by Hashane Perera

“Comparative Law may have been the hobby of yesterday, but it is destined to become the science of tomorrow. We must welcome rather than fear its influence.”

Lord Goff, The Wilberforce Lecture (1997)

The notion that laws and legal structures of another jurisdiction were in some way superior and should therefore be actively restricted or recognized was the starting point of the comparative research process. For instance, the XII Tables, the earliest legal records of Roman Law that have survived to the present, show that classical Greek Law had a notable impact on early Roman Law. At present, new advancements that have transited from the late 20^th to the early 21^st century, such as the internet, global trade markets, and mutual commerce pushes Comparative Law to play an important role in our increasingly globalized and interconnected society.

According to W. J. Kamba, comparative studies refer to the systematic comparison of two or more legal systems, as well as of their individual parts, branches, or other components, in order to study and conduct research on the subject of law. This conceptualization of comparative law would appear to be accepted by most comparative lawyers and academics today. Even so, throughout the previous 25 years, there have been many studies giving different interpretations of what Comparative Law seeks to address, and on the role of comparative law in legal education. It is sufficient to say that at the dawn of 21^st century, there has been a contradiction between two polar views. On the one hand there are those like Reimann who have written of ‘The Progress and Failure of Comparative Law’, and those like John C. Reitz who held the view that ‘Comparative law truly holds exciting potential to help us better understand law and legal systems.’ In simple terms, the influence of Globalisation on certain traditional comparatists may have different perspectives in comparison to others.

Navigating legal traditions

From the 17^th to the 20^th centuries, comparative legal studies have progressed by accumulating large amounts of knowledge from various legal systems, as referenced in case books, treaties, encyclopaedias and several journals. This is the case especially after the 1950s, when there was a proliferation of journals specialising in Comparative Law. Despite its relatively deep historical roots, until today this field of legal studies is seen primarily as a methodology focused on identifying similarities and discrepancies between the legal systems of other jurisdictions, as well as on clarifying, assessing, and maybe even resolving issues among them, by harmonizing the rules across different  legal systems, first within the context of Colonialism and, more recently, Globalisation.

Legal transplants can be found across countries where there has been adoption of foreign legal rules. A phenomenon which, as it has been argued, has brought legal cultures closer, or in other instances, such as in the context of development aid, has been the means for encouraging economic growth. In a separate example, the European Court of Justice (ECJ) is known to use Comparative Law consistently within the European Union (EU). In light of this, Comparative Law consistently plays a crucial role in both the general interaction between the Union and its member states, and the conversation between its Court of Justice, the ECJ, and the national courts, as seen in the cases of Peter Gauweiler and others v. Deutscher Bundestag [2015] and Hay v. Crédit Agricole Mutuel de Charente-Maritime et des Deux-Sèvres [2013].

However, Comparative Law has advanced also in a very different way. Namely, by challenging traditional approaches, objectives, and methodologies of legal scholarship, through a turn to fresh research territory. Many comparatists specifically criticise the traditional fixation on and concurrent desire for the identification of differences and similarities across legal rules, as opposed to identifying and assigning significance to elements characteristic of foreign laws and cultures. Similarly, Comparative Law’s extreme rule-orientation is also critiqued often, due to the subsequent neglect of historical and philosophical context, as well as its steadfast Eurocentrism, fixation with private law, and disregard for international politics.

Considering the above limitations – many of which are still evident today – and the density of information gained over the long history of the evolution of Comparative Law, in the 21^st century Comparative Law can be used to shed light on the inner workings of a foreign legal system. Scholars like Reimann indicate that the development of comparative law into a reputable database of actual knowledge during the past 50 years has been its most significant success. To illustrate further on this point, David J. Gerber indicates that the effect of globalisation allowed scholars to pay attention to methods and objectives that have either been overlooked or underdeveloped in comparative legal studies.

Contemporary Methodology

The specifications of contemporary practice in the legal field of comparative law are evolving under the strain of Globalisation. One of the main difficult aspects is that a researcher must navigate the potential challenge of identifying functional equivalence, also evident in cases of the need for translations, not to mention the unprecedented bulk of unstructured information available in digital form. Thus, a good comparative law study should normally devote substantial effort to exploring the degree of functional equivalents in systems under comparison, while it remains up to the researcher to separate the potentially relevant legal data from trustworthy sources.

There have been several distinct approaches towards developing and outlining a competent comparative law methodology over the years. For example, Edward J. Eberle suggests a simple yet beneficial four step procedure in his comparative law methodology. Firstly, to obtain accurate findings through a thorough education in comparative law, which includes a certain level of linguistic competency, cultural awareness, and the capacity to be both unbiased and neutral. Secondly, to review and closely evaluate laws from different countries. Thirdly, to interpret the impact of these laws and how they function within a society. The last step entails compiling the study’s findings to figure out what one’s own legal system may learn or apply from other jurisdictions.

Through Eberle’s approach we can reach two important objectives of comparative law, as identified by Reitz. Firstly, to overcome gaps between legal systems. Secondly, to comprehend the differences and similarities seen in different cultures, for which the researcher is forced to extend their study to cover the entire legal system and its relationship with human society.

Conclusion

Comparative Law has developed into a respected body of knowledge and through it we have the opportunity to navigate many of the complex legal aspects of our modern, and increasingly interlinked, world. There are still limitations in earlier methods, where Comparative Law primarily examined the legal systems of Europe and North America, and focused disproportionately on private law. However, there are arguments in support of Comparative Law, which suggest the abandonment of a more traditional route. These critiques, whether they are more conventional or post-modernist in style, represent progress in one crucial way. The taking on of larger missions and the additional exploration of non-western and non-traditional cultures, which holds the potential to be both influential and resourceful. The collection of information can be raw and in vast amounts, yet it constitutes also a critical doorway to foreign cultures, and with the correct methodology, it can be used to throw light on crucial struggles and provide remedies. Comparative law may have been displaced by other areas of law and it may have changed over time, yet it is also certainly holds the potential to evolve and adapt to the needs of a shrinking world.