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A. GENERAL CONSIDERATIONS

I
The Concept of Comparative Law

Ao-ru, 'Ethnologische Rechtsforschung', in: Adamfirimborn, Lehrbuchderlõlker-

kunde (3rd, edn. 1958) r89.
Be-Ner+q, 'Some Thoughts on the Method of comparative Law:
The concept of
[¿w Revisited', Reu- hell dr int. 33 (r9go) r55.
v. BcN'^-BTcKMANN, 'Einige Bemerkungen ùber die Beziehung zwischen
Rechts-
soziologie und Rechtsvergleichung', ZvglRWTg
GSZS)S¡.
'Ethnologie uud Rechtsvergleichung', lRSp
1r9ãij 3ro.
crx'roNNrer, 'L'Apport du droit cóùrparé å la socioiogieluridique', is:
-. L¡vreducen-
tenaíre de la Socíété de lêgislation comparée I (1969)
75.
corNc, 'Die Bcdeutung der europãisclen Recttsgeschichte fù¡ die Rechtsvergle!
chung', RabelsZ 3z (1968) r.
Dr Cnuz, A Modern Apptoach to C-omparative f.a¡t, (1993).
Dno¡Nrc, 'Methods of sociological Research in-ôãmparative Law', Rabetsz
(r97r) 496. 35

Dnonxrc/RTnBTNDER (eds.), Rechtssoziotogie und Rechuvergleichung (t977,

with
importanr contriburions from Drobnig, Gessner, HerdriJh, n"rrËio¿ái,
r"rr¿,
Zweigert, and others).
GeNzM¡n' 'z¡rm verhãltnis von Rechtsgeschichte und Rechtsvergreichung',
l.RSp 4r
(te54l5j 326.
--:, 'A Civil Lawyer's Critical Views on Comparative Iægal History', 15 Ant J
Comp. L 8Z (rg6d).
rr¡¡r¡noNxsn,'ziere und Methoden võlkerrechtrich relevanter Rechtsverglcichung,,
ZaõRV 36 (1976) r9o.
L¿.¡rq¡nr, 'conception générare et déû:rition de ra science drr droit
comparé,, proces-
verbaux des séances et docum€rts, co¡rgrès itrternationai
de droit coåparå-'I (r9o5)
26, printed in: Zweigert/puttfarken (eds.), Recårrergleichung
-
LrcneNo, Book Review, 5g Mod_ L Ãeu z6z (lgSS).
AgZgl,ã.
MerrrNv,'Rechtsvergleichung und vergteichinJJ Rechtssoziolo gte',
Rechtssoziologie I (r98o) 65.
zeitschrift frr
Posersrr, The Ethnotogy of l-aw (znó, edn., r97g).
PouNo, 'Some Thoughts About comparative Law', in: Festschrifi Ernsr Raber t
(tssÐ t.
'Comparative L¿w in Space and Time', Am J Co^p.L
4 70 (1955).
P.¡,sEr-, Aufgabe und Notwendigkeit der Rechts,eìgreichung
-, Gesammelte Aufsdae III (ed. t"eser, 1967) r.
eizÐ,."pJ"1ä in: Raber,

I
I

2 General Considerøtions
.Legal Systems: comparative l-aw and lægal Systems" it International
RnnrxsrrrN,
Encyclopediaofthe Soci¿lsciences D( (ed. Sills' 1968) zo4'
EínJùlirungindie Rechtsvergleichung (znd edn-' 1987)-
Secco, Introduzione al dirítto comparata (5th edn., t99z)'
-,
SCnW^RZ-Lr¡BERMANN V. WAHLENDo RF , Ðloit comparé , Théoríe générale et
(rsz8)-
SroÑe,
lTh" Eod to
Be Served by Comparative Law', z5 TuL L"Røv' 325 (t95t)'
TuroN, 'Comparative Law: Expanding Horizons', to JSPTL 265 (1968)'
WeNcen, .Recltsgeschicht unã Rechtsvergleichung', in: Mémoires de lAcadémie
internatíonale de droit comparé tII t (1953) t49'
yxrru^, .Roman Law as ihe Basis of Comparative Law', ¡n Law-ACenturyofPro'
gzess 1835-1935 II (¡g¡Z) ¡+6.
Zõercexr, .Das soziologisch. Dim"nsion in der Rechtsvergleic\utg', RabelsZ
(tgzÐ zgg-
(eds.), Rechtsvergleichung (t918)'
-Æ)u'rrrARrrx
I worlcl lary. Yet despite a more sc€ptical way of looking at the world, the devel-
Benonr we try to discover the essence, function, and aims of comparative
law, let us firsi say what'comparative law' means. r{þe.words.suggest,:,af-¡
intellectual activity witl law as its object and cgmparison.as its process'
-Noï
compariionl cuJU" made between different rules in a single legal sys-
tem, as, fàr example, between different paragraphs of the German Civil
Coáe. If this were àU tn.t was meant by comparative law, !t.WSuld bç.ha¡d.
to.see how,it.differgd..[rop ryh+J,lqryy..e¡s.no¡qally..do: 'lawYers constantly
Èi"¿ to,'¡,i*t"b'ó....ti¿f"nïoiiiädtiË-*rtü of their owû system, that is, com-
p.t",îg;itÚ"r"r"'îrí#äti iËJ"rr any practical decision or theoretical conclu-
sion. Since this is characteristic of every national system of law,'comparative
law, must mean more than appears on the surf,ace. The extra dimension is
that of internationalism. Thus 'comparative law' is the comparison of the
it is.
The temper of the Congress was in tune with the tinaes, whose increasing
wealth and had given everyone, scholars included,ian imPerturb- í
:able faith in of his existence, certain of its point and convinced
of its success, 'tfiiig fo.,biêäË'quf-cit Ëis'loõal'ccinfiriés-: ârid peai:e'
I
.Ì-
t
The ConcePt of ComParative Law 3
abl;' to ,raster the world and all that was in it. Naturally enougb, lawyers
wei + a.fl[ì::cted by this spirit; merely to interpret and elaborate their own sys-
ten: n,o lÛnger satisÊed them. This outgoing spirit permeates all the Congress
paFf:rs; the whole Congfess was by a disarming belief in
princípes .V{1. a.t [-,n¡Áernt and
.les¡ of commun A world
tir.a¡r a..common ,:law.
lavr must be created-not poday., perhaps not even t6¡1e¡¡s1y-þut created
it rnust tre, and compqr4tfve law.must crqate_.i!. .ds Leu¡nnr-?u-t,it f..|:n
,p. T, up. z6 ff.),;99gga;11ip. faw;_m¡¡l!-_Ss*oBS.,Jb1e,SSi4pSt*l,f.SE".d,iglilç,tu'
..¡tli[ìi:r':nc,es Ln-the laflqof peoples at-similar stages of cultural and economic
: der i:loFnlent, ând reduco the aumber of divergencies in law, attributable not
to r:ll:-prolitical, moral,.o4 social qualities.of-!!-e- di$erent. nations but to
38
accident or to tempo-rary 9{ cpntmgeF.t clrcum.starces.
.his,.<¡r:'ical
(lorupÀrative law has developed cóntinuously since then, despite great
cherng;es in man's attitude tgwards existence. The belief in pro¡iress, so charac-
ter.stic of r9oo, has died. Wþrld wars have weakened, if not destroyed, faith in
opi.-¡lent a¡rd enrichment of comparative law has been steady- Comparative
la!,i¡yers have come to know their field better, they have refined their methods
ancl s,rt thriÍiigÈts a tittle lòweil but they remain convinced that comparative
Iaw iç troth useful and ne@ssary. Scholars are more resistant to fashionable
they have no immediate aim, only
.pessirnism than peqple in other walks, of li-[e;
¡hc rritin'rate'goalof diScovering;thetruthrThis is true also of research in com-
para:tivl3 law; it has no immrcdiate aim. But if one did want to adduce argu-
rncnts of utjlity, comparative law must be at least as useful as it was,
esp:cially as technological developments since Igoo have made the world ever
srn¿ller::rnd, to all appearances, national isolationism is on the wane. Furthe¡-
mor'e, tr¡¡ the international exchanges which it requires, comparative law pro-
curçs tlre gradual approximation of viewpoints, the abandonment of deadly
coruplacency, and the relaxation of fixed dogma. It affords us a elimpse into
$ the ;form and formation of legal iastitutions which develop in parallel, pos-
sibly i¡ accordance rvith laws yet to be determined, and permits us to catch
sight, ttrrough the differences in detail, of the grand similarities and so to
de{:peri our belief in the eistence of a unitary sense of justice.
Jl)esprite all this, comparative law still occupies a rather modest position in
ac¿:rle.rnic curricula (see further Ch. e IV below). Though LeMnrRr's gf,eat
ci,aj¡ns in this resp€ct, as developed in his report of rgoo (above p. I, pp-
5l ÍìL) ',¡'ç¡e much more realistic than his dream of a 'droit cornmun de I'hu-
ma-:uißé'n tlrey have not yet been realized anywhere in tle world. He thought
thrrt it y¿ould be greatly to the good of society if pride of place in academic
sturJ.i¡:s were accorded to comparative private law, the heartland of all com-
pa:'uLf.ive law. For if clear and consistent general principles of law were estab-
lisixril, ihis would promote international trade and advance the general
 .srÊ:.
H

4 General Considerations
The Concept of Comparatíve Law 5
standard of iiving, and if lawyers were induc€d to look beyond their borders, .:
international exchanges would increase. Future lawyers-would have to be .¡ should not con-ûne one's study to the state courts and judges: one should
exposed to 'corirparative common legislation'and comparative law while take account of all actual methods of settling disputes. Studying the various
stilt
people engaged tl
.

at uaiversity. This would refresh and en¡ich the study of their native law,
which was increasingly confining itself to interpretinj the actual texts and.
neglecting principle for doctrinal detail.
It may indeed be that the mere interpretation of positive rules of law in the way
traditionally practised by lawyers does not deserve to be called a science
at all,
whether intellectual or social. perhaps legal studies only become
truly scientific when
they rise above the actuar.rures of any nationar system, as happens in legar philoso-
phy, legal history, the sociology of law, and comparative law.
Now it is precisely the broad principles which compa¡ative law lets one
see; it can help the economist by discovering the social þreconditions of par-
ticular rules of law, and by the comparisons it makes across time it can assist
the legal historian. students today are often put off by textual disputes, arid
logomachies, and logical demonstrations, which pr"uànt their seeing the liv-
ing problems which lurk behind these technical facades. For thii reason
LeusEnr claimed for comparative law a place in the curricul ,m equal to
that of the home system: four lectures a week should be given in comparative
law for each of th¡ee semesters. Everything he said is as valid today äs when
he said it in r9oo, but though muóh has impioved in many countries ia the
ensuing century, the radical restructuring of the curriculurnwhich he showed
to be necessary has yet to take place.
È" life of the law, asking what thçy do, how, ãnd why, is a
very promising ûeld of work for comparative lawyers. First of all one would
look at the judges and the lawyers, the people, whatever they are called, who
apply or advise on the law in any system. But it can also be profitable to
compare other persons involved in the law, such as the lawyers in Ministries
and Parliaments who work on forthcoming legislation, ooå.i"r, tn"
who appear in couf, the claims adjusters of insurance "*p"rt,
and, last
but qo.t-_least, those..who teach law in universities. "o-puni.,
,¿r}l.\,t,:1:l V,;o'+r¿;y.< o,*, i!-
:ryigr,o,rgllrç.r"is.,lprity contrasr, has ro do with specífrc legar instirurions or
problems, that is, with the mles used to solve actual problems or particular
conflicts of inte¡ests- when is a manufacturer liable for the hr.m
to a
consumer by defective goods? what rules determine the allocation "äus"¿
of loss in
the case of t¡affic accidents? what factors are relevant for determining
the
cusrody of children in divorce cases? If an illegitimate child is disinheríted
by his father or mother, what rights does he have? The list of possible ex_
amples is endless.
The dividing line between macrocomparison and microcomparison
is
admittedly flexible. Indeed, one must often do both at the same time,
for
often one has to study the procedures by which the rules are in fact
appried
in order to underst¿nd why a foreign system solves a particular problem
in
the way it does.

II - For example, no picture of the rules which appry when a patient

is suing a doctor
'ö"niË*uii*' Í¡iöäi'¿äiii,u,e"ritËËäi,si',Ë.ãà for damages can be complete or accurate unless-ii áescribes trr*
Á"rp..ãì"e
..î &nér*l; ;ätiAI rui.
can be done on a large scale or on a smaller scale. To comparç the spirit '-
üshed in court and teüs us whethei the experts are appointed
by
-the is estab-
coun or are
thosen
by the parties rhemselves to battre ìt out in the courtroom, as
and style of different legal sy-s1em1,_tþ9, methgds of thought and procedures happens in
cour¡non [,aw countries-*Nor courd one give a true picture of the
American law
they use, is sometimes called'liiacroãompariioir:'&rere, insiead of óoncntrat- regarding the strict liability of the manufacturer just byìisting t¡r"
.r"-""ì, of a suc-
ing on individual concrete proutems âà¿ their dolutions, research is done into cessful claim at law- one must arso say that the ciaim .,uiu
b" d;"ià;Jr" ii"l by jury
methods of handling lesal materials, procedures for resolving and deciding and show what roles the judge, rawyers, a¡d jury pray in " arra tro*
p.o"""àiog"
disputes, or the ¡oles of those eugaged in the raw. For example, one can com- this influences the zubstantive law, by noting, fór exampre, "rr"t
that in such a craim the
plaiutiff's attorney normaly stipurates for a fee of
pare different techniques of legislation, styles of codification, and methods
of 3o-5o per.rr, oiit" damages
awarded and that the jury t¿kes account of this fact wh"r-n"irrg
starutory interpretation, and discuss the authority ofprecedents, the contri-
one must cast one's net wider still. Tort liability is just
o" å"*"gàr. Indeed,
bution made by academics to the development of law, and the diverse styles one of the ways oiimp.oving
the quality of products and reducing the risls to the public:
of judicial opinion. Flere too one could study the different ways of resolving administrative and
criminal law may. have_ a contribution to make, and if
conflicts adopted by different legal systems, and ask höw effective they actu- to play a different and more important rore in the united iroduct ii.iiÇìo* ,""rn,
ally are. Attention may be focused on the official state courts: how is the states ,t i" Europe
(see below ch.
42 v), this may perhaps be because Americans take a "í t"ss sanguine
business of proving the facts and establishing the law divided between attor- view than Europeans of the efficacy oì cost of administratiu.
ãnà
neys and judges? rüy'hat role do lay judges have iu civil or criminal proceed- sancdons. These exampres must sufñce to show that .-i"ro.o-puriroì
"onäor, "¡-inat
work at ail unress one rakes_into account the generar may not
ings? what special anangements, if any, are made for smail claims?rBut*one iustitutionaii;,.-t, in which
the rules under comparison have evolved andãre actually
applied.
 iF-'
'Í:'
i¡
,!

The ConcePt of ComParative Law 7

G eneral C ons íd¿r ations
6

ilI
it is as well to distin-
In order to underst¿nd what comparative law really is,
comparative
guiril, ft"* related areas of legaiscience, that is' to show what ít

there are sPecific comParative

is devoted. ExPerience shows
essentials of the relevant
that this is best done if the author ûrst lays out the basis for cri-
this material as a
foreign law, countrY bY country, and then uses
uP with conclusions about the ProPer policy for the
tical comParison, ending
of his own system.
law to adoPt, which maY involve a reinterpretation
also deal with foreign law,
The neighbouring areas of legal science' which
distinguished, are Private inter-
and from which comParative law must be
national law, public international law, legal history, legal ethnology, and
finally sociologY of law'

ComParative Law and Privale International

Law
t.
of it, entf;elY distinct, but theY interact. Pri-
These two ar€as are, on- the.face
vate internationalla w,íor conflict'of laws] is a part of the
itself as

(zrrr.l er!n., 1958), 3 ff., ro3 f').'

! z. Ç oryparative Law' and P ub I ic'Ii ie rial¡¡ona!.iLh.l

Al first sight there is little in common between comparative law and public
i¡uernationallaw, for public international law, or the law of nations, is essen-
tia1ly a supranationãl and global system of law. Yet comparative law is
ró the understanding of .:!¡p._cj:9:r-*gf_TitF:"-'-t leY r::9,."4¡i"j
"r,ruãti"r
 '
lFø¡''
.#

8 6eneral Consíderations :
The Concept of Comparøtive l-aw
9
,-.u¿91vifiz¡0 nations'which a¡e laid down as being one of the sources of pub-
liä'iûtêniãtioääl-law by art- ¡g G) (c) of the statute of rhe Interaarional
court of Justice-whethe¡ this m"ans principles of raw acrepted by all
nations without exception,.which wouldlnduåe only a few
trivial truisrns,
or rather the principles of law accepted by a large majority of nations.
The recognition of such general prinJiples is rende¡ed moìe difficutt
by the
basic differences of attitude between ihe deveroped industriar
nuiioo, uo¿
tìose in process of deveropment. Now one of me aims of comparative
law
is to discover which solution of a problem is the best, and perhais
one could
h:1"9" as a 'general principle of l"*' the solution or u jarticutar probrem
which emerges from a proper evaruation of the material unde¡ comparison
as being the best. To do this wourd avoid reducing the varuabre
notion of
'general princþles of law' to a mere minimum standãrd, and
could gradually
lead us to accept progressive sorutions as being exampres of sucñ general
principles.
The methods of comparative raw can also be extremely useful
in interpreting
treaties, and in helping to understand qqmg.olth" and institutions of
"orrdpt,
-gu¡tomary international law. The rulJllactasant¡ertanìaitiei¿"1 ¡"nirr¿ trr" was
"ctau14largþussicsta-ntibssi and the theory or abwdàdro¡t in
intemational iaw
' all have their roots in institutions of municipal private law, and it is only
through comparative law that they can be maãe to
¡.ta theirfull potential.
3. ipomparative !a-w, tàgat-{!,t;ry, ana fÞga'i ptltfiiqtà cyl
The relationship between comparative raw and regar history is surprisingry
complex. At first sight one is tempted to say that *hil" íaw stud-
ies legal systems coex.istent in spaie, regal úistory studies"o.npáradve
,yrt.*, consecutive t
in time. But tåere is more to it than that. Foi one thin!, all legal history
involves a comparative erernent: the legal historian help üringing to
the study of his chosen system, say Roman raw, the"rrrool
various pÀconcepti,ons
of the modern system he is familiar with; thus he is bound to make compari-
sons, consciously if he is alert, unconsciously if he is not. Again, unJess the
comparatist is content merely to record the actual state of pla=y, he really has
to take accouni of the historical circumstances in which *rå telu institutions
and procedures under comparison evolved. rtrow does histõrical research
differ from comparative work? where does one ."nd and the other begin?
At what point must the comparatist yield [he floor to the legal historian?
The questions admit of no rationai answer. Legal history and:comparative
law are much of a muchness; views may differ on which of these twin sisters
is the more comely, but there is no doubt that the legal historian must often
use the comparative method and that if the comparatist is to make sense of,
the rules and the problems they are intended to solve he must often investigate
their history,
The founders of comparative legal ethnology,.tr. -[. BecnoraN (DasMut-

'.iÞ
:s
¡o General Considerations
industrial revolution and being drawn into the community of m¿nkind.
Accordingly the task ofmodern legal ethnology is to study the changes suffered
by societiãs akeady observed in adjusting to the intrusion of a higher civiliza-
tiãn. Thus to a large extent legal ethnology has become a branch of modern
comÞarati.ye-law, one.pf.whose most pressing tasks it is to assist the legal
,yrt"ir ofãeveloping'iocietieòiby giving them the benefits of its comparative
researches. To this aim legal ethnology has its special contribution to mâke.
4. Comparative l-aw and SociologY
After the discussion in recent years of the relation between sociology of law
and comparative law, it now seems to be generally agteed that the two dis-
ciplines not only have a great deal to learn f¡om each othei but also use
. to nror¡ld human conduct'in thè situation under consideration (on this see
muchtåe-same.,methods..,., . -: : ; -..-...
ßæiåion",¿f íaw aiiai tó diicöve. the'caubäl relatioqshipq.b€twéen law andi
;'.oË€ffíliî"eks ro discover patterns from which one can infer whether and
'ri"¿èt *U"t circumstances law affects human behaviour and conversely how
law is affected by social change, whether of a political, economic, psycho-
logical, or demographic nature. This is'an area where it is very difficult to
co-nstruct theories, but if one can support one's tåeory with comparative
data from otåer nations and cultures, it will be much more p€rsuasive.
Legal sociologists use a technique quite like the 'contfol group' of experimental
natuial scientisti: if in a givea sector of oxperience two systems have dillbrent rules
and one can show that the relevant social facts in those countries are also different'
this may point towards the hypothesis thdt the social facts aad the rules are causally
(see examples giu"" b"tow pp. 37 ff.)- Likes¡ise if one brings in the time
"ooo""t"á
dimension, on" *.y b" abie to show that as the social development in diffe.rent coun-
tries convérges (oidiverges) the rules in force there also converge (or diverge). If
people behave the sameiay in similar situations despite a-difference in the rules
l"fri"n prr.port to control their conduct, one may infer that the rules are ineffectual'
and tåã same inference may be drawn when the mles are tJre same but people
behave
differently. On all this .o i,,f.norxt (above p. r): he shows how the sociology of law
can use the discoveries of comparative law, while making it cleaf that the practice of
international and interculturailegal sociology is a very difËcult matter indeed.
comparative sociology of law can mâke use of the experience and dis-
If
a great
coveries of comparative law, comparative lawyers undoubtedlY have
for what one can
deal to sts. This is imPortant, first,
la have long known that
call Comparative
only rules which Perform the same function and Pro:' iP
can
tn
their
which to describe such problems or con-
flicts of interests (on this see further Ch. ¡ II) Legal sociologists' not onlY
.-ffi-e-
The ConcePt of ComParatíve Law II
):;
accepr tlús but apply itwith a rigourwhich thecomparative lawyeiÂnds stimu-
for legal sociologists can sometimes sholv that
Lü"g, if ¡t" a bit worrying,
,î,rËir*r and features which the comparative lawyer regards as 'neutral' and
definition of the problem are in fact nationally or
tÀ*t ioo* suitable for the
imPlicitly presuppose the existence of a
åiiioraUy conditioned, or that they
t: social coutext which in reality exists in only one of the places
)' "rrti"ulit and not in the other. Once the problem has been defined
io,t",
"o-p"rison the svstems
and ir. comes to trre quesiþn "r:úiyt-i-46pii¡ãiiiè"ülri'l,\ich
un¿er revi"w use to resolvé it, the situatioäis similar. Here too comparative
tù*ru agree that orr" *.rlst take account not only of legislative rules, judi-
the 'law iiL tpe Uoþts', and also of general conditions of busi
cial-clecisións,
j
ness, customs, and practiçs, bup in fact of everythiog
whatever which helps
:
belor,¡¡ Ch. 3 II and III). Sociologists of law take this for
granted, since they
:.
oìrt from the assumpfion that human behaviour is controlled by many
start
factors other than law, but lawyers ûnd it more difûcult-and comparative
lawyers arc generally lawyers ol some kind. They have to force themselves
to i:e sufficiently receptivè to the non-legal forces which control conduct,
an,J here they have much to learn from the more open-minded sociologists
of lavu. So also when the,comparative lawyet æmes to explainhisftndings,
that is, to describe the causes of the legal similarities or differences which
he h¡ls discovered. He¡kþows,, of course, that causal factors may eldst
anywhete throughout the fabric of social life, but often he will have to go
to thc sociology of law to; learn just how far he must cast his net" so as to
inclurle, for example, the distribution of political power, the economic
sy$tem, religious and ethicàl values, family structure, the basis of agriculture
an,l the degree of induslrialiátion, the organization of authorities and
grÐrrps, and much else beiides.
- iJ'ne must not forget thaf comparative law has several diffcrent goals. In its
tlrco,retical-descriptive formithe principal aim is to say how and why certain
legal systems are different br alike. In this respect it must, âs we have shown,
wãrk on and profit from ttre theoretical models and empirical daø produced
by f:he sociology of law. Büt comparative law can also aim to provide advice
on legal policy. ln its applied versioB, comparative law suggests how a spe-
ciû.c problem can most appropriately be solved uuder the given social and eco-
nouúc circumstances. In such cases the comparative lawyer often acts under
considerable pressure: he may be pressed to say how the positive law should
be altercd on a particular point, how a perceived gap should be filled, or
ex¡ atly what rules should be adopted in an international uniform law, and
he mily triave to come up with detailed proposals in a very short time. In such
ci¡:cums.tances he has to operate with assumptious which, plausible as they
m¿ì)¡ be, would rightly be derided by the sociologist of law as simple working
hyUotheses. But this does not mean that they are necessarily false. Without
1z General Considerations
in the least suggesting that the comparative lawyer cao ignore the insights
and discoveries of the legal sociologist, he often cannot avoid adoptiag, how-
ever teutatively and provisionally, theses which the sociologist of law would
regard as unproven, but which are nevertheless cogent enough to cårry
2
weight in discussions or decisions about changing the law.
The Functions and Airns of
{
Comparatiye Law

AulrN, 'Die rechtsvergleichende Interpretatiou autonom-iqternen Rechts in der

deutschen Rechtsprechung', RabelsZ 34 (r97o) 45g.
Br¿Nc-Jouv¡,x,'Réflerions sur I'enseignemeut du droit comparé,, Reu. int. dr comp-
4o (1988) 75r.
Brrcrrrr,rxN, 'Die Rolle der Rechtsvergleichung in den Europãischen Gemein-
schaften', ZvglRW 75 (1976) ro6.
coiNc, 'Rechtsvergleichung als Grundlage .rion Gesetzgebung im 19. Jahrhundert,,
Iuscommune VII (1978) 16o.
D¡,Ic, 'Zur Recltsvergleichung und Methodenlehre im Europãischen Gemeinschafts-
ræht', Festschrirt Zweigert GS8¡) ¡SS.
R. Dev¡o, 'The International unification of private Law', in: Internationalqncyclo_
pediaof Comparatíve Law II (r97r) Ch. 5.
Dõlr.E, 'Der Beitrag der Rechtsvergleichung zr:rn deutschen Recht', in. HundertJahre
deutsches Rechlsleben, Feslschrifi zum toojdhrtgen Bestehen des deutschen Jurístentages
t86o-r96o II (196o) 19.
DRoBNrc, 'The use of Foreigo Law by Gerrnan courts', it German Natíonal Reports
ín civil Law lu{auersforthe x[Yth congressof comparative Law (ed. Jayme,
rgii).
DnonNlc/Ðoprrer, 'Die Nutzung der Rechtsvergleichung durch den ¿"irí*"n"n
Gesetzgeber', RabelsZ 46 (rgïz) zg.
Durorr, 'L'Importauce du droit comparé dans I'enseignement juridiqu e' in: Recaeil
,
des travaux suisses présentés au IXe congrès ínternational de droit compàré
eg16) zt.
Evrxr.rNc, 'Rechtsvereinheitlichung durch Richterrecht in der Europãischeu
Gemeinschaft', RabelsZ 5o (1986) r93.
- FEnro, 'Die derzeitige r age von Rechtsvergleichung rurd IpR in der Bundesrepublik
Deutschland', Z/RY zz (r98r) 86.
F¡.¡Nxnx¡rnc, 'critical comparisons: Re-Thinking comparative Law', z6 Haru.Int.
L I 4rt (rg7).
Gnossrnlo, The Strength andWealcnessof Comparative Law (r99o).
"Vom Beitrag der Rechtsvergreichung zum deutschen Rechf, acp rg4
$9g4)
-, 289.
Htr,t, 'comparative l-aw, Law Reform and Lægal rheo ry',9 oxf rl-egsrud. rrr (r9g9).
IIrnscH, Rezeption als sozia ler Prozess (rglt),
J¿coss, 'The uses of comparative Law in the Law of the European communities,
þeal ËIistov and comparative Law', ir Essaysin&onouroftLieralþ (ed. Flender,
1990) 99.
JuNrcsn, 'Rechtsvergleichung als Grundlagenfach' , JZ r9g4,9zt.
13
 The Functions and Ai¡tts of Comparative Law 15

14 General Consideratíons
Transplants and Law Reform" gz LQRev' 79 {1976)'
KrnN-Fnsuxo, 'on uses and Misuses of comparative Law" y Mod' L Rev' t lvr,,rsoN, 'Iægal
.ñ*htsvergleibhung als universale Interprerationsmethode" Rtbelsz t5
(rytÐ.
¿ï;;",
Zweig¿rr (lg8l) +8t' (it).ls/so) s.
f<ài"i-"C.*"ineuropõisches Zivilrecht', Festschrifi
:n".rrævergleièhung und Rechtsdory"tjk" RabelsZ s4 $g9o) zo3'
Juristenausbildung', ZEuP r9g3' 268' i
-, 'Rechtsvergl"i"lruog unã e"meiigutoqaiscúes Privatrecht" in Gemeínsaneshi'
-,'Èuropãiscte (e<t' Mriller-Graff t993)'
vatrecht ín der Europaisihen Gimeinschafi ' beyond dispute todayi that the scholarly pursuit of comparative law
has
-,
K;ä;: :Co*p"r"ti"t Law for the zrit Century' New Horizons and New Tech- Ir ier
a verv simple consideration'
nologies', 69 71lrlL Rev' t65 Q99$' ;;;; íigtm""ñt functions. Tþ;,gngtgg.l.fr;m -ii
tiiriits itself"to'phenömena'
,l-rr,, ,r' siudy deserveq the name of ä sciêlcé
I'ehren (t975)' rf
Krorxor.urx., Interndtionoles'¿ìii"ian"¡t' Aþemeine der Rechtswissen*haff , fZ
KûsLr*, .nechtsvergteiciuJg Crunat.g"iairriptio withiïits natio¡iäi Uöùä¿àäe3l^foi älbiig tilr;dlâwvers'weré-còñténi-
^i. ^J*toe
Ur"i"uofur in thÍs sénse,¡ anä'tö"sóme extent they are so still' But such a
tg77,tr3. to
Legal Culture" in LrwsoN' Tåe
LrwsoN, 'Comparative Law as an Instrument of oositiou is untenable, and comparative law offers the only way by
which
&mparíson Selected Essays lI 68 (tglù.' l'uu., *o become international and consequently a science'
.L,utilisation ¿"ã"it par les tribunaux', Rev. i¡tt- dr' comp' 46
Lece.rrs, "r*p;;¡
(rggÐ -'óle
t¿t- ln the natural and medical, sciences, and in sociology and economic.s as well, dis-
coveries and opinions are exchanged internationally. This is so
familiar a fact that
Lr;;í, Auslegung angeglicbenen Rechts" 'l"Z t992' 593' physics or'Brit-
;n""U,rn".if"i"fr""e r"¿ europãische Recbtseinheit', IZ t99r, 529. it;u .*y
to forget its significance. There is no such thing as 'German'
;ñ; .co*p"..iäi;; are international,
M.rnresrNfs, À suuject in search of an Audience" 53 Mod. iri..rt icr"Uiot"gy or 'Cãnadian' geology. These branches of science
LReu. t an<l the ütost one can say is that the contributions of the various nations to the dif-
Qggo)-
ierr:rrt departments of world knowledge have been outstanding' ave:¿ge' or modest.
MrrrtNr,.AutonomeundeinheitlicheAuslegungimeuiopãischenintemationaien as Roman law
;t"lìñ";;chr, RabetsZ 45 Q98t) 427' . L- ñ--^.:^ã Sur ur" iosition in legal science is astonishingly differcnt. So long
International Law"
^Fr-+aña,'^n
Law in the Practice of Continent of Europe, an international unity
vox M¡nnr¡, 'fn" nol"îf?ãá;;;út; *". th" eìsential source of all Jaw on the
oiàu'. legal scieuce did exist, and a simila¡ unity, the unity of the Common Law,
Festschdft NeumaYer 479 (1985)' g?' Røbelsz "o¿
echtsverbesserun c.an still be found, up to a pOint, in tåe Eaglish-speaking world. On 'the European
-tegal
Nsur¡.rus/t(nopHollER,'.àá"ñi""r"¡oheitlichung-R ur¡ity begaa to disappear in the eighteenth century as
coirti'e¡rt, however,
45 (r98r) 73. und die funktio- put in the place of traditional Roman law. The consequence
Nruv.lts*, 'Fremdes Recht aus Búchern' fremde Rechæwirklicbkeit g¿ (I9Zo) 4¡¡ '
J
naiional codes were
look-
nelle Þimension in den Methoden der Rechtsvergleichung" RabelsZ was tfuat lawyers conc€ntrated exclusively on their own legislation, and stopped
_, .Rechtsv"rgt"i.t rrog .ìlü"ì",n"ft"f".ft an dJutschen Universitãten" Festschrífi ing over the border. At a time of growing nationalism, this þal narcissism led to

Zweigert (198I) 5ol. priO" the uational system. Germans thought German law was the ark of the
io
de la Cour de justice des Commu- ãovenant, and the French thought the same of French law: n¿tional
pride became
Prscrrone, 'Le Recours dans la jurisprudence comparaison des droits'des Et¿ts
nautes Européeno". ¿ ¿o oo.-ä déduites de la the luu¡:iark of juristic thought. Comparative law has started to put an end to such
ínt. dn comp- lz (tg$o) lTl ' narrov¡mindedness.
*t" American t'aw School Curriculum" I
membres', Reu.
Pouxo,'The Place
"rc"äpãtiti"iL*ã þ*
TLl. L Reu- 16r (t934)'
to Comparative Law" 39 Am I \^d{)ì¡
Slcco, 'Legal Formants, A Dynamic Approach
Comp- L. 3$ 099r).
lhb
au semicc de lø-connaissance du droit (tggr)'
IÃ comparaßonjuridique dtra¡,Lv
¡nçe¿iníone al iliriuo comparato
(5th edn' t99z)'
-,
--,
Scnrnurts, 'I¡gal r¿uãtion'in rutà-pe" 3o Cmn $kr' n' nev
g (tggù' **,hr
Söur.rs¡Ncrn,
..fUe nofeîith"iS"ri" the Teaching of Foreign and Com-
ðourse" ir her:ausr,: the different systems of the world can offer a greater Yariety of solu-
par"tiv" Law', An-J'Comp'L 616 (197t)'
19 tions tha¡r could be thought up in a lifetime by even the most imaginative vulì*#
NlvuLReu' r98
E. SrrrN,
.ur"", frriros.r--ai¿-Ñoo.rr", ãi ôompat"tive Law', 7z jur:ist who was corralled in his own system. Comparative law is an 'ecole
äe vér-it,ír' which extends and enriches the 'supply of solutions' (Zrnu.r.NN)
.Les perspectives de l,enseignement universitaire de droir comparé', .Fesr-
of critical capacity the opportunity of ûnding the
,^11å11; an<l offers the scholar
schrifi ZajtaY (1982) 47 9' 'better solution' for his time and place'
und Rechtnergleichung (r95Ð'
Uyrenr¡ovsN, Richterlic|íe Rechtsfindung
Hr o¡ìrþ dù f'r* ;{Ura'inûùq./üL btq'^t{r^.$^¿ ir,.h-
16 General Consíderations
Like the lively international exchange on legal topics to which it gives rise,
comparative law has other functions which can only be mentioned. here in
the briefest way. rt dissolves unconsidered nationai prejudices, and helps
us to fathom the different societies and cultures of the world and to furthèr
international understanding; it is extremely useful for law reform in develop-
ing countries; and for the development of one's own system the critical att!
tude it engenders does more than local doctrinal disputes.
But four particular practical beneâts of comparative law cãll for closer
attention: comparative law as an aid to the legislator (Ir); comparative law
as a tool of construction (IIf; comparative law as a component of the cur-
riculum of thè universities (fv¡; and comparative law as a ôontribution to the
systematic uniûcation of law (v), and the development of a private law
common to the whols of Europe (Vf).
II
lawsl
ln
the form of general studies or of reports specially prepared on the topic in
question.
Ever since the second half of the nineteeuth century legislation in Germany ]nas
been preceded by extensive comparative legal research. This was true when corruner-
cial law was uniûed, fi¡st in Prussia and then in the Germa¿ Empire, and also, after I
the Empire had acquired the uecessary legislative powers, of the uniÂcation of private . .
law, law of civil procedgre, law ol bankruptcy, law of judicature (courts systeå), and ..
criminal law. Account was taken not only of the different laws then in fórce in Ger-
many, including the French law in force in the Rhineland, but also of Dutch, swiss,
and Austrian law (see corxc and Dör.r-r (above p. 13 and below) As to the present,
).
it can be said that no major legislation since the Secoqd world war has been under-
taken without more or less extensive research in comparative law. This is true not
only of reforms in German and family law (see Dnorxrc/Dorrn* (above p.r3)),
but also of numerous other laws, such as the law of commercial ageots, company
law, anti-trust law, the introduction of the dissenting opinion in the Federal 'lt
constitutional court, the draft law of privacy (admittedly never enacted), the law
for the compensation for victims of violent crime, the law regarding changes of
sex, the law on legal advice for the indigent, aud much more. Comparative legal
studies also underlay th€ recent proposals of the commission for the Reform
of the Law of Ôbligations set up by the Federal Ministry of Just-ice: see, for insrance,
the submission of the Max Planck Institute for Foreign and International Law on
'Modern Development of Contract l-aw in Europe', published in Gurachten
und vorschldge zur iiberarbeítung des schuldrechts I (ed. Miuistry of Justice, rg8r) r.
Here one of tbe motive forces was a concern to bring German law closer to that of
other European countries by importing the rules of the Vienna Corivention on
The Functions and Aims of Comparative Law f.l
International Sales (CISG), itself based on comparative research.-In Greal
Btritttín, too, legislative proposals are grounded oo comparative work. One example
is the Pearson Report on Civíl Liabílþ and Compensation for Personal Injury and
Deøth (*e belbw p.'669), and though England has not yet felt able to follow the
Unired States, France, and Germany in adopting a 'à¡[trt of privacy', a 'droit au
resp€ct de la vie privee' or an'allgemeines Persõnlichkeitsrecht'(see below p. 7o4),
foreign law has been consulted on tåe question of its introduction. The Euglish
Law Commission likewise refers to foreign law whenever appropriate, as it did
whcn the question .was whether to confer contractual rights on third parties
(sec below P, 469).
. legal- The experience
of other European countries them choose the solution which best suits
their own legal traditions, overshadowed for much of the century though
they have been. Even outside Europe states which used to be 'soviet repub-
lics' a¡e finding that foreign laws can be of assistance in framing domestic
legislation, as have the Republic of China and many of the developing
nations in Afríca.
of course one must proceed with intelligence and caution. If comparative
analysis suggests the adoption of a particular solution to a problem arrived
at in another system one cannot reject the proposal simply because the solu-
tion is foreign arl'd, ípsofacto unacceptable. To those who object to the .for-
eignness' of importations, Runolpn v- J¡rnnrNc has given the conclusive
answer:
'The reception of foreign legal institutioûs is not a Batter of nationality, but of use-
fulness and need. No one bothers to fetch a thing lrom afar when he has one as good
or better at home, but only a fool would refuse.quinine just because it didn't grow in
his back garden.' (GeístdesrõmischenRechts,Part I (9th edn-, 1955) g f.) .-_.-* -
Whenever it is proposed to adopt a solution which is to be
, two be
ln
to. t
may well prove to adopt, af
any rate without a solution tried and tested abroad because of
differences in court procedures, the powers of the various authorities, the
working of the economy, or the general social context into which it would.
have to ñt.
The 'reception' of foreign law and the question whether and under what circum-
stances it can succeed has provoked an interesting controversy between K¡,¡rN-
Fn¿uNo and WersoN (above p. 4-r5). (See also S¡erN and Hrnsc¡r (above p. r3-
t4), all with further references.)
 1 wffi--
rr.{Lr.ar,rìi^,{t.С¡l¿ #
Jri*.r¡¿. "i'u*" tnln* ''.F
The Functions and Aims of Comparative Law r9
r8
A.s may be seen from the law reports, comparative law has often helped
üI to clarify and amplify Ger¡nan law, though it is true tlat compara-
\:: ttr*
,i"u ta* arguments are usually deployed in conjunction with normal metå.ods
"ootfi
,¿'

l;årh", oractica!-q5Ë.qi.,no*p"."ii"" i"*: lies in the intqrpretatiqn of":

sav nothing' ;f iuterlrretation, and thus serve to confirm and support a result reached by a
#;il;;ì
tã;"ü"g rirì¿r;"¡i"tì;;'on this matter the standard textbooks iru¿itioltut route. One excellent example is the development by the Bundes-
wherher a law should be given the mean-
witu trre'ät¿ quesrion o.;rAtrnof of the principle that the victim of an invasion of the'general right
";iy
i"g ruîu"i"d to it by the Ëgislator 1t the time of enactment, or whether the
not be ãf personality' may claimjdamages at large (see Ch. 43 below), a principle
,ütor", treated.as tea¿ing a-kind of independent life",9[-its' 9q", P3I l
w¡ictr tHe Bundesgerichtst'of sought to defend against criticism by saying
'J:i#t::'"'#1"#'î+tþffi"#lå: that
ri:r:"J:#**l*l:*'*,"'r*;ffi
ttrat such foreign material cannot be used in
l
:

.In alürost all the legal systpms wþich, like ours, put a prime value on the individ-
fAfm!i!;:¡"f"Uã":{t is'tleâi as the proper private law sanction
iï'üà"iuiuocal national rules: the principle of respect for an t ua.i, clamages for pain and.su.iffering are regarded
for invasions of the personality. The availability ofsuch
damages does not advcrsely
system' But
unambiguous enactment must not be infringed in any legal
:

tire freedom of the press, which those systems also treat as of fuadamental
the question may be raised when the construction of a rule is
doubtful, or -:- afJ¿,:t
which the judge must âll' The purely ,f' importa¡ce, so the objection that tåe award of such damages in cases of invasions
where there is a lacuna in the system
ol persolality improperly invades or unduly imperils the constitutionally
guaranteed
our are insufficient, and it is unconvincing to :t
substance' (BGHZ 39, Iz4, t3z). In another
logical techniques at disposâl !-
fre g,lom of the press is clearly without
o'r the argumentum e contrario. T]ne rule applied all ove¡
plãy with decisiorr the Bundesgerichtshof held that the claim for such damages was limited to
the Continent which deterrÃnes how .a judge must find the law when all
"ouiogy ca:;es where the invasion of the right o[ personality had
been particularly serious;
else fails is formulated in the Swiss Civil Code, art' r
pars' z and 3' as dre Court observed that suc$ a lil4itation 'is also to be found in Swiss law, which
follows: is ¡rore concerned with legal protection of the persouality than the BGB (sec
af1.. ¿¡g I oR)' (BGHZ 35, 363, 369). In another
case a seriously disabled child who
cuslor.Â?ry iaw' fail-
no stâtutory provisions can be fcund, the judge must appty
'If n"ooü r¡"ver have been born at all but for the negligence of its mother's doctor in fail-
to the rule would' were he a legislator' decide
irrg wti"¡ he musidecide according irrg to detect iæ probable condition sued the doctor for'wrongful life'. I'¡ dismissing
he
judge must follow accepted doctrine and tradition.' i
to"adopt. In so doing the
tr thã child's claim the Bundesgerichtshof referred to McKay v. EssexIIA [Ig8z] QB tl6ó
gaps in the Swiss and comparable American decisions (BG.IJrZ E6, z4o, z5o f .). Further examples from
The principal thought underlying this provision is that
io tñe spirit of the national, that is, the Swiss, German courts are analysed by DnoaNtc (above p. t3)'
Civil Code are to be nU"¿
law. But will this do? If the judge rl tq'.dçci¿e'in''the'Yay !e.'wo"lrl
htlt'., In general it must be saiS thai comparative law has a much gfeatet role to
:
¿"J¿"¿¡"¿"n".æ"n;aJ-çgsraior*îl!üsi,r*'e.not'¿sk: how-does â'modern
le-. i.
play in the application and development of law than the German coufts yet
r:"Aj;ìãrrì;¿Urnis.AäisiônsliNo* we have already seen that, to a great ã[orv. 'I'he situation is rather better in ottrer European countries such as
law' Thus'
f,ägr"", the modern legislator takes his solutions from comparative Gi.eece and Portugal, and above all in Sw'itzerland, where the decisions of
thankstothegreaterbreadthofvisionwhichweobtainfromcomparative tlre lluudesge¡icht are reþlete with comparative law (see BGE n4 Il t3t
t"*, *" must iiclude the comparative method among the criteria tradition- a-aij TJvrenHovEN, above þ. r4¡r. Ttre French Cour de Cassation is certainly
alty'applied to the interpretation of national rules. There may
still be ques- judg-
cleaf to any such arguments, but this is because it haS adopted a style of
tions about how far ttris can and should be done. For example, should one, merrt which precludes ariy jreference to considerations of sociology, legal his-
in using the comparative iaw method of interpretation, consult-only.reiated tory, policy or comparative law (see below p. r4). It is different in the
,yrt"*í ut" thosã of Switzerland and France, or âlsojudge systems that are quite Cor¡Ilìon Law countries. Courts in England, Australia, Canada, and other
diff"rent in style, such as the Common Law? Can the choose whichever comfuonwealth countriesi have long made reciprocal referenc€ to each
of the foreign solutions seems to him the besq or can he choose only a solu- othr:r,s decisions and are now invoking continental law to a remarkable
tion which is common to a number of other systems? May we' with the help degr+e.
reach an interpretation of our legal rules which is inde-
of comparative law,
of our own T,tt White y. Jones
[tggSl z AC zo7 the question was whether a lawyer had to pay
;;ili;i, p"rhaps even at odds with, the conceprual struct're for tl¡e irarm suffered by a third party as a resuit of his incompetence in following
of the last one' should
iy".*Z fn"s" qo"stions, with the possible exception thr: instructions of his client. The opinion of l¡ro GO¡T contains a marvellous
re""io" a bold rather thán a ümidãnswer (see further in Zw¡rcenr
(above
co{parative treatment of the problem, with reference to the German doctrine of
p. 15) ).

ù
zo General Consideratìons
The Funclions and Aíms of Comparatíve Law zt
contracts with protective effect for third parties. (see, too, the opinion of srevN ¡-¡ in
the court of Appeal ibid. at 236). In the event the House of Lords, like the Bundes_ Tbe situation is different wben uniþrm laws ate being interpreted. Such
çrichtshof (see BGH JZ 1966,14r, noted by Lonnuz and BGH NJWtg77,zo13), laws normally result from international conventions, governmental co-
granted the claim of the third party, but in tort rather thaD contract (see below operatloû, or supranational or international legislation, and since the under-
p. 614). see also l,ono Gorr in voolwich Buitdíng soc'y v. Inland Revenue commls lying arm is to unify the law, their construction anä development must be
[r9g] AC 7o, 174 (claim for restitution of 'taxes illegally exacted, see below p. 574); geared to this goal. This means that when a national judge is faced with a
Br¡¡c¡r¡u MR in Interþto Pícture Library v. stiletohsual programnes t¡ggg] i Ali uniform lar¡¿, he deploy his old national rules of con-
ER 348' 352 ff- (good fairh in negotiations); Lonp Gorr in Hendersoi i. M"u"n but
sj¡ndicates [tsg¿] ¡ All ER 5o6, 523 ff. (concurrence of claims in contract and tort, !::n.
lor
below p. 618); BrNcu.r.v M-F'in Kaye v. Robenson ft99r1 FSR6z (invasion of priv-
see
must look to the foreiga rules which formed
acy' see below p. 7o4). see also the decision of the supreme court of canada in law
the basis of the provision to be applied, he must t¿ke account of how courts
Norsk Pacíftc steamship ca v. &nadian Nationar R1t ft9921 r scR rozr, which referred
to numerous foreign decisions on the question of liability in tort for pure ecouomic ¿nd writers abroad interpret it, and he must make good any gaps in it with
loss. In a note oû this decision Menr¡srNrs makes a te[ing plea for õourts to m¿ke general principles of law which he has educed from tie relevãnt national
.more use of arguments from comparative law (rc9 LeRev.s (1993)).So,
roo, von legal sYstems. \
BAR says: 'what a step forward it would be if the sr¡preme courts of the ståtes of
For det¿ils see Lurrrn (above p. 4), especially eo4, K¡opsollrn
the European union 4ccepted the idea of persuasiveauthoríty, if they felt bound to
(above ", aO.hard andand
p. l4) 258 ff., 218 ff.,298 ff.-This is undoubtedly demanding task,
inquire whether the case before them had not already been decided somewhere else
and it may be beyond the powers of national judges who have to apply uniform law
in the union, and if, supposiug there were a sort of "dominant European view"
only very seldom. The only sure way to avoid national divergences in the construction
on the matter, they had to say why they were prevented from adopting it by the pre-
and development ofa uniform law is to grantjurisdiction to an international court.
setrt state of their own law! If our courts were imbued with a Europeaa spirit, tleir
For the member states of the Common Market the Court of Justice of the European
reasoning would be greatly enlivened, and if the law, like other disciplines worthy
communities is the leading example: it has already used the method of comparative
of the name, were op€n to the world, its prospect of recapturing the iniellectual elite in a large number of decisions with great success. on this
legal interpretation see
of the country would be much enhanced.: ('vereinheitlichung und Alagleichung von Brrcruerc.t, Duc, Pesc.tronn, and M¡.nrrwy (above pp. r3-t4).
Deliktsrecht in der Europãischen Union' , ZÍRV 35 (1994) zzr, z3t.)
' when judges of a superior court are faced with a difñcr¡lt problem of prin-
ciple it is surely wrong for them to disregard solutions and arguments which IV
have been proposed or adopted elsewherejust because they happen to eman-
-: --.:
ate from foreign courts and writers. Fresident oonnsry of the Bundes- Í:1-f
r.;Gomparative law also \as an,important fuuctio¡1 ¡n,iegal e¿riêatiònj:n
gerichtshof was quite right to say: legal education as in legal science generally it is too limiüäg smugly to study
'iu giving his opinion the national judge is not only entitled to engage with the only one's national law, and for universities and law schools rJtä u"t
views of other courts and legal systems; he is also entitled, when applying his own time when world society is becoming increasingly mobile is appallingly "t "
law and naturally giving full weight to its proper construction and d.evelopment, to unprogressive. comparative law offers the law student a whole ,r"* di*".r-
take note of the fact that a particular solution conduces to the harmonisation of sion; from it he can learn to respect the special legal cultures of other
European law. In appropriate cases tå.is argument enables him at the end of the peoples, he will understand his own law better, he can develop the
critical
day to adopt the solutions of other legal systems, and it is an argument he should use standards which might lead to its improvement, and he will learn how rules
with increasing frequency as the integration of Europe proceeds., (.Itramronisierende oflaw are conditioned by social facts and what different forms they can take.
Auslegung und europäische Rechtskultur,, ZEup t994, r, z.) What he learns in this science, as in others, will prove usefrrl in practice
too
Here we need only mention how useful comparative law is in conflict
Taking comparâtive årguments into account certainly means more work of laws,
for the interpretation oftreaties, for those who are involved iu international
for the judge, but nowadays, thanks to the researches of comparatists, there
are many areas in which foreign material is much_-more accessible; in any
or administration or concerned
cas€, even on the continent where the principle iuËärlriòi¡fr",iíiiiat.'obtáins, thê
court can look to the parties to proffer suctr matêäãt änd if necessary insist
that they do so. is most importa shows that

.t
Çln \¡cfij\ût (tuù^ui e,b *G 4 .À- Ì¿-
t*Lùgr¡ gifiu.
 '¡ The Functions and Aims of Comparatíve Law 23
Gener a! C onsiderations
in the faculty is' or how well tåe student performs
teaching
provideó an effective antidote to uncritical
faith ariraative the
several possible solutioûs; it il especially if he studies abroad' If this is ever
what is often presented as pure natural äffi; ¡is time at university,
in legal doctrine; ¡t t"ulil"t*- that and legai education. must be 'deregulated', so that, Iike
ilffi;g, in Germany*oild,
sort as soon u' ont crosses a frontier'
Iaw proves to be nothing of the are essential in {i
:i"äilä;se in the examinations are conducted by the university
it keeps reminding "tliti*ftife becomedoctrine and categories frnally acquire some freedom of action
¡.ot by tfie state, and law faculties
í!.
tã the functioning and j
ancl
any systeÉ, they can t;;;;;"
irrelevant other'
games' to compete with each
degenerate,iuto futile professorial ãriã u.
efûcacy of the law i" ;ti;;i "fti"""
' z. Despite all this, *ã the cousiderable improvement in The ProsPect of any sucþ
is still poor: with a few honourable excep-
are in thrall to the practice of examination
.:i:
"t*f'Ustlnding by comparative law in the university dons the ministries ofjustice
the
the last few decades, th;;lla* t*"pied i hâve uo interest in getting the systcm changed' For
b! úe st¿te' and most
curriculum is still rather modest' relief one may bave to look,
1n the European Union. Under
varies quite widely from university to legal services or establish a
In Germanythe teaching of comparative.law to thr: Rorne Treaty foreign
a[ universities offer a general '[ntroduction of
a
the same footing as German
university. For the *"*å;;i¡ná
be
of the legal systems young with a good legal education câme
comparative l-"*' '"ti"i'î-uãàiuoo
to giving an overview of foreigners
the world, covers the t'"i" ãr tu" discipliae and its relationship with politically possible to overcome the opposition of the
-i[;J.ies ""Jã"ino¿t less cornmon are the :even more regretta ble indifference of manY law
;;"; with aî int"tntti"nal legal flavour' Rather |:
i'tt' u' French law' a group of related
I
or
lecture-courses on a Partäü; ffi 'y"t*' faculÈies.
where such courses are on offer' it'is
legal systems, such as th" ä;;;;Lw; "v"o in' say' Engtish law' or French law'
noticeable that universitîes-;;"d
i; 'pt"iatizt 3.trnordertoseehowltheteachingofcomparativelawwillandshould
institutionsi'in wh¡ch one tries to
see what we must look at'law teaching as a whole'
Even less common i, ,h":";;;Líof
deielop,
-'-n,"ä,i".I
them' do io a particular area of law' such feature of tþ academic teaching of law today is the constant
all the relevant legat syste;, ""-ã"ttf "f with in the past could
it compa.ratively from beginning to end' irro-"r*-in ifre bulk of thé material to be learnt. Students
as contract or compaûy f"*,'"o"-*"" cÔunterpart in the
each national ,"1" b"i";;";'il """¡""tru"'*ith
its iunctional
just acceptable' i;; ;" rhink like lawyerþ byody criminal law, which has notbutincreased
concentrating on private law, nowadays
so
of comparative law is perhaps to maste-iot
other legal systems- nrrt ir tl.. teachin! to vital question of the place of it i:; necessary
and ¿dministrative
the
;;;h in volume, but also ithc vast bulk of constitutional
the picture is wretched ¡n¿""¿ *t'"o
óo"
"o*"' law has never been a compulsory law. It is no longer possible
comparative t^n io "'oîin"i"ï' èã*parative are oc¡asionally set as a test of lr*,lrri"*, law, labour law, and social security
examination subject, io á.ur" law andlegal sociology into a law course which already
.e"n"rd;u-;fi"i lulto."'.'e student will
";h;;ä;i";aat'questions admittedly be examined ia "o*p"ruiiu"
the c¿ndidare,,
of elective subjects', though rot much hes to contain so much-maqeriaf' ,-
tbe subjects,ru¡cn r"tl*¡1"ü;i;;s;""* t'-'it;;r;
.ttris it:foltows tÀat we mu st i4tegreie cotmPqrgtive lq.w'in'io,the teacfting ;
weight may bc given * it'î"iã-ãt"y it t¡i. t¿n¿"' comparative law is regrettably
to ,¡¡ natio,rat [aì. That means that the problem being studied must be set in
voked to family law o,' å; i;"
;iri""orioo in a. singre oprion. It is smalt comfort
t"i'"i"uo"t the provincialism of legal t[e contexi of the solutions obtaining in the most significant legal systems;
iearn that elsewhere it E;;; ""*piti"".*t
see the t";;t ;; situation -in Belgir¡m (Meulders-Klein)' France theu one must make a c¡itical appraisal in order to determine which solution
is best suited here and tow to the national society as it is. only in this
education; 'h" Italv (sacco)' and swiøerlaud way
(Mouly), Greece (Y.k#;;, ät"tì-nit"i" Çor^o¡ical in the
int' dr' comp 4o (te88) 7o3' can rlne highlight the chaiacteristics of the solution which is accepted
ì;;;ñ;ú: f"uritnø in Rev'
p'sitive law, ãnd at the, same time enco'rage the reforming spirit and
up to comParative law is an
Although the need to open legal educatioû obstacle'. In other European ãevelop u ,"or" of how the law can be improved. Only in this way can it
urgent one everywhe'",-C"ã""ifu""t:."3q"" to decide what subjects to be shown that in certain areas-such as contract law, tort, and company
are fairly iree
countries individual !¿i¡¡-¿¡ ius commune for i all Europe is beginning to develop or already
'u;iãtú them, i! ûecessary, to the changiug world'
teach and examine ""ã'rå-"ã"p,
Law facultie, io c"*ì"î ã;;'
h";; this freedoá' and will never have it ed$ls.
[t follows from this that a textbook of comparative law should not try to
w-hich depriv"t tl"i--"^?,l.initiative
as long as they,"-oiîî¿""n" "t"" láwvers are examined bv the stuff t}re student full of further foreign legal data; it should rather lay out the
in this area, namely;Ëttöä;["t*t-t"-tlte aknost in the whole world' clifl'erent approaches to a problem, state the critical arguments which illu-
in-Europe'
state. Germaoy i' tnJot'if-"ãì"ttr ti" "o¿ of a candidate's legal minate it, and then indicate which is the best solution here
where the state acrs ;"."*;;i; "í.-io"r. "i in detail þ tl'T: a.ncl "oã-ènlio".r
now. This involves that 'national' textbooks should be rewriiten in
whose conteût is prescribed ttre light of comparative law, and that in the long run all teachers of law
studies in an examination or lm-
difference how good' wide-rangrng
Under tlis system it-*uLt no
24 General Considerations
should Easter the comparative method so as to obtain the necessary infor-
mation for themselves.
Asearly as 1934 Roscor Pouno expressed, more precisely and tersely, the
.
view here put forward:
"-'what is aimed at by such a course
[sc. in comparative raw] may be done more
effectively by a group of teachers who are conscious of the possibilities of compara-
tive law in their daily teaching and know how to realise thàse possibilities.
Hence I
suggest that the law teacher of ¡he future should ground hirnself in comparative
law and should bring out continually other modes of treatment of the questions
takgs up from the standpoint of our law,
he
,Ëo*,, by the civil law and. the modern
""
codes, just as he canvasses the modes of treatment in different English-speaking jur-
isdictions. I suggest tåat he continually seek to lead the student by coo"r"t" examples
to appreciate that there is no one doctrine or rule or institution or conception for
every case in every land in every time. ln other words, I believe comparativã hw will
best be taught, for the puq)oses of our professional instruction, in the course of
teaching the law oftl¡e land, except ¿rs graduate studènts are able, after due training
in the civil law, to go deeply into somã of its particurar problems' (above p. r4, p.
t68). such'integrated' law teaching has been opposed by scurrsrNonn Nsu-
ueYnt (lÈstsclrrtrtzweígert 5o7 f.) and defénded afresh by Körz (-Raåalsz"od 36 (rg7z)
s7o ff.).
tr
^of I-ary- Concept and.. Functioìni
.. Uwfcg.tiòry
The ûnal function of comparative law to be dealt with here is its significant
role in the preparation of projects for the international unification of law.
The political aim behind.such unification is to reduce or eriminate, so far
as desirable and possible, the discrepancies between the national legal sys-
tems by inducing them to adopt common principles of law. The rdethöd used
in the past and still often practised today is to d.raw up a uniform law on the
basis of work by experts in comparative law and to incorporate it in a multi-
partite treaty which obliges the sigaatories, as a matter of international law,
to adopt and apply the uniform law as their municipal law. For states which
are members of the European {Jnion,.the.harrnonization of iaw by supra-
national means iCo*-,roity guidelines dir;;iuo) ìr-.f ;.-i""reasing
significance. ""d
Uniûcation cannot be achieved by simply conjuring up an ideal law on any
topic and hoping to have it adopted. One must fi¡st. find what is comrnon to
the jurisdictions concærned
rncorporate, in the uniform law. Where
there are areas of either
and more easily applied than any of the existing
ones. Freparatory studies in comparative law are absolutely essential here;
. The Functíons and Aíms of Comparative Law 25
c/ithout them.one cannot discover the points of agreement or disagreement
in. the different legal systems of the world, let alone decide which solution is
the best. A model of such a preparatory study is EnNsr RenEL, Das Recht
des$arenkaufs I (t936: reprinted lqSZ); II (1958), which was of vital import-
ance foi the unification of international sales law.
. t, Thà aävantäeé bf rininê¿ 'iäç is rhár'ii mäke3-ih..tðrnätioääi'iéeàii Ë.:,'
iËËi.í"'iiä;å;ä.;äi";:"ñ'i"äï;:ïiåiJ,i:Häåi"ìiåä1,;iËii:f
vatë-iiternational law and foreign substantive law. Unified law thus reduces
the legal risks ofinternational business, and thereby gives relief both to the
businessmao who plans the venture and to the judge who has to resolve the
disputes to which it gives rise. Thus unified law promotes greater legal pre-
dictability and security. International treaties for the unification of law often
try to obtain the accession of all the states in the world, but none has yet suc-
ceeded. All unification of law so far has been limited in its geographical area
of application, by force of circumstance ¡ather than by design. Sometimes,
however, schemes for the unification of law are designed to apply only within
a limited area (regional unification of law, for example, in- icandinavia or
the Benelux countries; here one can include also the rapprochement or har-
monization of laws envisaged by the Treaty of the European Economic
Community).
Multilateral treaties are very difñcult to achieve and rather clumsy in
operatiou; furthermore, their results in the ûetd of unification of law are
not very satisfactory (see 3 below). Accordingly, one must think of alterna-
tive means of achieving the goal. One way would be to produce model laws,
a method which has been used for the internal unification of law within the
British Commonwealth and especially in the United States. This method is
less heavy-handed since !he..adgpllop 9l guch-laqq .b¡¿ the. different countries
is a matter of r_e_co_i¡mendaú91,
I¡!þ:{".!þ+.+,þç opligâ11og i
other methods have been proposed by RrNÉ D.wro in his encyclopedia article: for
example, the creation of a new and universal iuscommune, applicable to international
relationships to which national systems of law may be insufñciently adapted.-Devro
also urges a more widespread and international use of the device of Resøtements of
the l'aw, as practised in the united states. Every several state in the united states
has its own private and commercial law, and the legistative competence of the
Congress in Washington is rather timited. Nevertheless the laws of the several states
have a great deal in common, thanks to the common Law tradition. This common
law in each principal area oflaw is set out in a series ofbooks, called, Restatements,
with additional volumes which give the deviations in each state (see below pp. z5r f.).
welcome though any idea is which tends to the greater harmonization of
laws, overall the most suitable method for the immediate future seems to be
that of modellaws, provided that they are carefully drafted. on the founda-
tions of comparative law.

{\f*,^r* .j"1,.^,*,x-" Ð uuþtiu. d^a,,ft{x\ e\p*,vt

 The Functions ød Aíms of Comparatíve Law 27
26 General Considerations
. ..'-2.': .'i:

Runningparallelwitåuniformenactedlawstlreremayariseakindofuni- !.1. LxPerieice;,

't'í- n," uåst. enthusiasts have planned to uuify the law of the whole world;
versal contract law, since in certain spheres of activity (such as wholesale
ûade in primary commodities, bankiìg, insurance' and
transport) there Ï..,î.1., rcalae that only the specific needs of international legal business
which are ttre same or similar "o1y
Íli'i't.sifv vast amount of energy which is required to carry tlrough any
. æ""tåf conditions or customs of business tbe
"r"
io ,i"oy countries. Here one might instance the Conditions of Business of I*ll*i t* tn" uniûcation of law. These needs are most pressing in the fields
for the Supply (less, for s¡ample¡ in land law, family law, and the
the London Corn Trade Association, the General Conditions ãii]*,","oti"ned above
oi ptuot and Machinery for Export, produced by the UN Economic Com- lä of inheritance), and çven there only for particular topics or speciûc
mission for Europe, á th. so-called Incoterms (such as ft! cif clauses) institutions' I
^'ïo, **, not undereitiþate
"t Documentary "19
credits drawn up the difficulties involved in tbe preparation
r

and the uniform customs and Practices on

anJ adoption of uniforrr ¡laws., Some of
of Commerce in Paris. Many observers think these have psychological causes'
Uyìn" International Chamber
oi th"r" rules as forming a nascefit, perhaps actual, Iexmercatoría of a new J,r¿, ur ¿irtit" of novelty pr pride in tåe natiónal law, others are technical
presupposilions, which only intensive pre'
and autonomous variet! (on the whole question see Srlcrxorr,
Rabelsz i¿iffrr"oor in legal concePts or
or political: national par'
s6(tggz) 116aodK¡opHol-¡-sn,InternationalesPrivatrecht(zndedn.lqg¿) -\*utorv studies in comparative law can overcome)
itt i :, both with references to tåe extensive literature)'
i:
io*"oti are reluct¿nt to adopt in their entirety the agreed drafts of
'!:l lessened somewhat if the uni-
: ; ':1" 1 .-.- -'_': :.41r'Ìj
tr
internationat conferences. These difficr¡lties âre
fotm to* is made applicable orily to international transactions. Then
each
?,: z :. Ar eqi' a ìd A. g ery.c ks"'.1
law has produced
:i
of rules in the same area. This is what happens
Since the end of the nineteenth century the unification of
,1,
\i staþ has two concurrent sÇts

its main results in private law, comrnercial law, trade and labour law, in ¡|rtr* t"t" of goods, for exf,mple: internal transactions are covered by muni-
and industrial property-law, and in the law of transport by rail' 'j. cipal law, white CISG, if adopted in the state whose courts are seised of the
""py¡gnt
,"i'"ri¿ air, as well as i. part, óf proc"dnrul law, especially in connection t¡
ìrr
.ätt"t, applies to 'international' sales, that is, contracts of sale between par-
witi ttre recognition of forèign judgments and awards. Even where the sub- ties v¡ith places of business in different states'
st;1ir" priváie law should not, or cannot, be unífied, it may be possible ro . tr{4ren ollifor laws are çppliqd by national courts, there is always the risk
achieve á ht.-ooy of outcome by unifying the rules of conflicts of law' and
t¡ that tå.e uniformity of law äpparently achieved in that area will be eroded by
thereby avoid differences attributable to the accident of the forum. its being differently construed and applied iu the different member states.
-r; ir'in private law in the widest sense that the world forces tending Tlús risk cannot be wholly excluded by even the most careful drafting. Just
towards tåe integration of law are at their strongest' . ¡.,
as iu any country a Supreme Court of Cassation or Appeal is needed to Pro-
The results alriady achieved by way of uniûcation of law are too numer- Í; cure thát the law is uniformly äpplied, so in the long run an international
ous to be tisted here (compare ZwrtcenrlK¡opnor-r-¡*, Quellen des
Inter- corrrt i¡¡ necessary to eûsuie the uniform application of uniform l¡aws. The
nationalenEinheitsrechìs, 3 vols. GSZI ff'))'The League of Nations and the
l'
uniforrr:. construction of the law of the Europeao Economic lJnion is
Unired Nations Org"oiãüoo hàve done much for the law of negotiable :i guaranteed by the Court of the European Communities (arts. 164 ff., Treaty
instruments and of arbitration, the Rome Institute for the uniÂcation
of Pri- ãf -Rom,¡, and it is to be welcomed that the member states have also entrusted
worked on rhe law of sà.e of to this court the power to interpret legal concepts used in certain treaties made
;;; L.* (UMDROIT, founáed in 19z6) has
gooar, the Hague Conferences have hålped in private international law, and pufr¡uânt to art. zz1,Treaty of Rome. But apart from a few minor exceptions,
îarious internitional organizations have advanced the uniÊcation ofthe
law i; lhi* is the only court so fàr with power to give a uniform construction to
Nations Otganiza' unif'orrll law. Until an international court is set up, the best tåat can be done
of transport, copyrigbt,;nd labour. In 1966 the United
is to procure that at least the highest courts of the member nations know what
tion resolved to set up a Commission for International and Commercial :

iaw G-TNCITRAL) chàrged with promoting thg.b3rngnization and. unifica- theii o¡rposite mrmbers have decided (see above p. 2o). If a uniform law is
Conven- beir.g di{Ierently construed in the different meraber st¿tes, it is impermissible
tion of it t"*ational tradã 1uw. Its greatest achievernent so far is the
Sale of Goods (CISG) concluded in !o irave recourse to tåe rules of conflicts law in order to detcrmine whether in a
iioo o* Contracts for the Intêrnational ;..
'ì particular case it is the law as applied, for example, iu France or.as applied in
ViennainApriirgso(seeVoNClruurxrn/ScrrlncHTB'tEM'Kommentar
Germany which is to control (aliter the French Court of Cassation in
|':

zum Einheiîlichen |JN'Kauftecht (znd edn' 1995) )'

Ii[acke, ltev. crit. SS $g6+) 264, and the Federal German Supreme Court,

'1..-,.^". -- ::.

^*"t-'*(r-
.,vìdfuL/ i¡r;sn-i/c' rç .t!

ffii J
'Ë
 z8 General Considerations
The Functions and A.íms of Comparative Law zg
IPRspr. ry62-r963 no. 44). If
the substantive law has been ¿nifisd, it is the
substautive law which must contror, and. not the rules of confl.icts it is also essenli{ that it be accompanied by progressive legal.scholarship on which
law. rn brief: 'the courts in diflerent countries can rely... . . Our mission.rnust be
unifi.cation oisubstantive law excrudes the apptication of private toieinduce in
international our jurisæ an attitude gf mina and a common way of thought which will enable them
law. until we have an international cou¡ffor the consiri¡ction of uniform
to do justice t9 t!1 u¡1!ea rules and apply them in a consisteat'manner' (.Jus com-
laws, the highest muuicipal courts should adopt as their own whichever
con- oune, nationale Kodiûkation und internationale Abkommen, drei historische For_
struction, proposed or actually adopted elsewhere, seems to them the best men der Rechtsvereinheitlichung', in r.e nuovefrontiere del dírÍtto (Atti del coagreso
and
proper one. di Bari) 'l', r7r,t9z (tglÐ).

It is signiñcant that the herald of this mission was a legalhístor¡¿¿. corNc

VI was ûot writing on'a tabula rasa or proposing anything novel when he
referred to a common European outlook on raw: he wal reminding us of
If barriers to trade within the European union a¡e to be ov€rcome, tegisla_ something we have tended t9.foræt, namely rh_a{,.right_up àtt"-"igit"""tt,
tion in the form of ratification of international treaties o, n"gul"tions
and ollut yryl :* ]d: ol¡s!1n"iti." 1 took r9*o!,.E*.op9 3"ro"¡ry qnjoy ar {ii
is clearly indispensabre in certain areas."Evetr,s",.it i. ,
;uuty g¡ regal ouuooK..und€r lhe iuscommune".codification then maäe its tri_
, pr.rectives i¡"i¿"r*olil:
.l\lte,ttertio:ed,y!"1!e¡ leg¡slation is really the best way ro " urnphal progress through- the nasc€nt nation st¿tes with the deplorable result
r., o.t^.E9r.9nean law. ""ify:,n"-;îiì';i,
Unification hitherto has been sporadic, impinging on spe_ ''
.¡.:
that lawyers stopped looking beyond their national borders. But t*o cenru¡-
citc points only, so that in some areas the resurt is a patchwtrËoioverlap- ies of legal nationaljsm have not áestroyed the fundamental unity of
\ìr Euro_
ping scraps of national and unified law with ill-deûned areas of .

pean private iaw, as research in legar history has demonstrated;

and different animating principres; far from simplifying the apprication
operation it Lu,
shown us that even the common Law of England was.affectei "lro
of by its con-
the law, unification of this kind has made it much more difûcult. t¿cts with continental legal culture
It is now i;
clea¡ that unified legislation can deprive member states and their courts l:
of
the freedom to alter and develop their law and introduce a barrie¡ to See Z¡vu*nv¡uN, 'Das römisch-kanonische ius cornmr¡ne ars
change crundlage euro-
which thwarts the adoption of much needed. adjustments at the national pãischer Rechtseinheit', Jz r2g2, g; scnwor.rN, .cibt es ein gemeiri"rr.o-pai."t",
å System des Privatrechts?' in Sc¡ru¡olrN (ú.-), vers un droit europlen
level. True, a state can always seek to have the uniûed law changed, !i
roirr-rilst ¡r""n
but it .'¡!.'
zumgemeineuropãíschenprívatrecål (rgg4) 33; scHULzE, .Allgerneìne
would take years of negotiation to obtain the agreement of añthe other RechtsgnrndsãÞe
und europãisches privatrecht', zãup tgg3, 442; Kwûr¡r,lRechtr"lot
states involved even if it were possible at all. :r e,r.op"
'!a und rõmisches Recht" ZEup tgg4,244; ZruvenueNN, 'Der europäische "iiïo
cha¡akter
The point is developed in Körz, 'Rechtsvereinheitlichung-Nuteen, Kosten, des en€lischen Rechts, Historische verbindungen zwischen
cluit iaw un¿ãmrnon
Methoden, ziele', RabelsZ 5o (19g6) r; BruneNs, .vorausserzirng"o *i
Grenzen law', ZEuP Í993, 4i Gonre/Moccrl, ,A ,,Revisiting:r.6¡ the
Comparison berween
der Rechtsfortbildung durch R.echtsvereinheitrichung', RabersZ Conúnental Law and English Law (¡6th_r9th Cenrui¡,,
r9.
5J(r986)
Moccre, 'English Law Atrirudes to thc Civil Lawi z ""tt i.'aA.-r4i tr*rl,
Accordingly people are now beginning to see that legislation is not neces- I t*5. Hirt. OT (rrrr),
H¡ru¡rorz, 'continedrar Law and common Law: Historicat Ët."ig;o'á,
sarily the ideal way to unify the law; it has costs as well as gains, and panions?' ltggol Duke fJ yol¡ Nöll, .The European co*-
they Side of tt" Èie'.fl"*, e
must be soberly calculated and weighed against each other. The law of Eur- 'i Few cor¡rmenrs from a co rinentar Hisrorian', in c-orNc¡-rrIõ"*
ope carnot be unified by sporadic texts. !\Ihat we need is to .Europeanize' und kontinentale Rechtsgeschichte¡ t"ãii,--¿r,s¡¿r"¡"
Forschungiprojekt ASSil i5; C"";iul .ao_-
L

the way lawyers think, write, and leanl- I-€gal -Eí1e

mo¡ Law and Civit Law: Eine überholte Unreischeidun àr, lz"r ,jy,;;8;'c"r"",
1>s' \
as 4u-oh, and
:- 'La civilisation de la common Law,, f.eu int dr. comp
are noril readier +S íriS, 5æ.'7r'

should have had .. TTr presents comparative raw with a chalenge. No longer can it confine
French law today do not turn exclusively on the wording of legislative texts, itself to^making proposals for the reforrn of naiionar r.*,-.,r.rr,uur" tt ougn
and European law caunot turn exclusively on European unifying legislation. that is, for as long as it does so, it will inevitably
I be tainted with nationalism,
Years ago CorNc was quite right to say that regarding national regal systems as given andfixed,
ú;ki;;',ä'¿iu"._
only ro see whar can be of use ""dto tn"*.'Co*puru-
'unification of law cannot come about simply by laying down uniform rules, ::.:i:.:lo ::nvergences
as was
sometimes thought in the nineteenth century. In many cases it may be necessary,
but i]:-* *ll,..qgyco beyond narignql:i{slems and provide a comparative
Þasrs on which,,to deverop a qyrtem orláw'forau._euiopef
I i, ãäthi, by
: "rr,
1\
:
,\
\- fl*",ï;a^"å\
i.\-rç n"Xogrp',
-\\A
{Ì.
¡"
 The Ftutctions and Aíms of Compøratíve
Law 3I

The Prínciples of European Contract

Law Part I: Perþr¡nance' Non-
r ¡ ilrìD¡REÀlE (ed.),
gs)'
ii ilr*r"r, o"d Remedíes Gs

in Strasbourg passed a resolution

1n 1989 the European'Parliamentnthat a start be made on the necessary
roi^f.ãÑo. C rS8/+ão) rdquesting
ä,rìö*lrl"*m'*i'åå'#ff"ï*:3ä"îffåi'iäi';
for it demonstrated
L"i;*Ïi,îå, i, ií
any acrual
"1"".t¡"t
need has been
union.
:;ffitî-lalh within the competence of the European
.Zur Entwicklung eines europãischen Zivilrechts', Festschrifi
L)¿ tlus see Trru.lNN,
r'"uiNi' zg'p ryls'slq: Geuooln' 'Pour un code européen
ooøenhof!(t985,¡ a95;
"f;"¿;::,;;':'Rä-'í",' ai i"ip g' cgill io; LrNpo' 'Is codification Needed in
per
;ï;J;-t"; Reu. P L ¡tr'i
o un codice
trbi:)-¡si;-ivrnNcoNr' LBuropa dei codici
a-ái"i"" io Ho*t*rup and others (eds')' Towdrds a
'l,rnt*o,, ilgg¡); s."
,;;;;;; at'o
c¡uit ûde (t9g4)'' i,
t,

Orre thing is certain, UJ*"t"i' One cannot even begin to contemplate a

has been prepared by thoroughgoing
n,riö** évii code Lntil the way For example, the law in pre-revolutionary
i"ì,__i"n. History tells us as much.
to very diverse, with customary laws in the North and
ïr"rt"-tt"¿ be
rer*ived Roman Law ií çhe south, ""t-tI il
the sixteenth and seventeenth
n"rit"tt, iucluding DuMoutrN, CoQu:r¡ e, and
coÍlmon to .the
;;il;;r ; serics of famous .droit commun français'. It never
öäi** *r"¿ually elicired, out of them a.
was so successful in providing
;J;ï J¡rt"¿ as strict lþw anywhere,tur of French law that the eventual Code
basis for the unification
"-àäìri""f
ã-¡i *rl¿ .be ñnaiized ii four months (see below p' 82)' Again' when
ËrÃuo, LllusBR. published i his work on System und Geschichte des Schweìzer-
in l8g¡l there was really no such thing as Swiss private
lcietr fr¡natrechi.ç
in the cantons' Greatly to his
i"*, ooly a great ¿i'r"rsidy of private laws
based his pr"t"ttt.tioo of the cantonal laws oo th-" concept
",."ii,,lÍrrri.
oi" d*itt private law, dore ideal than real' and when the Confederation
his research tåat
finally opteå for the urriûCation of Swiss private law it was
prr"fâJ the basis that was needed. Legal scholars today are faoed with a
They toil must use the comparative method, though their
,iroil", challenge.
or laws of
*nteol"l is noijust the customa¡y laws of France the cantonal
privaæ law of all the oountries in Europe. This
Switzerland buithe positive
is some taskl But if we suçceed in it, we will have produced the indispensable
iutcllectual groundwork $or a European Civil Code against fle day when
.political and-practical considerations enable it to be put on the agenda.