the transfer of a system from one legal
culture over to another, either completely or partly, evolution of law or
just commonplace alteration? If customary systems transform into hybrid
and from hybrid into, say, civil law is evolution in the full sense of the

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word a fitting conceptualisation? If so, then can we also have legal
cultures which are endangered, ie forms of law that will likely become
extinct?

I. IS THERE EVOLUTION IN LAW?

Legal evolution—if we adapt the evolution theory that Charles Darwin
(1809–82) developed—refers to alteration in the permanent features of
legal systems over time. In evolution, legal systems adapt to their
environment gradually. It is a series of (social) events that cannot be
controlled and the alteration of the permanent characteristics of legal
systems. Through evolution that has already taken place, the law in the
world has developed into its present state of a diversity of different legal
cultures. The mechanisms of legal evolution are the descent of legal
systems (the receiving system adopts features of the donating system),
mutation (receiving systems are not alike) and selection of law (a kind of
natural selection, ie different receiving systems operate in different ways
—degrees of functionality and dysfunctionality vary).1
In the world of law, permanent features mean features that go deep
into the system, such as legal systematics, the doctrine of the sources of
law or the nature of law (divine v secular), which change considerably,
slowly over sometimes very long historical periods. Also deeply rooted
legal institutions, like the trust or jury, underline the permanency of law.
Change in law rarely, if ever, takes place in a leap, not even in
connection with a revolution.
An example of these deep cultural features of law is the division of Continental law
into private and public law, which is reflected everywhere in the legal system. This
distinction can be detected in Roman law. The same systematics is lacking in the
sphere of the Anglo-American common law tradition, which has received
considerably less Roman influence. A similar permanent characteristic is also the
way in which a system produces new legal norms in an acceptable way: does it
happen by means of a legislative organ, through precedents of higher courts or
through divine revelation? Systematics is also reflected in legal professions, like in
Great Britain, where jurists working as lawyers have in recent years been separated
into two categories: solicitors (working in law offices) and barristers (working in
courts). In Continental law the division used in the common law is not recognised but
instead there is a different division into notaries public and jurists —in the lay-
character legal tradition of Nordic countries both classifications are totally unknown
even though the distinction between private law and public law is upheld. And, for
instance, in Islamic law there is the distinctive institution of qâdi.

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Sometimes, these permanent legal-cultural features introduce unexpected
parallels at the macro-level. At the core of the common law there has
always been the judge, and the common law has been described by the
emphatic expression judge-made law. Thinking of a similar type can also
be detected in Islamic law where the judge qâdi is functionally akin to
the foundation of the system. Decisions made by the learned Muslim
judge must of course be based on the sources of Islamic law, but
ultimately the judge is institutionally independent. A Muslim judge can
through prestige attain a prominent position as a distinguished
administrator of law. In the same way, the statements of a senior
common law judge are more significant than those of other less
respected judges. This legal-cultural characteristic seems to be
completely lacking in Continental and Nordic law: judges seem (or they
are assumed) to speak with the words of law and not with words of their
own. Broadly speaking, we may detect the ideas of Montesquieu
reflected in these non-common law legal mentalities. Montesquieu in his
Spirit of the Laws famously argued that judges should be but ‘a
mouthpiece of law’.2 Now, even though this is clearly an exaggeration in
the reality of civil law, it seems to encapsulate some of the basic legal
mentality concerning the role of a judge in civil law.
Adaptation to the environment and the gradual change of permanent
features seem to be interrelated. In the long run changes in the social
environment lead sooner or later to the alteration of the permanent
features of law in a series of events, which on the whole is not controlled
by anyone or any conscious actor. European integration has, for example,
resulted in a situation where in the UK legal thinking that is against the
common law tradition and supports the separation of public law and
private law has gained ground. The role courts play as the creator of
legal rules has also clearly diminished in England over the past 100
years. Partly the pressure for change has been endogenous (internal
environment), like the expansion of the public sector and statutory law,
but partly it is due to the unintentional integration process (external
environment). But even here we can detect evolution because the
systematics of classical civil law legal has gradually converged with the
systematics of English law and the systematics of EU law seems to
continue to be some kind of a hybrid between the common law and civil
law models.
Adaptation to the environment can also occasionally have taken place
not voluntarily but because of external coercion. In the world of law
colonialism has had special significance. By means of colonialism

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Western countries introduced by force their own legal traditions and
methods in numerous places in the world. For example, in Africa
European law was introduced in several forms: the French version,
Belgian version, English common law version and the Spanish,
Portuguese or Roman-Dutch (Rooms-Hollands recht) version. The local
customary law was overtaken or supplanted by the new imported law,
and local customary law was applied only in exceptional cases. This
situation left behind by colonialism legal-culturally still largely prevails,
because law of European origin seems to form a yardstick for the local
customary law: these days, local legal customs are being revived in many
African States, but the resurrected customary law is examined and
rediscovered through European legal-cultural spectacles.
However, the fact that hybrid law is handled and understood with
more respect than before has changed the intellectual atmosphere more
generally too: the aim towards pure law now enjoys considerably less
popularity than it did before. It is easy to see that an interest in today’s
legal hybridity or legal pluralism has become very popular in
comparative law research, but it is not actually a new phenomenon at all
as comparatist and legal historian Se á n Patrick Donlan has pointed out:
‘In place of forcing plural and dynamic traditions into discrete, closed
legal families or systems, the complexity of Western legal history
suggests a new, admittedly complex and challenging study of hybridity
and diffusion’.3
The reluctant adoption of Continental systematics in England can be
described as a choice of transplant to the extent that English common
law at the receiving end has inherited one permanent deep feature, ie the
way to perceive and systematise the legal norm material of the donor
system, ie civil law. On the other hand, the evolutionary process of law
has moved in the other direction, too, as integration has introduced to
civil law a central feature of English common law, ie the strengthening
of the position of the highest courts as creating law at the expense of the
legislator’s role.
Common law sometimes proves to be problematic for civil law
lawyers and even geography may be difficult to conceive. From the point
of view of macro-comparison the United Kingdom and England have to
be distinguished. The UK in fact consists of four countries, England,
Wales, Scotland and Northern Ireland. From the point of jurisdiction
three areas are distinguished; they are the system shared by England and
Wales, and the independent systems of Scotland and Northern Ireland,
which have their own legal professions and court systems. Scotland and

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Northern Ireland have naturally received plenty of influence from
English common law, but there are also differences in relation to
England and Wales.
In addition, the Channel Islands, which unlike the UK do not belong to
the European Union, still have their own legal traditions that are based
on the old customary law of the Normans. Jersey, for example, has its
own French-English legal tradition, which is a hybrid. Jersey is in fact a
separate Crown dependency, which is known by the name The Bailiwick
of Jersey. In the Crown dependency of Jersey, the Norman history in
general is strongly visible, which is demonstrated by its minority
language (Jérriais), which is the Jersey version of the Norman language.
There are, though, not many speakers of the tongue because the main
language is English and the second language French.4
The external environment to which the permanent features of law have
adjusted is that of Europeanisation, which has tied the national systems
to an unintentional legal-cultural process of alteration. The process can
be called uncontrollable, because the real aim of integration has not been
to change national legal cultures or cause between them mutual
interaction that in the end results in their permanent features becoming
more and more alike. Importantly, the declared aims have been the
increase of peaceful cooperation, the creation of common markets and
the removal of obstacles to free the mobility of goods, services, labour
and capital. Harmonisation has mainly been of a technical nature, but it
has also included quite significant cultural influence. Today we talk not
only of the economic aims but also of human rights and democracy.
Further, more and more doubt is openly expressed concerning the limits
of legal integration in Europe. Even in a Member State such as the
Netherlands the previous euro-optimism has transformed into a kind of
euro-pragmatism.
Yet, in certain respects, we have started to recall the innate hybridity
or our own national law—much of the legal positivistic dream and the
normative fiction of the centrality of the State has now started to
evaporate. Comparative law’s contribution is to help even native lawyers
to find themselves in the other, ie to find ‘legal’, ‘law’ or ‘organised
normativity’ in places that at first seem foreign, unfamiliar or even
incomprehensible.

II. PROBLEMS IN MACRO-COMPARISON

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Although integration and, more extensively, globalisation have caused
plenty of unification, the long transformation processes in the different
legal systems of the world have on the one hand resulted in the diversity
of legal cultures: the law of indigenous peoples, Islamic law, Chinese
law or German law are admittedly quite alike in parts, but there are also
significant differences between them. Differences are emphasised when
attention is not paid to positive law or the outcomes of precedents (or
equivalent decisions), but instead law beneath the surface is inspected as
living law and cultural phenomena. Contexts of laws differ; hence, laws
tend to be different even if they would appear similar at first glance.
On the other hand, if we go deep enough, we notice that the historical
roots of Western and Islamic culture are the same: at the basis of both
there is a monotheistic religion that was born in the Ancient Middle East
and which is based on the Book, which is regarded as holy, the doctrinal
development of which has been promoted by classical Greek philosophy
and scientific thinking. From the point of evolution the
desynchronisation of social and economic development stands out if we
focus on Islamic and Western legal cultures. Because of this, the
different versions of Islamic law in different countries and the different
versions of Western law in different countries seem to exist in different
periods formulated by the special quality of their own cultural and social
frameworks. Crucially, it is easier to grasp hybridity in legal systems
other than one’s own.
It is easy to observe the variety of legal cultures when the differences
between English common law, the German legal culture or the legal
culture of Nordic countries are compared in regard to their reaction to the
role of courts as creators of legally binding norms. The most adverse
attitude to judges as creators of law prevails in Nordic countries, and
Germany is somewhere between England and the Nordic countries. Ever
since the (French) Revolution, France has been suspicious of the creation
of law by the courts, but in the twenty-first century the legal-cultural
attitude has been gradually changing.
It has also to be observed that differences in the recipient systems
result in differences even when the influences assumed are identical—
processes speak for interaction and change, but it is futile to predict any
actual end of history in the field of legal modification because the
versatility of legal cultures is so obvious. This is also due to legal
mutation, which ensures that even exactly identical external influences
(such as the European Convention on Human Rights, for instance) have
different ramifications in different legal cultures—systems operate in

288
different ways. For example, a human rights obligation that can be
carried out without a problem in Finland can cause unpredictable
consequences in the legal systems of, say, Belarus or Turkey. When
borrowed elsewhere, American plea-bargaining is different from what it
is in the United States.
So, it seems that it is possible to talk about the macro-level change of
law on a general level by resorting to evolutionary concepts. The well-
known American comparatist of the early-twentieth century John Henry
Wigmore (1863–1943) distinguished between three different
comparative approaches to law. Nomoscopy described foreign legal
systems and nomothetics analysed the strong and weak points of
systems. Nomogenetics paid attention to the chronological development
and the influences the systems had on each other. Wigmore applied his
nomogenetic approach to the idea of evolution: according to it systems
influence each other, which again results in the creation of interaction
between systems.5
Long-lasting interaction, on the other hand, formulates systems so that
they acquire features that they have not had before. In interaction
influences are given and received. It is crucial to understand that even
those legal cultures (mostly Western) that regard themselves as donors
also implicitly receive. This can be seen, for example, in the English
common law where the UK became the first non-Muslim country to sell
bonds that can be bought by Islamic investors. This was done in order to
encourage large-scale Muslim investment into the UK. The legal
outcome is a Shari’ a-compliant finance: this is clearly peaceful
interaction between different legal cultures.

A. Changing of Law

Macro-comparison has been, in certain respects, close to botany in its

classification and creation of taxonomies of the legal systems and legal
cultures of the world. The idea of comparative law has been to produce a
picture of what kind of systems there are and what are their core features.
An answer has been searched for to the question of whether on the basis
of their core features they can be classified into various bigger groups
(legal families or legal cultures). This type of operation is sensible and
needed, but it is frequently confronted by the main problem: mutations
that are going on make the perception of global law challenging; the field
studied is in slow motion like a slowly flowing legal magma of rules,
institutions, customs and doctrines. Not even the most conservative legal

289
cultures are stable—even though they may themselves think that their
most fundamental feature is immutability.
Islamic law is seen as a basic example of conservatism. However, for example in
2009 in the West Bank, Palestinians nominated two female qâdi judges. Also in
Indonesia there are female Muslim judges with full legal authority. On the other
hand, in Malaysia the authority of female Muslim judges is restricted to divorce and
criminal cases. For its part, the common law experienced a big cultural change when
in the autumn of 2009 the new Supreme Court of the United Kingdom, which was
organised according to Continental models, started its work. The new court replaced
the judicial function previously performed by the House of Lords (ie the Appellate
Committee of the House of Lords), and the judges are no longer Lords but Justices of
the Supreme Court. This legal evolution tells about changes in the common law legal
mentality because it was felt that there needed—in response to pressure from the
European Court of Human Rights—to be a sharper distinction between the courts and
the Parliament.

Evolution and macro-comparison are not completely compatible. It is

difficult to include in the same theoretical framework both the slow
motion of the legal-cultural magma and strict classifications. Any
taxonomy is rigid and static while legal evolution makes the system
being classified dynamic. There are at least two answers to the problem.
On the one hand, attempts are made to keep the list of macro-constructs
up-to-date by making systematic observations and correcting
classifications from time to time. On the other hand, any classification
concentrates only on the essential and dominating features. By
concentrating on structures and legal-cultural basic features, macro-
constructs become less prone to change. For example, Japan and Turkey
demonstrate well the significance of the upkeep of the list of categories.
While Japan at the beginning of the twentieth century was classified as a member of
the Asian legal family, by the 1950s it was seen partly as a member of the Western
legal family; one which had strong Asian features such as the willingness to
compromise and a very small relative number of professional jurists. By the 1970s
and 1980s several fields of law were quite prepared to consider that Japan was
largely Westernised. Today, the law of Japan is classified as Asian mainly on
geographical grounds. In most evaluations Japanese law is considered almost a
Western system that mostly follows the Continental European model, which however
has influence of American law in places and some patches that are still described as
being in accordance with the Asian legal culture.

Another example of evolution and mutation involved in the legal family thinking is
Turkey, which to begin with as an Ottoman State (from the fourteenth century
onwards) was in the sphere of Islamic law but started to undergo a transformation in

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the nineteenth century due to the weakening of the State. One of the areas that was
reformed was the legal system, which was Westernised in accordance with European
models. Later, in the 1920s and 1930s when the Ottoman State had collapsed and
modern Turkey was born from its ruins, law was more strongly modernised
according to European models, and as part of the reform policy, attempts were made
to completely destroy the old model. The most curious and massive reformation was
the almost word-for-word copying of the Swiss Civil Code for Turkey by simply
translating it straight into Turkish (the Western alphabet had replaced the Arabic
one). In Turkey, evolution has, however, not resulted in a situation where it would be
classified as a ‘full’ member of the Western legal family. However, when we turn our
eyes from written law (what it is supposed to be) towards legal practices and legal
culture (what it actually is in an empirical sense), we can observe that dysfunctional
features keep slowing down the mutation. In addition, there are major political forces
in Turkey wishing to turn the direction of legal evolution—partly—back towards the
Islamic legal culture.

The cases of Japan and Turkey at least prove how difficult it is to classify
whole systems—they are continuously in slow motion. On the other
hand, as was indicated by the collapse of socialism at the beginning of
the 1990s, radical changes in the environment are also important and can
lead to significant change. Socialist law, which earlier has been one of
the core families of global law, became almost extinct. States like Cuba,
Vietnam and China are little by little actually giving up many such ideas
that were valid in socialist law (eg private ownership of the means of
production not being allowed). On the other hand, China has by no
means in all sectors of its law given up some basic ideas of socialist law,
as the one-party system and limited political rights prove. The general
picture of Chinese law is in the eyes of comparative law legal-culturally
a system of mixed law or at least a mixture of laws. And, as such a
hybrid it is a legal culture that is very difficult to place into any of the old
categories of macro-constructs.

III. LIMITS OF LEGAL EVOLUTION?

It seems that it is possible to describe or at least attempt to understand
the global change of law by means of evolutionary concepts. It seems
obvious that this can be done as far as the previous cultural and racial
discrimination is clearly renounced. The evolutionary perception and
understanding of the change in the legal systems and cultures of the
world seems in fact pretty workable. Problems, however, start to
accumulate if the aim is to apply the evolutionary concepts in a very

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exact and detailed way to the change in the world of law. It is obvious
that the comparatist’s inexact study methods and grounds used for
classification are not very precise and there is serious disagreement about
them—instead of a uniform taxonomy, macro-comparison offers a fuzzy
picture of the main features and changes of global law.
On the other hand, it is worth noting that even a fuzzy picture is better
than no picture. It is quite close to the picture about which philosopher
Gottfried Wilhelm Leibniz (1646–1716) dreamt when he wrote in the
seventeenth century about the legal map of the world, which he called in
Latin theatrum legale mundi.6 It is telling that not even Leibniz managed
to finish his project to compose a map of the entire global law—and in
his time the world of law was certainly not quite as complicated as it is
today. Accordingly, it is not easy to describe in a sensible way by means
of any theoretical concepts how complete legal systems and legal
cultures change.
Evolutionary theory provides certain tools for perceiving law on a
global level more successfully than legal theories (legal realism, legal
positivism, natural law theory) that are attached to individual legal
systems or cultures: they are troubled by permanent geographic shackles
because, to start with, they have been connected with a particular legal
system. The advantage of the evolutionary theory is that it is neutral in
relation to macro-level change: it is possible by means of it to
dispassionately register both the transformation of law into something
more religious and more professional without involving subjective
evaluations of the scholar on the good–bad axis. Perhaps this is its
toughest problem from the perspective of the Western study of law,
which is committed to liberalism, humanism and human rights. It is
difficult for the Western comparatist to have a neutral attitude to
opposition inflicted on their own deep-seated legal values even though
such difficulties must not prevent the comparatist from studying law that
radically differs from their own law.
It is essential to take legal evolution into consideration although we
cannot speak of any abandonment of legal history. After the Cold War
had ended American historian Francis Fukuyama sketched the end of
history in his famous argument:
What we may be witnessing is not just the end of the Cold War, or the passing of a
particular period of post-war history, but the end of history as such: that is, the end
point of mankind’s ideological evolution and the universalisation of Western liberal
democracy as the final form of human government.7

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In other words: everything of significance would have been done
already. The development of the legal history of humankind and the
battle between legal ideologies (socialist v middle-class/bourgeois,
secular v religious, professional v amateur) would have ended in the
victory of liberal democracy, ie civil law and common law. These visions
were clearly premature.
The developments of the twenty-first century have considerably
reduced the popularity enjoyed by Fukuyama’s thesis although Western
law has spread efficiently all over the world. All the same, the result has
not been unity but different local applications and legal pluralism, ie
novel forms of legal hybridity have emerged. Islamic law has
experienced a new coming, and States have been forced to acknowledge
the existence of regions (eg Scotland, Catalonia and Quebec) and
indigenous peoples and their legal traditions (eg American Indian
peoples, the Maori, the Sámi, aboriginals, the Inuit etc). Moreover, it has
been noted that the legal relations between indigenous peoples and States
have developed towards an asymmetric and pluralistic model which has
eroded the idea of a unitary State and the exclusiveness of positive law.8

1 The underlying ideas here are natural selection and adaptation. See eg DJ Futuyma,
Evolution, 2nd edn (Sunderland MA, Sinauer Associates, 2009) ch 11.
2 Mais les juges de la nation ne sont, comme nous avons dit, que la bouche qui
prononce les paroles de la loi, ch VI. C Montesquieu, De l’Esprit des Lois (1748) bk
XI.
3 SP Donlan, ‘Remembering: Legal Hybridity and Legal History’ (2011) 2
Comparative Law Review 1, 23.
4 See eg TVR Hanson, ‘Comparative Law in Action: the Jersey Law of Contract’
(2005) 16 Stellenbosch Law Review 194.
5 See JH Wigmore, A Panorama of the World’s Legal Systems (Saint Paul, West
Publishing, 1928) 1120–21. Deriving first part of the terms nomo from the Greek vóμoς
for ‘law’.
6 GW Leibniz, Nova Methodus discendae docendaeque Jurisprudentiae (1667). In
English ‘A New Method for Learning and Teaching Jurisprudence’.
7 F Fukuyama, ‘The End of History’ (1989) 16 The National Interest 3.
8 See J Uimonen, From Unitary State to Plural Asymmetric State (Rovaniemi,
Lapland University Press, 2014).

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11

Groupings, Classifications, Categories

UP UNTIL THE last few years, mainstream textbooks on comparative

law have been constructed in a typical form: first, some theory and
methodology, followed by classification where the big legal families or
legal systems of the world are with varying volume descriptively
introduced, and finally certain private law issues might be discussed.
Typically these classifications have mainly been constructed for private
law. In addition, they have earlier been characterised by an emphasis that
is clearly Western, which for example Bogdan has defended with
practical reasons by saying that ‘in his opinion it is pedagogically
justifiable’.1 The Western ethnocentrism has deep roots in the
comparative law pedigree as an academic field.
In the work by Arminjon, Nolde and Wolff, French, German, Scandinavian, English,
Russian, Islamic and Hindu legal families were introduced.2 In the work Les Grands
systèmes de droit contemporains (running to more than 10 editions) by the French
René David, the Romano-Germanic (civil law), common law and socialist families
were introduced as genuine legal groups. As other, non-Western legal systems David
mentioned Islamic, Hindu and Jewish law as well as the law of the Far East, Africa
and Madagascar. Germans Zweigert and Kötz presented in their influential
mainstream work Einführung in die Rechtsvergleichung Roman, German, Nordic,
common law and socialist legal families as well as the Far Eastern and Islamic
systems and Hindu law.3

In more recent books, for example, Peter de Cruz has continued the tradition in his
textbook Comparative Law in a Changing World, which naturally contains some
updated ideas and struggles to fit in also European Union law.4 Moreover, Annuario
di diritto comparato 2013 entitled ‘Diritto comparato e sistemologia: le nuove sfide’
(‘Comparative Law and Systemology: New Challenges’) offers articles in several

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languages concerning the new challenges of systematising legal systems and/or legal
cultures.5

The fact that private law has been stressed in the classifications,
groupings and categorisations is not necessarily an insurmountable
problem. Even these kinds of classifications are not useless because they
describe not only private law but also general legal-cultural features (eg
legal mentality manifested in private law) that have created the context
where the entire legal system operates. Even if the public law of an
individual system had features which cannot be regarded as being part of
the main classification of the whole legal system, it does not mean that
from the point of view of public law the classification would have
necessarily been different. It is a question of legal culture and tradition
that is on a different abstraction level compared to legal systematics. For
example, in several European countries legal thinking has historically
developed in the various sectors of private law, and public law has been
included later on. In other words, in many cases public law is in a legal-
cultural sense rather like the little sister of the much older private law. In
macro-comparison the question has always been of the differentiation
made between macro-level factors, which has meant that details have
inevitably remained in the background (see chapter nine, sections II and
III). Macro-comparison places all details, whether they be private law or
public law details, in a less crucial role and concentrates on large-scale
generalisations.
Since there are several kinds of classifications of legal families, legal
cultures and legal traditions, it is justifiable to ask how one can grasp the
entity of macro-constructs. To begin with, one will notice that
classification suggestions are in fact quite similar and there is
surprisingly little variation. Similarity is not that surprising because
macro-constructs have been built by looking for the typical and
permanent characteristics of legal systems. That is why they are not
overtly vulnerable to historical changes and changing legislation.
In spite of their similarity, it is difficult to estimate the superiority of
individual classification suggestions, because they have been constructed
from somewhat different starting points and at different times. In
connection with different classifications it is important to know the
criteria on the basis of which the suggestion has been built. At least two
major different classification criteria can be distinguished. In the first
type, attention is paid to the technique of legal systems and in the other

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to more comprehensive factors. It is not, however, possible to keep these
two approaches completely apart.

I. TECHNICAL CRITERIA
The technical classification criteria for macro-constructs are related to
the formal characteristics of the legal system. In other words, these are
distinctively Western criteria. When grounds like these are used for
differentiation and demarcation, often the bonds that legal systems have
with the cultures and social orders to which they belong are more or less
ignored. Legal practices and legal-cultural factors remain as the basis of
formal law. The use of technical differentiation criteria presumes
commitment of some degree to the formal view of law (legal positivism).
The use of technical criteria is interesting mainly from the point of view
of comparative law with practical or non-academic aims. The judge, the
legislator or the lawyer civil servant is seldom interested in legal families
or cultures as such or the more general legal-cultural factors by means of
which the similarities and differences could be first understood and later
explained. Explanatory understanding and socio-legal engineering based
on practical needs are founded on a different way of thinking. The same
applies to the unravelling of the substance of foreign law in the court in a
case where there is a difference between the laws of at least two
jurisdictions, so that the outcome depends on which jurisdiction’s laws
will be used in resolving the legal issues at hand.
Attention can be paid to the technique in which legal rules are
expressed, ie to the fact of whether the rules are written or unwritten.
More specifically it is a question of whether there is comprehensive
official written information about the living law, which means that, for
example, any system of an English origin tends to be based on judicial
precedents (judge-made law) whereas systems with Continental
European roots tend to be based on large-scale systematic codifications
(positive law). Moreover, the systems of both written and unwritten law
can be placed in different legal families (eg a Western legal family with
written documentation and, say, a traditional African law that has been
orally transmitted).
It is likely that pure types, which belong only to the systems of either
written or unwritten law, are quite rare because there are elements of
both in most legal systems. For instance, the English law of today has a
massive amount of statutory law even though the cultural attitude

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towards such legal material is that it is regarded roughly as the ‘raw
material of law’; in other words, it is the job of the courts to carve out the
actual legal content of these ‘paper rules’. Now, if the aim is macro-
classification, the decisive factor is which one of the features can be
considered more characteristic of the system in question. Also the point
of view from which the classification is made has an effect. Occasionally
classifications made on the basis of private law and public law may have
a different end-result.
For example, the system of German civil law can be called Germanic, but if the
criterion is the control method of constitutionality the German system belongs to the
same group as the USA. India, on the other hand, is mainly included in the sphere of
common law, but from the point of view of certain core sectors it represents Hindu
law and Islamic law. With regard to constitutional law, India could however be
considered a Continental system although in its legal culture there is no civil law
heritage that would be based on historical contacts or adoption. English language has
a significant position not only as lingua franca but also as the language of law. Japan
has German-style civil and criminal law but a quite American constitutional system,
which, however, works quite differently from the American constitutional culture. In
fact, this list could go on and on.

Another technical distinguishing criterion (closely related to the previous

one) concerns the sources of law and their use. It is a question of how
different sources of law are recognised and how they are used as part of
legal argumentation. David already used as one of his criteria the sources
of law, statutory law, precedents of certain higher courts or something
else (eg religion). David was specifically interested in authority, ie where
legal rules originated from. Paradigmatic classification that is built on
this kind of classification of legal sources is carried out between
statutory law (civil law) systems and systems that rely on the precedents
made by courts. These are complemented by systems with a religious
background such as Islamic law where the ultimate, and in the legal-
cultural sense the most essential, source of law is the Koran.
The source of law refers generally to the normative source material from which the
organs applying law are seeking norms for decision-making in judgments. In
comparative law, the concept source of law refers to statements in the descriptive
doctrine of the sources of law on what the legal weight of different sources of law
have in the sphere of a certain legal system. On the other hand, within legal theory
and the doctrinal study of law normative ideas are presented of what the weight and
capacity of different sources of law ought to be. Owing to the macro-nature of the
classification of legal families and legal cultures, features of the lists of legal sources
belonging to different systems are examined on a rather general level in comparative

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law. This leads to a rather fuzzy picture of those legal systems that are included in the
groupings, classifications and taxonomies.

The descriptive distinctions concerning the use and recognition of the

sources of law are essential criteria for distinction although in practice
legal argumentation generally operates by means of statutory law,
established customs and authoritative precedents. It is a question of what
weight and order of priority they are considered to have in different
systems. For example, the English common law system contains Acts of
Parliament, ie statutory law and actual case law with precedential value.
Case law here refers to the method (so-called distinguishing technique)
that is used in the application of norms that have been created in
previous legal praxis in connection with new cases, ie to a system that
historically originates in England. This demonstrates how quickly one,
by using technical grounds, can get to the realm of legal history. In fact,
the explanations concerning the reasons of why legal systems are as they
are, are always historical. Accordingly, nothing else but history explains
why Australia, Canada or New Zealand belong to the common law legal
family and nothing else but history explains why later Roman law (ius
commune) had relatively little impact on the legal systems of Nordic
countries. Nordic countries are legal-culturally the middle ground: the
formal doctrine of the sources of law emphasise statutory law, but in the
practical legal life precedents of higher courts have a central role in the
system. In many systems where the doctrine of stare decisis is not
officially embraced, important judgments by superior courts have in fact
(cf Ehrlich’s living law) at least a persuasive force as a source of law.

II. GENERAL REQUIREMENTS

The weakness in most attempts to classify legal systems has been
concentration on only one or two key factors on the basis of which the
whole classification has been drawn. The advantage of such a
classification is its unambiguousness and systematic clarity but the lack
of a legal-cultural ‘living law’ view is its weakness. In many systems
there are simultaneously several features, and it is not sensible to group
them only on the basis of one criterion and one field of law. It is a
question of the legal-culturally dominating features of the systems, as
has above become clear.

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Instead of such separate factors, some comparative law theorists like
Zweigert and Kötz wanted to bring up more extensive general concepts,
such as the style of legal systems by means of which classification can be
performed more fittingly.6 The style can be determined by means of
legal-culturally typical factors that are related to the sources of law,
interpretation of law and legal argumentation as well as the education for
legal occupations and the relation of the legal profession to other learned
professions.
It is difficult to judge from any individual sources what is the characteristic style of
an entire system. The style is closely connected to legal culture and legal mentality.
One example is the way in which the thinking of a jurist and a judge is sketched in
legal disciplines. Continental thinking has been compared to mathematics, logics and
geometry. Within the common law, thinking has been compared to visual thinking, ie
to a situation where the event of application is perceived in the form of a photograph
in which facts and the event of application are emphasised instead of the
interpretative logic of written rules. It is of course a question of fuzzy large-scale
metaphors, but from the point of macro-classification they describe the basic legal-
cultural differences in legal thinking. In a similar way, the legal expert can in Islamic
law be conceived as a qâdi judge with religious training, while in the West law is
perceived with different legal-cultural links.

The comparatist who aims at systematic macro classification must,

according to the legal style approach, try to find the characteristic style
of each legal system that distinguishes it from other legal systems or
organised large-scale normativities. The problem is that it is very
difficult to say which features are characteristic of each legal system.
This is particularly difficult in connection with the comparatist’s own
legal system because they have been epistemically integrated with it:
seen from within, many factors that the national jurist finds self-evident
can be all but self-evident when seen from the outside. Jurists all over the
world have in a surprisingly profound way been conditioned legal-
cognitively with their very own law and its implicit legal-cultural basic
assumptions.
It is probably easier to notice the stylistic features typical of foreign
legal systems because the comparatist looks at the system through the
eyes of an outsider: a Nordic jurist notices the existence of the jury in the
common law criminal trial; the German jurist may wonder about the
English wigs while simultaneously wondering about the lack of the
cloak/robe in the Nordic countries; the Nordic jurist again is amazed by
the loudness of a Greek Court of First Instance (Greek Πρωτοδικείο) or
the rituality of a German Constitutional Court etc. The comparatist

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examining foreign law can be (legally and culturally) surprised in a way
that is not possible within the sphere of their own legal system because
of the epistemic embedding; of course, there are even internal surprises
but they are very seldom of an ‘eye-opening’ nature.
In a way being an outsider is a drawback. On the other hand, when
classification of legal systems according to their style is in question,
being an outsider is actually a prerequisite for being able to detect the
special characteristics of style. This may sound, at first, paradoxical but
it is not really the case. Namely, familiarity does not arouse questions
and objections at an intensity that is anywhere close to that aroused by
something new and strange. This is related to the pedagogical power of
comparative law that is based on a (conscious) epistemic exit from
within one’s own legal limits. A Nordic jurist might be unaware of the
significance of the notary institution in Central Europe in the same way
as the Continental European jurist is surprised to see that it is lacking in
the Nordic countries.
It is not, however, possible to interpret just any factor as a factor of
style; they concern important and typical features. Several stylistically
significant matters can be detected but at least the following can be
mentioned as—partly overlapping—factors:

General criteria in classifying

1. Historical development
2. Nature of legal thinking
3. Social and legal ideology
4. Factors related to the cultural sphere

III. HISTORY-RELATED FACTORS

What has been said earlier in this book seems like a clear indication of
the significance of history to a comparatist who is serious about the
comparative endeavour. When it is assessed whether a legal system or
other large-scale organised normativity belongs to a certain legal family
or culture, historical factors constitute one important element on the
basis of which it is possible to evaluate the position of the legal system in
question in the genealogy of legal families. One of the central
characteristics influencing the style of a legal system is its historical
development; the style is formed over the course of history.

300
For example, in the fact that common law countries belong to the
common law family is only explained by historical factors. The fact that
such different countries as Australia, Ghana, Great Britain, India, Kenya,
Malaysia, New Zealand, Nigeria, Pakistan, Singapore, South Africa and
Zambia belong to the common law family is only explained by the
colonial history of the British Empire. There is no other explanatory
factor (eg climate, culture, language or geography) for the considerable
similarity of the legal systems of these countries. Plain and simple, the
similarities in style are based on a common history.
However, in connection with Continental legal systems historical
factors do not offer one indisputable cause for classification. It is in fact
not clear if we can speak of one big Continental legal family (civil law)
or if we should further distinguish different sub-groups (Romano,
Germanic and Nordic). When grounds for legal family classification are
sought in history, it has to be understood that the purpose is not to
present sophisticated legal historical explanations. This is not as simple
as it may sound. James Gordley describes the situation well:
The mistake of legal historians is to assume that the law of a given time and place
can be studied without regard to how the law has developed elsewhere. The
corresponding mistake for comparative lawyers is to assume that the law of each
modern jurisdiction forms a coherent system rather than an amalgam of solutions
developed over time.7

The aim is to look for explanatory factors to explain features that are
characteristic of legal systems (distinctive characteristics of legal
thinking) and that are found in a certain specific legal system. The aim is
also to answer the questions of why within this legal system certain
things are taken for granted, why the branch of legal systematics is what
it is or why there are certain distinctive institutions not found in other
legal families. For example: why are there are separate administrative
courts in Finland and Sweden according to the Continental model but in
Denmark and Norway this is not the case even though all these systems
recognise the distinction between private law and public law etc?
By means of legal history it is also possible to understand and explain
why certain solution models of foreign law become established in
another legal system while others do not. So, when we think about the
classification, we must observe that most explanatory factor types are
always historical in some respect. However, this does not mean that they
are legal-culturally easy to grasp or easily explained.

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It is very difficult for a Western comparatist to explain and understand
Islamic law. The explanation, according to which this is due to the fact
that Islamic law is based on religious factors and Western law on
professional factors, remains unsettled: religious law is different because
it is religious. It might be that differences are not so great because in
both legal cultures there are norms and principles, a specific
understanding of the order of priority (what happens when norms
collide) and application of norms and legal study. If explanations are
sought from below the surface, it can be observed that actual legal
differences are also based on different legal-theoretical basic
assumptions of law and the attitude to the individual and society. In the
West, law has traditionally been associated with national States with their
own geographical areas and sovereignties, while in the Islamic world law
is dominated by a personal dimension, and for example the applicable
norms of family law are not defined by the law of the State but by
religion and often even by the specific sector of religion to which the
person in question belongs.
The classical aim of Western law is to be the same for all people and
to neutralise the personal dimension while in Islamic law the choice of
private legal norms applied to the person in certain situations depends on
their religion. It is difficult to reconcile basic approaches that differ
seemingly so radically, but of course there is no need for the comparatist
to even try. However, the comparatist should be aware of these factors
because they no doubt influence comparative study. It is a question of the
basic nature of legal thinking and, to be sure, there can be no assumption
of similarity here. Yet, this does not exclude that there may be
similarities.

IV. NATURE OF LEGAL THINKING (LEGAL

MENTALITY)
The characteristic basic nature of legal thinking is of significance when
stylistic features of an individual legal system are evaluated, such as
what is a rule of law or a source of law. Civil law thinking is
characterised by an attempt to use abstract legal norms, an attempt to
divide the legal system into different exactly defined fields of law and
the tendency to filter the evaluation of the reality at hand through legal
(often logical only apparently) concepts —the reality is in such cases
evaluated via a network of legal concepts (deductive thinking). The

302
approach is not exactly spontaneous or focused on facts but instead
predetermined and focused on norms: reality is seen through norms and
the legal mind works from general concepts towards facts.
In civil law thinking, legal rules are considered to be general abstract
normative rules of behaviour that are situated on a slightly different level
from the application of law. In the same way the national legal
disciplines and doctrinal study of law in particular are considered to be
situated on a different abstraction level from that of practical legal
decision-making and application. Furthermore, in civil law the idea of a
hierarchy is respected to a great extent, which means that the constitution
has the top position in the hierarchy. In civil law thinking the constitution
(Constitutional Act as German Grundgesetz or Swedish grundlag) that is
above ordinary written laws (parliamentary Acts) is considered central
for the whole legal system while, for example, in the UK, Israel and New
Zealand this is not the case. Apart from the United States, the common
law has up till the last few years avoided strictly defined hierarchies of
legal norms. Notwithstanding, the Human Rights Act that came into
force in 2000 and the Supreme Court that started work in 2009 have
strengthened the features of internal hierarchy in Great Britain.
In common law thinking, the concept of a legal rule continues to differ
from the view of the Continental tradition in spite of the tendency to
converge. Formation of legal rules is considered to be due to the legal
practice, ie precedents given by higher courts in their decisions. Legal
rules are considered to represent the same level of abstraction as court
decisions. In the civil law system the basis of the legal system is
considered to consist of legislation and the abstract rules included in it.
In the common law, on the other hand, the basis of the legal system is
considered to be in the specification of the factual state of the court
decisions on the actual legal problem and in the decisive grounds for
decision (ratio decidendi). In connection to such parts of judgments that
are of a secondary nature (obiter dictum), the intention is not to present
an actual common law rule but only to make a passing remark on the
matter.8 Finding the ratio is not easy because there is no specific way to
present it or no specific place for it in the decision, and at the moment of
decision-making there is no knowledge of the future potential ratio
decidendi effect. In short, common law seems to think inductively, ie it
conceives norms through facts and not the other way round. This kind of
‘common law mind’ developed rather early in England consisting of
various things forged by historical events.

303
When we speak of law on the macro-level, it is easy to make
generalisations, to refer to civil law or Islamic law, for example. When
non-Western systems are compared, such generalisation seems to be
justified if seen from the Western legal sphere. On the other hand, if the
object of study is European law, it is worth noting that there are also
differences between Romanic law and Germanic law although at their
basis is a shared legal history in the form of ius commune. The
differences are clearly seen in the big and legal-culturally significant
civil law codifications of Germany and France.

A. Differences Between the Basic Codifications of Continental Civil

Law

In France the preparation of statutory law ordered by Napoleon did not

only rely on ius commune, but also on the material on the application of
law that was created during the ancien régime and on other legal
traditions, for example those customary law traditions that were born out
of commercial practice. Before the Great Revolution, France was
actually divided legally: in Northern parts there was great influence of
droit coutumier whereas in Southern parts the written Roman-influenced
law (French droit écrit) prevailed. But there is more to it, since before
the Revolution there were in the area of France several regional
customary law norms such as coutume de Normandie, coutume
d’Orleans and the best-known coutume de Paris that were applied also
outside their own region.9 In Germany, on the other hand, the drafters of
codifications were permeated by Pandectism and the nineteenth-century
German law, and unlike in France the preparation of the Bürgerliches
Gesetzesbuch (BGB) did not rely on the unwritten established customary
norms. In the German area the Pandectist legal science in a way replaced
customary law because Pandectic ideas and doctrines were applied in
German legal practice.10 It is owing to Pandectism that in Germany the
practice preceding civil law legal family codifications was more
consistent than the situation in France before the code civil.
The end-result was two different codifications on the basis of which
we can still make the difference between these two basic members of
civil law. The systematic placement of commercial law was legal-
technically one of the key distinguishing factors.
According to the codification strategy selected in France code civil /Code Napoleon
(1804) consisted of three books. It was meant to be all-inclusive so that the academic

304
legal discipline and judge-made law were made useless once and for [Link]
law was included in the codification on purpose. The 2281 articles that the
codifications contained were divided into several books/sections, subsections and
articles. There is no separate general part in the codification, and ius commune had a
commanding role, but the significance of the customary law (droit coutumier) of
France that had preceded the codification was more clearly seen. The codification
was divided into three main books, which are: I the Book of Persons, II the Book of
Property and III the Book of the Different Modes of Acquiring Property.

According to the strategy that was selected in Germany, the BGB (1900) was to
contain five books, and the codification was not to include commercial law. The aim
was not so clearly, as was the case in France, to replace the science of law (ie legal
doctrine). Instead, as extensive and systematic a codification as possible was the aim.
The structure of sections and subsections in the BGB does not consist of as many
phases as the French code civil. There is also a separate general part that is not
included in the French codification. The significance of the ius commune tradition is
clearly visible in the work as well as the attempt to return to genuine (as it was
understood) Roman law. The Roman character was introduced into the codification
through the Pandectic legal science (Pandektenwissenschaft), ie in the form that
emphasised conceptual logical thinking and systematicalness. The German
codification consists of: I the General Part, II Law of obligations, III Property law, IV
Family law and V Inheritance law. The codification contains 2385 sections.

Both codifications are the result of the nineteenth-century thinking and

the ideology of liberalism is pronounced (particularly the freedom of
contract); they contain lots of cross-references, legal definitions, a strong
conceptual nature and rigidness. Although they only apply in private law,
their legal-cultural significance is stronger: they can be seen as
monuments of the legal thinking and legal mentality of their own legal
cultures. The code civil reflects the advantage that the legislator has over
courts, and the regulation is in a more straightforward way than the
BGB’s downright hostility to judge-made law: Article 5 specifically
prohibits making decisions on the basis of general—unregulated—
principles (‘Il est défendu aux juges de prononcer par voie de disposition
generale et réglementaire sur les causes qui leur sont soumises’). The
way in which codifications are structured is one method by which
systems within Continental law can be classified into Roman or
Germanic legal culture. It is not, however, the only way because often
there are both elements in the system, as for example in Italy and also the
Netherlands and other systems, which belong to civil law.
In Italy the model for written civil legislation has been French regulations in
particular, but law with a French influence has been interpreted by means of the
doctrinal study of law that has been subjected—comparatively speaking—to a strong

305
German influence. At the start of the twentieth century it was a question of a kind of
a hybrid between French positive law and German Pandectist legal science. The civil
codification of 1865 followed closely the French model while in the 1942 civil
codification a clear influence of German legal thinking is to be seen.

Similar internal civil law hybridity can be seen in the Netherlands where the 1992
civil codification (Burgerlijk Wetboek) is original in structure but in regard to its legal
style much closer to the German abstract model than to French code civil. The
previous civil codification of the Netherlands from 1838 had considerably more code
civil influence. Burgerlijk Wetboek’s structure is as following: (1) Personen-en
familierecht (Individual and Family); (2) Rechtspersonen (Dutch Legal Persons); (3)
Vermogensrecht in het algemeen (Assets); (4) Erfrecht (Succession); (5) Zakelijke
rechten (Property); (6) Algemeen gedeelte van het verbintenissenrecht (Contracts and
Obligations; (7) Bijzondere overeenkomsten (Specific Contracts I); (7A) Bijzondere
overeenkomsten; vervolg (Specific Contracts II); (8) Verkeersmiddelen en vervoer
(Resources and Transport); (10) Internationaal privaatrecht (Private International
Law). Book 9, Intellectual property (De rechten op voortbrengselen van de
menselijke geest) is still missing.

And, there are similar modern hybrid dimensions also elsewhere, in Lithuania for
example, where the 2001 civil codification (Civilinis Kodeksas) combines German
and French civil law. There are legal-cultural dimensions of the same type in Spain
as well.

Occasionally the characteristic nature of legal thinking can also cause

difficulties in the classification of legal systems. Problems are
encountered when the written law system differs significantly from the
legal reality prevailing in practice. For example, some of the legal
systems of the Far East and Africa have on the level of written law a
very Western system, but the practical level of law and law in books can
have significant differences. Living law tends to complicate things. This
is precisely why the inquisitive scope of a comparatist cannot be too
formal. The comparatist must view legal systems also with the eyes of a
legal sociologist or anthropologist and not simply compare rules that are
on paper only. From the point of view of a practical comparatist it might
be of some importance to compare rules that are on paper only,
particularly if it is a question of routine-like extension of the knowledge
base in the drafting of legislation. On the other hand, when customary
law or the unwritten law of indigenous peoples is examined,
ethnographic and anthropological approaches are virtually the only ones
that it is in general possible to apply because the norms have probably
never been in a written form.

306
When differences and similarities are studied and attempts are made to
understand and explain them, it is not possible to rely on rules that are
on paper only because mere legal texts do not normally reveal their
context. Even though it is difficult, the comparatist should try to grasp
the ‘living law’. And, the rules, institutions and principles under study
should always be placed in their contexts. Attempts have to be made to
perceive legal thinking also at the level of practices and legal-cultural
basic assumptions, ie mentality. In this context mentality refers to
attitudes, assumptions, prejudices, professional discourse and methods
held by lawyers of a country or other large-scale organised human
community. Mentality links also with societal ideologies.

V. FACTORS RELATED TO SOCIETAL IDEOLOGY

The ideological and societal views prevailing in the society of the legal
system also have an effect on its style. In particular the effect of such
factors is seen in systems where the impact of the background ideology
of religion or the political system is embraced. In Muslim countries
certain characteristic stylistic features of their legal systems are
explained by the close connection of these countries to the Islamic
religion and the Holy book Koran, which is regarded as its central source
of law. This is the case in spite of the fact that in the substantive sense
Shari’ a covers a relatively small part of modern law. The Hindu law and
Jewish halakhah law have effects that are of the same type, but which
are possibly more moderate than those of Shari’ a.
The impact of religious and/or ideological factors is usually at its
strongest within certain parts of private law (eg family, inheritance)
while many later developed fields of law (eg administrative law and
constitutional law) may be surprisingly Western in style. It would seem
to be advisable to place the stylistic features into their respective
historical context because at different times the legal style of one and the
same State can vary according to the tempo of the legal-cultural change.
Sweden was a different State before 1809 and after it, while Finland held
onto the old Swedish system (especially constitutional laws and
traditions) for much longer although it formally was an autonomous part
of the Russian Empire (1809–1917).
When for example the legal styles of Turkey are evaluated, different periods have to
be considered as well as the fact that earlier periods have by no means disappeared

307
from the present system; instead, they have overlapped. Legal culture is multilayered
and to a certain extent of a hybrid nature. We might argue that the past is also present
in today’s system. The law of Turkey can be divided into different layers, which are
the period of Islamic law in the Ottoman Empire (1299–1839), the intermingling of
Islamic law and more modern law in the Tanzimat period, ie at the stage of
reorganisation (1839–1923), the period of secularised law (1923–2001) and a period
(2001 –) that slightly rehabilitates certain dimensions of earlier Islamic legal culture
but is mainly Western in nature.11

The influence of socio-ideological views on the style of legal systems, on

the other hand, is clearly seen in countries such as China, Vietnam, North
Korea (as an extreme example) and Cuba where legal solutions of a
socialist type are still carried out. In the Western view the worst part of
the so-called socialist legal systems is considered to be their generally
poor human rights situation. Weaknesses are particularly demonstrated in
the narrowness of traditional freedoms, property rights and political
rights. In the Western legal tradition the freedom of an individual from
interference by governments in matters that are seen to belong to the
sphere of individual freedoms (liberalism) has been emphasised. In any
event, it has been thought in today’s law and development movement
that Western style law is also most efficient in the economic sense.
Paradoxically, it seems that China is doing remarkably well at least in
regard to the economy although it has not abandoned all doctrines of
socialist law.
In the classification of families, ideological factors have a significant
role when the style of legal systems is evaluated in connection with
systems with religious emphasis and of socialist types. The same factors,
however, have much less significance when an attempt is made to divide
Western countries that are culturally relatively homogenous into different
groups. In spite of this, Western industrial countries also have their own
ideological features: Christian ethics, the system of market economics
with strong protection of property rights and constitutionalism. The
capacity of the last two to spread and be adopted has proved to be
globally quite strong on the ideological level. All the same, we can detect
differences between the Protestant North and Catholic South—every so
often they appear, for example in the voting behaviour of the European
Human Rights Court in decisions connected with the family and
children. Catholic and Orthodox Europe is sometimes amazed at the
liberal and individualistic attitude of the Netherlands to prostitution,
euthanasia and soft drugs. Also, much of Dutch liberalism seems to
apply to Nordic countries.

308
In the past few years the rule of law thinking has become a kind of
normative mega-trend that Western States in particular expect of such
big States as China and Russia. The requirement is actually directed to
the harmonisation of law. However, as the repeated failures of law and
development movement show, one cannot underestimate the significance
of legal culture and the context of law. Also, the political ideology plays
an important role even though the law and development movement used
to be virtually blind to this.

A. Law and Development

During the 1960s and 1970s law and development was rooted in the
ideology of modernisation. In practice, this meant that development was
seen as something that should take place as State-led. The problem that
early law and development confronted was underdevelopment, which
was understood as the product of local institutions, cultures and societies.
The quintessential idea was straightforward: Western laws and legal
institutions were needed in order to direct and shape economic behaviour
in underdeveloped States. Typically, law and legal institutions were seen
to serve the creation of modern frameworks for the governance of State
industries. The State was seen as the driver of economic growth. Legal-
theoretical thinking leaned heavily on the instrumental view of law,
which was literally an instrument enhancing State-led development.
What is clear today, however, is that the first generation of law and
development failed and it did so quite spectacularly. The irritating
problem of the first generation of law and development was the inability
to recognise that the realities of developed Western countries and those
of developing countries were too far removed from each other for the
legal reforms to actually work in practice.
The second generation of law and development reforms brought about
a new focus and new concepts. The shift moved to concepts of good
governance or best practice in law and legal institutions. In this, various
aspects were woven together so that in order to reach good governance
legal reform was needed and, thus, the rule of law projects were also
needed. According to the second-generation approaches, development
was conceived mainly as a question of governance. This meant that legal
and judicial reforms started to appear regularly at the top of the list of
deep-reaching structural and institutional reforms in the policies set by
various international financial institutions. The idea seemed and seems to
be that reforms ought to work in such a manner that economic

309
development becomes possible when, and only when, certain legal
requirements are fulfilled: the rule of law, property rights and lately also
human rights. Instead of singular large-scale projects the emphasis
moved to more comprehensive thinking, which underlined and
underlines the importance of specific structural legal reforms. Albeit, the
ultimate justification behind structural reforms still seemed to be
economic as to its nature.
In the 1990s, law and development started a new more active phase
with the backing of such actors as the World Bank (third generation). As
a result there was a huge growth of various legal reform projects in
developing and transitioning post-socialist countries. Moneywise, the
new phase was impressive because billions of dollars had been spent on
different kinds of rule of law projects since the beginning of the decade.
This surge of interest seemed to assume that there was a broad consensus
according to which it was necessary to create rule of law based
governments in the developing and transitional economies. The rule of
law was taken as the basis of development policies and the key interest
was placed on trying to find the best strategies to implement rule of law
development objectives. However, as time passed the amount and
significance of challenges became distinct and the early enthusiasm of
the 1990s concerning the rule of law fell into decline. It became obvious
that the seemingly coherent and unified concept of the rule of law was
actually masking a plurality of visions and approaches, which were not
necessarily even compatible with each other.
The problem, well known in comparative law, was that the rule of law
is not really a universal value nor is it easy to achieve because this
concept has many meanings. Ideology and legal mentality play a role
here. So, it is hardly a surprise that the results of such projects have been
disappointing. There have been noteworthy implementation problems
and it has been noted that one crucial factor behind the failures has been
the inability of Western legal experts to recognise the role of local
knowledge and the need to adapt to local conditions while promoting
rule of law reforms. For the comparatist the continuing troubles of law
and development efforts clearly indicate how important the cultural and
ideological factors actually are for law. Yet, it is all but easy to
distinguish clearly between culture and ideology because they are
intertwined in much the same way as are language and culture.12

VI. CULTURAL FACTORS

310
One way to categorise legal systems into big packages or actually into
entities that are even larger is to consider that different countries belong
to cultural civilisations that are culturally different. As Mark Van Hoecke
and Mark Warrington point out: ‘by taking the perspective of “law as
culture” this approach should be less biased than the “law as rules”
approach of traditional comparative law’.13
Admittedly, like any macro-classification this classification too is of a
very general nature and is all but blind to the richness of detail and
nuance. In such cases, attempts are made to explain some differences and
similarities of legal systems by means of extensive cultural concepts and
talking about different cultural spheres (German Kulturkreis). Mattei’s
classification that is presented above was one example. Certain mental
structures or epistemic structures are thought of as being typical
constituent parts of a particular cultural sphere. This goes, undoubtedly,
way beyond the study of the legal system although it certainly affects the
legal style and legal-cultural identity. Van Hoecke and Warrington
underline that it is ‘important to take into account the cultural identity as
perceived by the people and the lawyers’.
Basically, professional law is seen as belonging to the West and
religious law as belonging to the non-Western cultural sphere etc. Here
the question is of explaining the differences and similarities between
systems by means of different legal-cultural factors and the legal
mentality. There are risks involved here because using these factors for
explanation can at its worst turn to disguising ethnocentric prejudices as
more acceptable—it can be a question of mental neo-colonialism. It can
also be a question of something that is nastier: Professor David Kennedy
from the US has criticised comparative law for promoting the
conservative political agenda under the cover of neutrality.14
Unfortunately the criticism by Kennedy is not unfounded and especially
with such comparative law related movements like law and development
one cannot help but to detect undeniable ethnocentric and even neo-
colonialist dimensions. Moreover, sometimes comparative law exercises
are also implicitly ethnocentric as the cases of legal orientalism and law
and development show.
Now, the legal sphere (Rechtskreis) has been derived from the concept
of the cultural sphere. Legal systems are classified on the basis of this by
deriving from characteristics that belong to specific cultural circles
explanations for the features that are stylistically typical of legal systems.
According to this, among legal spheres there would be, for example, the
Western countries, the Far East, Africa, Arab countries and India as well

311
as different nomadic cultures. A legal sphere can be defined as an entity
that is more extensive than a legal system and includes deeply rooted
historical and established attitudes to what the nature of law is and what
its role is in the society. In this more extensive division law is still
roughly divided into Western and non-Western law although this division
is inaccurate and does not work sufficiently, particularly not with mixed
or hybrid systems. In practice, it is a question of overlapping legal
cultures and hybridity. The difficulty is that cultures are overlapping and
that law travels over the borders; purity was but a dream of an outdated
national doctrinalist.
In Israel for example there are in marriage law different legal-cultural compartments
depending on the religion of the person: Jewish law for Jews, Islamic law for
Muslims and canon law for Catholics. The norms are applied by religious courts that
apply different sets of rules depending on the religion of the person in question.
Similar statutory pluralism is represented by the constitutional system of Lebanon
where according to the Ta’ if agreement from 1989 (the agreement that ended the
civil war) the President is Maronite Christian, the Prime Minister Sunni Muslim and
the Spokesman in the Chamber of Deputies Shia Muslim. In addition, the
Constitution of Lebanon (art 24) orders that in the legislative organ there has to be
equal representation for both Christians and Muslims.

The problem with making divisions between cultural spheres is that

owing to its own setting it seems to reject the original cosmopolitan and
pluralist assumptions of comparative law that are against ethnocentricism
and accepts the old prejudices between different cultures. Is the
customary law of indigenous peoples in this approach somehow more
primitive, poor and less developed to start with than positive law and
judge-made law? The natural reaction of comparatist would be: I do not
know, I will have to look into it before any answer can be given. In the
biased views, the comparative framework is ethnocentrically based on
own law which is automatically regarded as better than what is thought
to be the law of the undeveloped people. Legal orientalism is, for
example, a form of ethnocentriscism, a kind of epistemic racism. And, in
some versions of law and development one can see similar unacceptable
qualities based on predetermined implicit normative value judgements.
On the other hand, if the cultural and legal sphere division is to be
used as part of matter-of-fact comparative law without epistemological
racism, it ought not to have ethnocentric features. Cultural and ethnical
factors can have real effects when explanatory factors are looked for
between different legal systems. Such potential factors ought to be found
and analytically described in a study that to start with is as free of

312
prejudice (epoche-approach) as possible. One solution that has been
suggested (by Patrick Glenn) for the problems connected to the ‘culture’
concept has been giving it up and speaking of the legal traditions of the
world (to which Western law too belongs) in a more neutral way.15 Yet,
the diversity of traditions makes them difficult for macro-comparison
(and of course for micro-comparison too).
Occasionally several factors meet within a hybrid cultural sphere, such as religion,
business and law. Islamic banking is an example in which taking interest is a problem
as it is forbidden (haraam) for Muslims. On the other hand, it is known that banking
without taking interest is not profitable. In practice, Islamic banks invest in joint
enterprises and distribute the profit to their shareholders; in other words, the
operation is not based on interest but on profit sharing.

On the basis of deferred profit, the bank takes from the investor/depositor the share
of the expected profit that has been agreed in advance. In Western law this is
perceived as de facto interest. In fact there are several models in Islamic Banking, of
which the above-mentioned musharakah is only one example of several interrelated
solutions (it is a form of sukuk, ie a bond). In other words, there is within the Islamic
cultural sphere a creative legal solution model that enables sensible banking business.
Belonging to a given cultural sphere is not an obstacle here; instead the actor guides
the formulation of their own legal institutions so that they are made to correspond
with the form required in their own cultural sphere. In the West the battle against a
corresponding ban for taking interest adopted in the sphere of Catholic Church went
on for centuries. Before the Christian world renounced the ban, it had for a very long
time evaded it by turning to Jewish bankers (who were not restricted by the interest
ban). And, one should not overestimate the exotic nature of Islamic banking because,
for instance, it has been accepted in the UK where it is regarded as a legitimate form
of doing financial business.16 In the UK, Islamic banks offer, simply, Shari’ a-
compliant financial service products to Muslims. Yet, the basic rules of Shari’ a are
not being broken: a Muslim is not allowed—strictly speaking—to benefit from
lending money or receiving money from someone.

From the point of view of macro-comparative law, the advantage of legal

families over legal spheres (or cultural families) is their smaller size and
due to this the more illustrative and legal-historically nuanced picture
achieved. Legal spheres may, however, be useful when the stylistic
features of legal systems are evaluated since the occurrence of certain
special features as part of a legal system can cross the borders of legal
families and in this respect be related to cultural or legal spheres (eg the
views of human rights in China and Islamic countries v Western liberalist
views).

313
VII. FINALLY
Macro-constructs are living systematisations, and they are not meant to
be eternal. Legal systems are constantly in slow legal-cultural motion in
the sluggish stream of legal history. Classification into different legal
families, traditions and cultures is not to any extent based on natural law
thinking that searches for unchanging law. Any presentation of legal
families, cultures or traditions is dependent on the period when it has
been made. The comparatist’s own legal-cultural background plays an
important role. From the point of view of the comparatist, not even big
alterations in legislation necessarily frustrate the idea of classification.
The aim is not always to commit oneself to the present and to attempt to
produce the latest knowledge especially if the aims of comparison are
theoretical. Classifications, however, live with the legal systems of the
world when changes are thorough and fundamental and not just on the
surface. To be sure, the heartbeat of legal change is also the heartbeat of
macro-comparative law.
However, certain caution is in order here. It is not possible to notice all
changes in macro-comparison, and the images are always behind the
times, hazy pictures of the past. This is natural. Comparative law cannot
begin to compete with the national doctrinal study of law over who is
more aware of the latest turn in legislative development. The national
doctrinalists and the normative legal doctrine inevitably win this
competition. Macro-comparison helps in the placement of legal cultures
in their contexts and this is crucial because legal culture becomes
comprehensible only when we place it against its contexts. The main task
of macro-comparison can be considered to be the setting of legal cultures
against their backgrounds, for them to become comprehensible to those
who look at them from the outside.
There is no unanimous opinion among comparatists on how the legal
systems or other large-scale organised normativities of the world should
be classified. It is easy to criticise classification suggestions of the others
and the drawbacks in them. However, in spite of criticism classifications
that differ greatly from the existing ones have not been suggested. The
various classifications are actually surprisingly similar. In comparative
law theory, original innovations are scarce in connection with macro-
classification and modified plagiarism is as strong as ever. This does not
necessarily mean that comparative law is not capable of developing
because this is to a great extent due to the multiplicity and complexity of

314
legal systems and other organised normativities. This also manifests the
creativity and kaleidoscopic nature of comparative law.

***

To conclude, as an academic field comparative law in all its

manifestations offers great freedom. This offers great temptations for any
legal scholar. However, as Otto Kahn-Freund said: ‘On the professor of
comparative law the Gods have bestowed the most dangerous of their
gifts, the gift of freedom’.17 Kahn-Freund stressed the fact that freedom
does not come for free, but it comes with a great responsibility to take
foreign laws and legal cultures seriously. It is my understanding that this
combination of freedom and responsibility concerns all those who
engage in the quest of studying law comparatively.
Beyond this, pluralism is the lifeline of the common sense approach to
comparative law that is advocated in this book. We may end this book
with the words of Rodolfo Sacco: ‘the vision of the comparative law
perspective is the pluralistic vision. It is the richness of pluralism in
law’.18 But, it is also the richness of law which poses challenges: this
book is building on the twentieth century’s comparative law tradition,
but the challenge of today and especially that of tomorrow is how to
adapt methodological insights to a situation where the nation-State is no
longer the main defining entity. The manner by which we compare more
fluid entities will require comparatists to keep their eyes open also in the
future.

1 ‘den är enligt min mening pedagogiskt försvarlig’, M Bogdan, Komparativ

rättskunskap (Stockholm, Norstedts juridik, 2003) 81.
2 P Arminjon, B Nolde and M Wolff, Traité de droit comparé I (1950); R David and
C Jauffret-Spinosi, Les grands systèmes de droit contemporains 11th ed (Paris, Dalloz,
2002).
3 Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts, vol 1
(Tübingen, Mohr, 1971), English versions 1987, 1992 and 1998.
4 P de Cruz, Comparative Law in a Changing World, 3rd edn (London, Routledge-
Cavendish, 2007).
5 ‘Diritto comparato e sistemologia: le nuove sfide’ (ed) B Pozzo, Annuario di diritto
comparato e di studi legislativi 2013 (Naples, ESI, 2013).
6 K Zweigert and H Kötz, An Introduction to Comparative Law, 3rd edn (Oxford,
Oxford University Press, 1998) 63–73.
7 J Gordley, ‘Comparative Law and Legal History’ in M Reimann and R
Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford, Oxford
University Press, 2006) 763.

315
8 For a concise discussion, see G Samuel, A Short Introduction to Common Law
(Cheltenham, Edward Elgar, 2013) 79–82.
9 See also G Cuniberti, Grands systèmes de droit contemporains, 2nd edn (Paris,
LGDJ, 2011) 44–47 and Bogdan, Komparativ rättskunskap (n 1) 149–52.
10 See Zweigert and Kötz, Introduction (n 6) 143–54.
11 See Ö Metin and O Gelbal, ‘The Path to Modern Turkish Law’ (2008) 1 Ankara
Bar Review 121.
12 See J Husa, ‘Nordic Law and Development—See No Evil, Hear no Evil?’ (2015)
60 Scandinavian Studies in Law (forthcoming).
13 M Van Hoecke and M Warrington, ‘Legal Cultures, Legal Paradigms and Legal
Doctrine: Towards a New Model for Comparative Law’ (1998) 47 International and
Comparative Law Quarterly 495, 502.
14 See D Kennedy, ‘The Politics and Methods of Comparative Law’ in P Legrand and
R Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge,
Cambridge University Press, 2003) 345–433.
15 HP Glenn, ‘Legal Cultures and Traditions’ in M Van Hoecke (ed), Epistemology
and Methodology of Comparative Law (Oxford, Hart Publishing, 2004) 7–20.
16 For more detailed discussion, see eg R Wilson, ‘Challenges and Opportunities for
Islamic Banking and Finance in the West’ (1999) 41 Thunderbird International
Business Review 421.
17 O Kahn-Freund, ‘Comparative Law as an Academic Subject’ (1966) 82 Law
Quarterly Review 40, 41.
18 ‘la visione del diritto nell’ottica comparatistica è la visione pluralista. É nel
pluralismo la ricchezza del diritto’, R Sacco, ‘Quali scienze interessano il giurista?’ in
G Comandé and G Ponzanelli (a cura di) Scienza e diritto nel prisma del diritto
comparato (Turin, Giappichelli, 2004) 27–32, 29.

316
Acknowledgements

This book would not have been possible without the help I received from
many colleagues and friends. It saddens me to say but it would be quite
impossible to mention each and everyone separately. I mention here
specifically Juha Karhu and Petri Keskitalo with whom I have had many
fruitful discussions and exchanges about comparative law, legal theory
and the complexity of understanding foreign legal cultures. I would like
also to acknowledge Marieke Oderkerk who made many helpful
comments on the manuscript even though I did not always take her
advice.
I thank warmly Aira Thölix and Nicholas Kirkwood for their
wonderful and competent help concerning English during the writing
process. The copy editor Rob Crossley must be thanked for making the
text flow more easily than it originally did. I would also like to extend
my thanks to Bill Asquith, the commissioning editor, who was very
supportive from the very beginning.
Finally, special thanks go to my family, for their support,
encouragement and patience during my pursuit of writing yet another
obscure book.

Jaakko Husa

317
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British Library Cataloguing in Publication Data

Data Available

epub ISBN 13: 978-1-84946-952-4

Typeset by Compuscript Ltd, Shannon

Printed and bound in Great Britain by
CPI Group (UK) Ltd, Croydon CR0 4YY

318
目录
Title Page 1
Dedication 3
Contents 4
Use of Indented Paragraphs 9
1. Introduction 10
I. About this Book 11
II. Legal Culture in Focus 12
III. Structure of the Book 14
2. Comparative Law as a Discipline—A Short History 16
I. History of Comparative Law in a Nutshell 16
A. Birth of Modern Comparative Law 18
II. Comparative Law in the Twenty-first Century 20
A. Legal Systematics and Comparison: Private Law v
22
Public Law
3. Comparative Law—Definitions and Distinctions 28
I. Challenge of Further Definition 29
A. Crossing the Borders 29
II. Comparative Study of Law 31
A. Universalism? 32
B. Research Results and their Use 35
C. Restrictions on Use 36
III. The Theory of Comparative Law 37
A. Macro-comparison 38
B. Theory and Methodology 39
C. Special Features 40
4. Comparative Law—One of the Legal Disciplines 43
I. Part of a Larger Field of Knowledge 43
II. A Member of the Family of Legal Studies 45
A. Comparative Law and the Normative Approach 45
B. Comparative Law and the Roots of Law 48

319
C. Comparative Law and Sociological Dimensions of Law 51
D. Theoretical and Philosophical Dimensions of
56
Comparative Law
E. Linguistic and Economic Dimensions—Comparative
61
Law Reloaded
III. Comparison and Fields of Law 63
A. Private International Law 64
B. Public International Law 67
IV. Difficulty of Demarcation 70
5. Why Compare? 76
I. Starting Points—Creating Added Value 77
II. Comparison as a Cross-border Form of Knowledge
78
Acquisition
A. About Proportions 80
B. Different Needs 83
III. Comparison as Thinking Outside the Box 85
A. Away from Ethnocentrism 87
IV. Basic Knowledge-interests 89
V. Integrativity and Contradictivity 91
A. The Historical Dimension 92
B. Recent Integration in Europe 94
C. New or Old Ius Commune? 96
D. The International Dimension and Knowledge-interest of
101
Comparison
E. Other Dimensions 105
VI. Practical v Theoretical Approach 106
A. Practicality 106
B. Theoreticalness 110
VII. Pedagogical—Comparison in Teaching and Learning Law 112
6. Basic Strategies in Comparison 118
I. Introduction 118
A. Method—Methodology 120
B. Methodological Choices of a Technical Nature 122
II. Scope—From Macro to Micro 123

320
A. Comparison—Macro and Micro 123
B. New or Old—Micro or Macro 125
III. In Time and Space—The Time Dimension 126
A. Transplants and Loans 128
IV. Quantity 130
V. The Diversity of Legal Systems—Transnationality 133
A. Transnational Law 134
VI. Cultural Dimensions and their Overlapping 137
A. Too Many Sources? 138
VII. Methodological Choices of Theoretical Nature 140
VIII. Functionality—Functional Comparative Law 141
A. The Same Idea as a Starting Point 142
B. Getting Rid of System-specific Labels 145
C. Problems and Transformation of the Functional
147
Approach
D. Translating Legal Language and Functional Comparison 149
IX. Structural Dimension 151
A. Structural Elements 151
B. Structural Comparability 153
C. Dynamic Approach 156
X. Systematic Approach 157
XI. Critical Study Approaches—Two Examples 159
A. Deep Level Comparison and Mentality 160
B. Postcolonial Methodology—Orientalism 162
XII. Depth of the Study—Decisiveness of the Knowledge-
165
interest
XIII. Research Ethics 168
A. Honesty in Research 169
XIV. Comparative Methodology—Heuristics? 171
7. Comparing—Differences and Similarities 176
I. Need for a Yardstick for Comparison—Tertium Comparationis 177
A. Tertium and the Preference for Functional Comparison? 180
II. Differences and Similarities 183
III. Culture and Explanation 186

321
A. Mentality 189
IV. Economic Factors 193
V. Historical Factors 195
A. Colonialism 196
B. Understanding Institutions and their Adoption 198
C. The Presence of the Past 203
VI. Geography and Climate 204
A. Neighbourhood 206
VII. Other Factors 208
VIII. Differences between Explanatory Factors 210
IX. The Presumption of Similarity? 212
A. Diffusion and Similarity 215
8. Comparison—Obstacles and Difficulties 220
I. Comparative Research—Between the Familiar and the
220
Foreign
II. Research Data Related Problems 223
III. Pitfalls in Research-material Processing and Analysis 227
A. The Problem of Legal Language 227
B. Multilingualism 230
C. The Significance of Context 232
IV. Side-step to Theory: Comparing Laws, but what Laws? 234
A. Validity of Law 236
B. Pluralism and Law 238
V. Legal Comparison—A Particularly Risky Business? 240
VI. Comparison as a Learning Process 242
9. Macro-comparison 246
I. Basic Blocks of Macro-comparison 247
A. Common Law 247
B. Continental Law aka Civil Law 249
C. Mixed Legal Systems 252
D. Religious-traditional Law 254
E. What about the Socialist Legal Family? 256
II. Constructing Macro-constructs 257
A. Mastering Complexity by Means of Generalisations 259

322
III. Grouping Legal Systems 262
A. Legal Family 262
B. Nordic Legal Family? 265
C. Legal Culture 266
i. Professional Law 268
ii. Political Law 269
iii. Traditional Law 270
D. Legal Tradition 271
IV. Macro-constructs and Methodology 275
A. Change in the Knowledge Environment 275
B. Concentration on Basic Matters 278
V. Finally 279
10. Legal Evolution? 282
I. Is there Evolution in Law? 284
II. Problems in Macro-comparison 287
A. Changing of Law 289
III. Limits of Legal Evolution? 291
11. Groupings, Classifications, Categories 294
I. Technical Criteria 296
II. General Requirements 298
III. History-related Factors 300
IV. Nature of Legal Thinking (Legal Mentality) 302
A. Differences Between the Basic Codifications of
304
Continental Civil Law
V. Factors Related to Societal Ideology 307
A. Law and Development 309
VI. Cultural Factors 310
VII. Finally 314
Acknowledgements 317
eCopyright 318

323