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COMPARATIVE LAW 2024-2025Exam: putting together concepts and seeing the relationship between concepts + writing a mini essay
on a question.
INTRODUCTION: WHAT IS CL?
AN OVERVIEW OF THIS INTRODUCTION
Learning objective: describe and situate subject of course (= ‘comparative law’)
Learning material: specified reading in the reader (available on Ufora)
ZWEIGERT & KÖTZ, ‘The Concept of Comparative Law’, pp. 1-12
KOKKINI-IATRIDOU, ‘The Comparative Law’, p. 3-13
DAVID, ‘Introduction’, in The Different Conceptions of the Law, p. 3-13
GREEN, ‘Positivism, Realism, and Sources of Law’, 35 p.
Overview of the lecture content:
the concept of comparative law [slides 1-3]
the research object [slides 1-4 → 1-6]
the research methodology [slides 1-7 →1-9]
Look at comparative law as a form of organized knowledge = science but there are many problems
with science. Law as a field of science is challenged.
organized knowledge = a way of approaching at least something that might look like an object.
THE CONCEPT OF COMPARATIVE LAW
What is comparative law? A way of understanding by comparing and perhaps making it better in the
future by looking at something else.
In the UK we have an opposition between law and right, there are reasons for that. ‘Subjective rights’
= a special power because of the existence of objective law. We have a right to something, and that
right is given because there is a law.
Comparison of law/Legal comparison: it is NOT a
≠ body of law (objective law) or branch of law
o Comparative law is for sure not the right.
CL is not an objective law because it is not a branch of law. CL is not a part of the law of
a legal system.
It is something that doesn’t place you within the legal system. It places you as an
observer from outside of your legal system. It has more to do with legal theory, legal
history,… than it has to do with specific branches of the law in the legal system.
≠ type of claim or specific power (subjective right)
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, ≠ way of resolving conflicts compulsorily (functional law): it has not any normative legal
dimension. That is why it is misleading: CL sounds like civil law, public law,… it has nothing to do
with the others, it just sounds like that.
o In order to compare something, you have to be able to place yourself in more than one =>
ex. Data protection: you enter a cross border transaction, you put into contact various
normative orders. For instance, you go on Erasmus, and make a contract with someone
from the other country = putting into contact two legal orders.
=> comparative law ≠ (type of) law
!! some designations are misleading:
comparative law = vergelijkend recht
droit comparé (‘compared law’) = vergeleken recht
It is
= ‘an intellectual activity with law as its object and comparison as its process’(ZWEIGERT-KÖTZ)
think of CL as an interaction, a process, an activity in which you are engaging.
Example: when you take the plane, there is a lot of contact two legal orders in the legal space
(ex. rules about the passport)
= a comparison (= research method) of law (= research object)
!! it is also a method: the idea that as a science law has methods. What could make essentially
scientifical or very close to a scientific discourse is comparison.
o Which enables law to achieve it scientific status.
By comparing the law, we are moving away from our national legal system and national legal
knowledge. Once you step out of Belgian law, we see that there is something that is not only
specific to our country but is specific for law as such.
Law can be a science and perhaps the most important part for it to be a science is comparative
law as a method.
o We need a form to organize our knowledge and CL is able to give us that up to a point at
least.
A discourse on reality: science is not reality as such, it is a way in which we represent reality.
The organized knowledge is determined by reason. What is ‘reason’ is what we call the
scientific methods: we are making sure that we are keeping in touch with the object of our
knowledge and there is another way: the existence of a scientific community. You need
someone to tell you of the method is the appropriate one because all by yourself you might be
wrong.
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,THE RESEARCH OBJECT: WHAT IS LAW?
Importance of the question
what can/may be compared to give meaningful result?
What must be included in comparison to give meaningful result?
Main problem in CL is that we don’t really know what to compare. We know but not for certain.
Ex. Study the consumption of hamburgers, then they know what they study they can see the
hamburger and touch them. They know that the practice exists and is there.
o We often don’t know what we compare (sociologists: compare how consumers consume
hamburgers); it’s different to compare something that has a link with the law because a lot of
people don’t know a lot about the law; how do you know that a person is a lawyer? What is the true
constitution?
Law is a social practice but perhaps there is something more to that. if we are not sure that the
law of a country exists, how can we compare it? Where do we start and end the comparison?
Question: What is law? Guidelines: some of them must not be necessary useful but at least some of
them will be useful in the future. You have to think what counts for you as law before you can make a
comparison.
Law = ‘set of rules ordering society’ = hollow (= holle) description
Natural theory = law is essentially connected to morals and morality. Believe that there is
something superior and it comes from a moral nature.
law = Sollen (an ought) v. law = Sein (a being - is)
o Hans Kelsen: his initial project was to turn law into a science. Why? Law was not
considered a science by sociologists.
Kelsen wanted to safe the law: there is a value to what we are doing, to the work of the
lawyers. That value is not something that you can just simply can get rid of.
An ought = a normative prescription: enforced by courts and judges
This type of normativity operates in other countries who have a legal system (ex.
turkey, USA, China)
He called it sollen (an ought)
Norms have been produced according to other norms: ex. The rule in the criminal
code that you cannot steal, it is true in a legal sense because it has been created in
accordance with the constitution and not because it was created by the parliament
BUT because it was created by the relevant body, which was empowered by the
Constitution.
3
, These norms are regulating one by another: the law does not have anything to do
with us human being. It is a matter of normative content and a matter of meaning of
knowledge. Legally it exists so far as it has been permitted by another norm.
o Revision Kelsen: trying to define what law is as a very specific type of activity or as a very
specific type of human fear of action. Solution: validity = the connection between norms
(superior norms and interieur norms).
Law doesn’t have anything to do with human will or action. Law is just almost like
mathematics: norms exist and are binding because there was another norm that said
they were binding.
Ex. a contract because it comes from a private entity and this entity has been
empowered by a norm to create that contract.
o Kelsen took his ideas from Kant: Kant has a sort of concept of a priori categories. We have
a pre-existing category of knowledge which helps us to understand things.
The law exists because we are able to recognize it and we can recognize it because it is
valid, and it is valid because that is what we are dealing with as lawyers.
>< sociologist: not interested in the validity of legal rules. They are interested in how
people work with contracts.
The meaning of the rules is important, the meaning is given by the community and by
those who understand the whole relationship between these norms.
Ex. we have never seen the number one, but we are able to recognize it.
law belongs to the world of ideas v. law belongs to the world of social facts.
legal positivism: a rule ‘exists’ if it is valid = as promulgated/recognised by real/authorised ruler
(law is posited) = as based on higher norm or formal source of law (all law is source-based)
o Thomas Hobbes: law is what the souverain says it is because without him we are not going
be able to survive.
The law is whatever the souverain says it is = easy answer for a lawyer because you only
have to define what a souverain is and whatever this person says is the law.
o John Austin: the law is a command given by the souverain to their subjects and this
commend is backed by a sanction.
CL according to those, you must find the command and those are the law.
He used to be a former military officer: it is about commands, orders,… it all relates
o Heart: the law is a social practice between the primary rules and secondary rules
Primary rules = exists in every society
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