Comparative Law – 2022/2023
Summary
Week 1 – The Powers of Comparative Law
What is Comparative Law?
There is no definition of CL.
Part of the approach in class is to learn and bring our own rich diverse backgrounds to the floor, one
common element between us as students/lawyers: our legal condition (figure of pyramid). This figure
symbolically represents the way we think as lawyers when we confront a legal question (see principles
in the pyramid that you think about when answering a legal question, applicable at a national or regional
level, hierarchical system of sources. Lawyers are prone to think in hierarchies, this also applies at the
international level, the same structure according to which we all think. Hans Kelsen is behind this idea,
German legal theorist, who conceived law as structured in this way.
What Comparative Law is not about?
1. Questions of legal validity regarding the vertical relationships among legal systems
» Monism / Dualism
o The terms monism and dualism are used to describe two different theories of the
relationship between international law and domestic law. Monism and dualism both
offer approaches to how international law comes into effect within states, and how
conflicts between national and international law are resolved. In practice, many states
are partly monist and partly dualist in their actual application of international law in
their national systems.
o Monists accept that the internal and international legal systems form a unity. Both
national legal rules and international rules that a state has accepted, for example by way
of a treaty, determine whether actions are legal or illegal.[1] In most so-called "monist"
states, a distinction between international law in the form of treaties, and other
international law, e.g., customary international law or jus cogens, is made; such states
may thus be partly monist and partly dualist. In a pure monist state, international law
does not need to be translated into national law. It is simply incorporated and has effect
automatically in national or domestic laws. In its most pure form, monism dictates that
national law that contradicts international law is null and void, even if it post-dates
international law, and even if it is constitutional in nature.
o Dualists emphasize the difference between national and international law, and require
the transposition of the latter into the former. Without this translation, international law
does not exist as law. International law has to be national law as well, or it is no law at
all.
» Primacy/Direct Effect
o Direct effect (rechtstreekse werking) is the capacity of a norm of EU law to be applied
in domestic court proceedings, whereas primacy (voorrang)(or supremacy) denotes the
capacity of that norm to overrule inconsistent norms of national law in domestic court
proceedings.
» Compare Kadi Opinion of AG Maduro, para. 23/24 with BVerfG, Judgment of the Second
Senate of 5 May 2020 - 2 BvR 859/15:
“Where fundamental interests of the Member States are affected, as is generally the case when
interpreting the competences conferred upon the European Union as such and its democratically
legitimated European integration agenda (Integrationsprogramm), judicial review may not
simply accept positions asserted by the European Central Bank without closer scrutiny... The
Court of Justice of the European Union exceeds its judicial mandate, as determined by the
functions conferred upon it in Article 19(1) second sentence of the Treaty on European Union,
where an interpretation of the Treaties is not comprehensible and must thus be considered
arbitrary from an objective perspective.”
,2. Questions of legal validity regarding the horizontal relationships among legal systems
» These types of issues are studied in the field of “private international law”.
» A field mainly composed by “rules about rules” that distribute territory/jurisdiction:
- International” Hague Conference of Private International Law
- EU: Brussels Regulation (I and II) Rome Regulation (I and II)
» Some interesting cases:
- Tim and John are married in Germany. John is Turkish and had two Turkish kids with
his former wife in Turkey, where he also owns a huge estate. John past away last year.
Is Tim be entitled to inherit at least part of the estate?
- Mark has been convicted to death penalty in the USA. Since 6 years Mark lives in
England that has abolished death penalty on 1965. The English police receives an
extradition order from the competent authorities in the USA. Should the English police
comply with the order?
The crux (kern) of Comparative Law and Legal Studies
It’s about the capacity to instead of answering questions within our own legal pyramid to detach from
our own legal world and be able to compare/contrast how one system answers certain questions with
how they are answered in other legal systems.
Contrast (can mean two things):
» To map how those problems are resolved in other legal systems.
Compare
» Different ways of resolving them and trying to explain/understand the similarities and
differences.
à That is the traditional comparative law method,
A second method:
About tracing modes of influence between legal systems, tracing legal dynamics.
Usually key question: “Why does the law change in a certain legal system?” à Comparative Law can
gain an important background knowledge to answer these questions.
The evolution of Comparative Law
» International Congress of Comparative Law in Paris in 1900 as one of the founding moments
of the discipline and community.
» Initiators’ ambitions: comparative law as tool to dethrone rigid legal positivism of commentaries
‘that sound like pure geometry’, instead reflect legal evolution and social content of law.
» Raymond Saleilles: comparison helps in identifying law as developing and culturally engrained
(‘national science of comparative law’)
» Édouard Lambert: ‘for my part, I see but one flaw in the traditional method, but an
overwhelming flaw: its dogma that legislation is perennial (eeuwigdurend), its belief in the
code’s rigid though indefinite system’
- ‘furthering the recognitions that the civil law is an empirical science and reinstating its
true object, the complex and dynamic legal system of the day’
Intellectual, methodological, political ambitions of Comparative Law have changed an diversified over
time.
, Legal Positivism:
Legal positivism is a philosophy of law that emphasizes the conventional nature of law—that it is
socially constructed. According to legal positivism, law is synonymous with positive norms, that is,
norms made by the legislator or considered as common law or case law. Formal criteria of law’s origin,
law enforcement and legal effectiveness are all sufficient for social norms to be considered law. Legal
positivism does not base law on divine commandments, reason, or human rights. As an historical matter,
positivism arose in opposition to classical natural law theory, according to which there are necessary
moral constraints on the content of law.
Legal positivism does not imply an ethical justification for the content of the law, nor a decision for or
against the obedience to law. Positivists do not judge laws by questions of justice or humanity, but
merely by the ways in which the laws have been created. This includes the view that judges make new
law in deciding cases not falling clearly under a legal rule. Practicing, deciding or tolerating certain
practices of law can each be considered a way of creating law.
Within legal doctrine, legal positivism would be opposed to sociological jurisprudence and hermeneutics
of law, which study the concrete prevailing circumstances of statutory interpretation in society.
The word “positivism” was probably first used to draw attention to the idea that law is “positive” or
“posited,” as opposed to being “natural” in the sense of being derived from natural law or morality.
Why is Comparative Law relevant? Why should we care?
Three powers/uses of Comparative Law:
1. Forensic (lawyer) à to apply
2. Policy à to propose new rules/policies
3. Conceptual/Theoretical (Jurisprudential)
1. Forensic (Michael Bobek)
Knowledge that you gain here will give you a comparative advantage even only in the forensic field to
apply it to legal cases, text from Bobek (AG at the ECJ).
Analysis: use of foreign law by ECJ of national legal systems, more and more referring to laws of other
legal systems, he wanted to question that/review it empirically
What is his object/themes of analysis?
» Object?
o The use of comparative law or comparative modes of legal reasoning in European
Supreme Courts (5 jurisdictions)
» Themes?
o (1) Novelty (How new are these references to foreign legal systems by supreme courts?)
§ Novelty à Has always been connected to the rise of nation states, but it’s really
nothing new. He outlines three periods when historically these references to
foreign legal systems by legal authorities were very common:
• Medieval Period as golden age of comparative law: law was a real
bazaar instead of a pyramid, a modern understanding of different legal
systems that applied to questions of status instead of citizenship. Judges
and tribunals were entitled to draw upon different legal systems who
were not really independent but fluid. They were to pick up things from
different legal systems. Not that clear jurisdictions/boarders. No nation
States.
• Modernisation Period: Westphalia, birth of nation states etc, but legal
architecture did not really weaken from one day to the other. Slowly
states were gaining legal capacity, but the police power of states was
developing at the same time as the ius commune (common law that
applied to private relations in general that correlated with powers). Law
