Hoorcollege 1 – The World’s Legal System
10-2-2022
Voorbereiden:
M. Bogdan, Concise Introduction to Comparative Law (Europa Law Publishing 2013) 1-11, 29-
85.
Aantekeningen:
In this lecture, the problems that come with a comparative analysis of law will be explained. The
lecture will zoom in on the difficulties of comparability and the explanation of differences between
the law of regions and states. The interactions between systemic properties of law (legal families)
and idiosyncratic developments are a key problem. It will be argued that in order to compare well,
one has to look not only into black-letter-law but also into history, morals, religion and context.
Guiding Questions: Legal Traditions/Families and Legal Pluralism
1. What can be gained from engaging in comparative legal analysis?
2. Are comparative lawyers limited to comparing national legal systems?
3. What is meant by legal pluralism?
4. What is a legal family?
5. Are legal families fixed entities?
6. What is understood to be the most prominent common denominator adopted by comparative
lawyers?
7. Why would a critical perspective be useful for lawyers?
8. What other factors, other than those mentioned in the knowledge clip, could you imagine
contribute to differences between legal systems?
9. What is one critique against the dominance of functionalism in comparative law?
10. What do you think is meant by the contingency of law?
Knowledge Clip 1- Legal Traditions/Families and Legal Pluralism
Outline
1) A plurality of legal systems: Legal families/traditions
2) What is ‘Comparative Law’?
3) Problems with engaging in comparative legal analysis
A plurality of legal systems
-> why do we have so many different legal systems and not one for the entire world?
What factors contribute to the world’s various different national legal systems?
- Political Considerations: the leader of the country, e.g. a dictator, has a lot of influence on the
legal system in that country and the legal system is there for its citizens. What the citizens vote
for also determines the legal system
- Economic Considerations: consider the importance that will be placed on the right of property
and government intervention in a nation that advances free market capitalism
- Religion
- History
- Geographical Factors
Legal Pluralism
- Definition of ‘legal pluralism: “…[A] situation in which two or more legal systems coexist in the
same social field.” (S Merry, ‘Legal Pluralism' (1988) 22 Law & Soc'y Rev 869, 870)
- National legal systems are not the only type of legal systems that exist! (eg. Public international
law is a legal system that belongs to no one state or territory.)
What is Comparative Law?
- Definition: “…[T]o place comparable elements of two or more legal systems against each other
,and determine their similarities and differences.” (M Bogdan, p.45)
- *This is not necessarily limited to comparing two or more national legal systems.
-> you can also compare law from the middle east and European law or law now and law many
years ago in the same place
Why Compare?
1. Academic interest.
2. To gain practical knowledge: there will be times when they find themself needing to engage in
legal matters that require some knowledge of how a foreign legal system operates
3. To acquire a better understanding of our own legal system: if you compare the legal system in
your country with one from another and you find differences and similarities you will gain more
knowledge about your own legal system
4. To engage with how the law could be: you see how others may have approached such
situations
- Lex Lata (positive law, the law as it is) & Lex Ferenda (the law that could be, future law)
5. To gain a holistic understanding of law in a globalized world
Engaging in comparative legal analysis – How to?
How many legal systems to engage with?
- Bilateral Comparison = Two legal systems.
- Multilateral Comparison = More than two legal systems.
What can we compare?
- Micro-comparisons = Focus on the differences and/or similarities that can be found in respect to
specific aspects of legal systems (eg. specific rules and institutions).
- Macro-comparisons = Focus on legal systems in their totality.
Legal Families/Traditions
- Definition: “…[A] conceptual and methodological device of the comparative lawyer...” (J Husa,
‘Legal Families’ in Elgar Encyclopaedia of Comparative Law (2012) 491.)
-> legal families are referred to in order to delignate between different collections of legal
systems, for example civil law and common law are different legal families
-> the idea is that by deviding the world legal systems into families, one is able to categorize
systems based on certain recognizable characteristics that contain to each member
- Delineation of legal families can be based on various factors:
> Historical (eg. Romano-Germanic Legal Family)
> Political (eg. Socialist Legal Family)
- No classification can claim to be timeless.
Functionalism
-> functionalism advances one comprehensible for the comparative lawyer
- Definition: “… [O]nly law which fulfills the same function can be compared.” (U Kischel,
Comparative Law (OUP 2019) 88-89.)
-> realization that legal systems are more than theoretical institutions build in a vacuum, rather it
recognizes that legal systems are created to address a very real practical problems facing
societies
- What is meant by tertium comparationis? -> that allows the comparative lawyer to engage in
comparative analyses
- What is meant by praesumptio similitudinis? -> the presumption of similarity: the basic idea is
that one presume that different societies will nevertheless be likely to have to solve similar
problems to similar institutional means
Issues with comparing
- Language (do you have the right translation? The same words can mean different things in
different countries)
,- Not knowing where to look.
- Interpretation (importance of jurisprudence, goal of the law, etc.)
- A presumption of conceptual similarities.
- A lack of understanding of the social context behind a legal system.
Lecture I – Legal traditions/families and pluralism
Lecture 1 – Comparative Law & Legal Families
• What is Comparative Law?
• Foreign Legal Studies
• Functionalism in Comparative Legal Analysis
• Legal Families
What is Comparative Law?
• Comparative Law is best defined by the following:
- The comparison of general features or detailed provisions of different legal systems with the
purpose of ascertaining their similarities and differences.
- The processing of similarities and differences that have been ascertained, for instance by
explaining their origin, evaluating of the solutions utilised in the different legal systems, grouping
of legal systems into families of law, or searching for the common core of the legal systems.
- The treatment of the methodological problems that arise in connection with these tasks,
including methodological problems arising in connection with the study of foreign law.
• Comparative Law essentially helps the lawyer/scholar/student to better understand how law
functions in society and reflects the environment from which it emanates from.
• This understanding of the functioning of law is extrapolated by studying the differences and
similarities and why they arise when comparing one legal system to another.
Why is Comparative Law important?
• As we engage with legal systems from around the world, it is important to sharpen our
comparative legal skills
• Important tool for the modern day lawyer
• Academic investigations to better understand law
• Finding solutions for more efficient legal systems
A Starting Point: Foreign Legal Studies
• In order to engage with comparative legal analysis it is important to explore foreign legal
studies.
• What is the value of studying foreign law:
- To understand how various countries, with their potentially unique legal systems, deal with the
same if not similar situations.
- On a practical level- providing legal advice to clients taking part in transboundary activities.
E.g. A Swedish Lawyer providing advice to Swedes intending to purchase real property in Spain.
- Bogdan: ‘Even jurist who do not come into direct contact with foreign law have begun to
realise that a jurist just like a doctor, computer scientist, or any other qualified professional cannot
limit their attention only to what occurs within the borders of his own country’.
A Starting Point: Foreign Legal Studies
• Only in the rarest of cases can a comparative lawyer simply draw on his own comprehensive
knowledge of a foreign legal system.
• Obtaining accurate and up-to-date knowledge about the foreign legal system.
- It is often considered best to study the primary sources, i.e. the official sources of law (the
texts of statutes, judicial precedent, etc.) from the legal system that is being studied.
> However, not an absolute necessity. Obtaining a good knowledge of the legal system in
question maybe difficult, especially for more exotic legal systems. Foreign statutes and judicial
decisions are also often difficult to obtain, even if much reliable information is these days
available on the internet.
, - Secondary sources of law such as textbooks, manuals, articles etc.
> Judges and practicing lawyers in the foreign country itself read and allow themselves to be
influenced by well-regarded works of these types.
> It may be difficult to understand the primary sources and make full use of them without
having a substantial amount of background knowledge. It is more rational to first read an
overview of the legal issues in a recent article or reference book that to delve directly into the text
of statutes and judicial decision.
-> so use both primary sources and secondary sources of law
- It can at times be advantageous to use books written by jurists from outside the legal system
they are talking about, although this is an exception.
A Starting Point: Foreign Legal Studies
• Legal materials that are studied and evaluated must be current.
• However, this also depends on what sort of research a comparatist is conducting. Certain
fundamentals of a legal system change infrequently, i.e. hierarchy of the sources of law and how
they are used.
• However, even such fundamental principles can also change over time. There may have been
an abrupt change when a country has undergone a drastic change in society, such as has
occurred with the fall of the communist regimes in Eastern Europe. Sometimes, the entire legal
system may be completely overhauled in drastic fashion.
Foreign Legal Studies:
• Bogdan states that: ‘Foreign sources of law should be interpreted as they are interpreted in the
country from which they originate. If one desires accurately to understand the meaning of a
foreign statute or a judicial decision, one cannot interpret them in the same manner as if they had
originated in one’s own legal system.’
• Foreign legal systems must be studied in their entirety.
-> be openminded and don’t allow your previously portraying to effect when you are analysing a
different legal system and to understand it in its entirety so you can actually be really efficient and
the most effective
Foreign Legal Studies: Obstacles
• Translation issues: Dictionaries may be adequate up to a certain degree however, many foreign
legal terms and phrases lack in fact a directly corresponding translation. E.g. the English legal
term ‘trust’ has no counterpart in most Continental European language.
• Legal terms that also exist in everyday language and frequently have a somewhat different or
less precise meaning also cause confusion.
• Translation problems can occur even concerning typical legal terms which are not even used in
a non-legal context. E.g. An American notary public is not at all the same figure as a Swedish
notarius publicus or a German Notar.
• It occurs that legal terms have different meanings in countries which have the same language.
Eg. the concept of ‘Auftrag’ (roughly translated into English as commission or mandate) in Swiss
law does not mean the same as ‘Auftrag’ in German law.
Foreign Legal Studies: Obstacles
• Best advice: make use of specialist bilingual dictionaries for legal terms or law dictionaries
where legal terms and concepts are explained in their own language, provided of course that
such dictionaries are available.
-> going back to using secondary sources that give you that guiding perspective what the terms
mean and what the translation issues might be
• Also engage with the scholarly experts of the legal system in question to gather a greater
understanding of the relevant legal terms.
• Particularly problematic for a multi-language legal text such as an instrument of EU law or an
international treaty with authentic versions in several languages. E.g. judgements, travaux
préparatoires etc.
