What is the Comparative Law?

Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of internationalism, economic globalisation and democratisation.

What is Comparative Law?

What is meant by comparative law? In the strict sense, it is the theoretical study of legal systems by comparison with each other, and has a tradition going back over a century. In recent years it has gained in practical importance for two reasons. The first is the increased globalization of world trade, involving the need to "do business" in unfamiliar legal systems. The second is the move towards harmonization of laws, and more recently towards codification within the European Union, where several legal traditions coexist. More loosely, there are publications and Internet resources that assemble legal materials from several jurisdictions, without necessarily undertaking comparisons, but they can be seen as "tools of the trade" for comparative lawyers.

Comparative law, Conflict of laws and Unification / Harmonization of law

These three topics are distinct but closely related.

Conflict of laws, or (usually) private international law, concerns national or domestic legal rules applicable in situations involving the law of another jurisdiction. This may be another country or, in the case of federations, another state.

Unification of law is a process that grew out of the need to simplify conflict of law rules, often by international conventions, and has acted on both the national and international levels. The numerous uniform laws applicable in the United States, most notably the Uniform Commercial Code, are obvious examples.

There are two main sources of international uniform law.

The Hague Conference on Private International Law first convened in 1893, and has prepared over 30 conventions on subjects such as international civil procedure including enforcement of foreign judgments, family law including marriage, protection of children and succession, and products liability.

UNIDROIT, the International Institute for the Unification of Private Law, was set up in 1926 as an organ of the League of Nations, but re-established in 1940 under a new statute. About 60 nations are members. Its most notable convention is the Convention relating to a Uniform Law on the International Sale of Goods, 1964. There is a list of conventions on the website, with links to full text.

By the nature of its continuing development, the European Union is the centre of harmonization activity. The main thrusts are in the private law areas of family law, contract, sales, insurance, trusts and movable property. Relevant centres of activity include:

• Acquis Group: European Research Group on Existing  EC Private Law
• Commission on European Family Law based at the University of Utrecht. Its monograph series European Family Law is published by Intersentia in Antwerp.
• European Group on Tort Law in association with the European Centre of Tort and Insurance Law in Vienna. Its website is hosted at the University of Girona, Spain.
• Study Group on a European Civil Code chaired by Professor Christian von Bar at the University of Osnabrück.

A thorough exposition of the movement towards a European Civil Code is contained in a collection of contributions from several legal scholars: Towards a European Civil Code, 3^rd edition, edited by Arthur Hartkamp and others. Kluwer Law International, 2004.

Other works on European harmonization include:

·        BUSSANI, M. and MATTEI, U., eds. The common core of European private law. Kluwer Law International, 2003.

·        SMITS, J. The making of European private law: toward a ius commune Europaeum as a mixed legal system. Intersentia, 2002. (A translation of his Europees privaatrecht in wording)

For a much fuller discussion of uniform law resources, see Duncan Alford's Guide on the Harmonization of International Commercial Law on this website.

The world's legal systems are a product of history, largely by conquest and colonization, but also in modern times by reasoned and deliberate adoption by one state of at least part of the legal framework of another. Two important examples are the modernization of Japanese and Egyptian law, and more recently the adoption of western models of commercial, financial and property law in the former socialist countries of Eastern Europe.

We can speak of "families" of legal systems, though increasingly the term "traditions" is being used, highlighting their historical development. The best-known distinction is that between the Civil Law and the Common Law traditions. Civil Law systems have their foundations in Roman law, but are generally based on codifications produced in Europe in the 19th Century. The most important are the French Civil Code of 1804 and the German Civil Code of 1900. Each was the result of long and careful study by appointed commissions, but they are founded on differing traditions and theory.

It might be said that the comparative law study in Cambodia is rare at the universities of Cambodia. The purpose to create this blog is to share knowledge of law to Cambodian people, students and other stakeholders.