Posted on July 11, 2024
by Yasmina Amhaz
Comparative Law has its roots in colonialism and at the time, comparative lawyers had a different approach to it, rather than today. The methods available for comparison then concerned primarily the Civil and Common Law legal systems. This blogpost critically examines global changes from Colonialism towards Globalisation, while also assessing how these changes have impacted Comparative Law itself.
The rise of secular nation States and the codification of law during the 18th and 19th centuries in Europe, resulted to a requirement for the development of Comparative Law, where comparative lawyers practically ‘‘tested’’ foreign laws for legal transplantation. They sought innovative legal models of study, which would help them understand how efficiently different legal rules functioned to solve a certain problem. A process which led to opportunities for new national laws.
Over the 19th century, Comparative Law was recognised as a Social Science, with legal scholars trying to elaborate on multiple methods and methodologies to demonstrate Law’s scientific nature. Though legal comparisons always existed historically, the birth of Comparative Law in modern times can be traced to the same period. Since then, both Globalisation and Colonialism have influenced the structure of legal systems world-wide (see here). The phenomenon of Globalisation during the 20th century further broadened aspects and ideas surrounding Comparative Law, leading to more universal legal rules. Since then, Comparative Law is a widely researched and discussed themes in anthropology and history, as well as Law itself, despite its marginal position as a field of legal scholarship.
The main purposes of Comparative Law include knowledge-generation, a deeper understanding of legal systems through comparison, and ultimately, the creation of an unbiased fair world with the adoption of beneficial rules and legal systems across jurisdictions. The broader purpose of comparative law was always the idea of comparison between different legal rules, legal systems and diverse legal forms across jurisdictions. However, with the passage of time, the concept of comparison has not remained only within the boundaries of comparing two or more legal systems. Instead, Comparative Law expanded and became more interested in different legal traditions, that have led to the diversity observed among legal systems. Subsequently, this expanded interest increasingly concerned many non-legal social elements, which impact the foundation and the structure of any legal system.
Colonialism and Legal Transplantation
Initially, comparatists focused on comparing western legal systems, at a time when legal rules were transplanted en masse from western to non-western territories. Interestingly, one of the earliest examples of legal transplantation is considered the expansion of Roman Law over continental Europe. In later centuries, during Colonialism, (colonialism understood as the domination and partial or full control of one sovereign nation, politically and/or legally, over another territory) different strategies for legal transplantation were used.
Colonial powers brought with them a large scale of legal rules and legal institutions, transplanting them into the legal system of a colonised territory. For instance, most colonies under the control of the United Kingdom were shaped by the English legal system, whereas France followed the principle of ‘direct rule’ and applied the French Civil Code universally in its colonies. The result in most colonies was often a two-tier legal system, addressed separately to the local population and the colonial administrators. Such legal systems were rife in the colonised parts of Africa, Asia, Latin America and the Pacific.
Legal transplantation, however, did not occur only in the colonies. It has been observed that on some occasions non-western elements were identified in Western jurisdictions, too. According to Monateri, Roman law itself had been a multicultural product of African, Semitic, and Mediterranean civilisations, while John Makdisi has identified Islamic Law elements in common law actions and in the trial by jury, from the reign of King Henry II in the 12th century onwards.
During colonial times, the distinction between the Civil Law and Common Law systems was one of the most debated points in Comparative Law. The two legal systems are said to ‘constitute the basic building blocks of the legal order’ and are recognised as the ‘dominant legal systems of the world’. The classification of legal systems into legal families can be seen as proof of these statements, given that today, highly diverse jurisdictions still share mutual characteristics regarding their legal history, legal thinking, and positive rules.
Change of approach: The role of tradition, culture and religion
In recent years, comparative lawyers started to gradually change their approach towards Comparative Law, drawing information for their comparisons from other normative systems such as tradition, culture, and religion, rather than the two dominant legal systems of the Civil and the Common Law.
In fact, it has been increasingly noted that taxonomizing legal systems based on legal families can be misleading, when failing to consider other principles such as language, religion, tradition, culture, and colonial historical context. An early example of such a case is the division of legal families by Wigmore in 1928 (originally here, Vols 1-3), who based his taxonomy of different legal systems under broad categories along either geographical or religious lines. Romanesque and Germanic laws were put together in the Civil Law family, Anglican laws were separated into the Common Law, whereas Islamic, Hebrew and Hindu laws formed separate religious legal systems each. Additional legal systems were categorised as Slavic, Japanese and Chinese. Hybrid or mixed legal systems were not included in this taxonomy, neither were other legal systems based on religious and traditional laws.
When interest in comparative law increased following decolonisation, most books were still structured based on traditional legal families, despite the fact that the handling and significance of legal families changed over time. This has been verified in many leading Comparative Law textbooks, which looked also at economic, political, philosophical, and religious factors as essential for comparative law purposes. From today’s perspective, the impact of this change in approach is perhaps most visible when studying legal transplants carried through under the principles of democracy, human rights, and the rule of law.
Legal Transplantation during Globalisation
According to Twinning, globalisation can be seen as a warning for lawyers and legal scholars, to not succumb to ‘generalisations that are exaggerated, false, meaningless, superficial, or ethnocentric’. On the other hand, apart from its economic and financial significance [discussed in following posts], globalisation came also in the form of the expansion of Human Rights, democracy, and the doctrine of the rule of law, which by the late 20th century appeared to have received acceptance across the globe.
Arguably, today legal transplantations are undertaken more voluntarily than in the past. One such example is the adoption of the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948, which along with other legal instruments since then, has contributed to a diffusion of global minimum standards of political, civil, economic, social, cultural, minority and women’s rights, as well as a widely recognised right to development. These legal developments have led to the need for a level of comparison far deeper than the one initiated by the earliest comparatists.
Thus, it can be argued that Colonialism kept Comparative Law restricted, by putting emphasis on the domineering Civil and Common Law distinction between legal systems. The fact that legal transplantations have never disappeared also remains of essence. Even though the persistent strong tendency for a focus on the western legal systems remains a constant reminder of the colonial origins of Comparative Law, today, legal families and legal transplants can play a foundational role in expanding our understanding of the diversity of legal systems worldwide.
Posted in Student Symposium on Comparative Law