Comparative Law
Week 1: The Powers of Comparative Law 2
Michael Bobek 2
Nils Jansen and Lukas Rademacher 3
Ralf Michaels 4
Tutorial 6
Week 2: The Means of Comparative Law - Functionalism and its Context(s) 7
Mathias Siems 7
James Q. Whitman 10
Tutorial 12
Week 3: Legal Families, Cultures, and the Western Legal Tradition in Comparative Perspective 13
H. Patrick Glenn 13
David Nelken 14
Tutorial 15
Week 4: Comparative Law and Legal Change 21
Matthias Siems 21
Liam McHugh-Russell 22
Week 5: Comparative Law in a Transnational Context 25
Horaria Muir Watt 25
Lena Salaymeh/ Ralf Michaels 27
Tutorial 28
Week 6: The Chinese Legal System 31
Week 7: The Islamic Legal System 33
1 von 34
,Week 1: The Powers of Comparative Law
Michael Bobek
—> Comparative Reasoning in European Supreme Courts, chapter 1: the debate on comparative
reasoning by courts
- Judicial use of comparative reasoning is hardly a new phenomenon —> What is relatively new
is the field of law (or a method in law) which we now label comparative law
- Three periods of legal history on the European Continent:
• first period: medieval period —> before the birth of nation states, law was an open system,
laws were not tied to a sovereign will of one single legislator
• second period: the birth of the nation state 17th century - early-19th century: mutual
exchange; Judicial decisions interpreting the newly established ius commune in the various
states could freely cross borders and were regarded as authority in another system; national
legal systems were gradually created, but they still kept a semi-open character
• third (still current period) started with modern codifications; With their entry into force,
national legal systems had sealed themselves off definitively, from the common whole (the
ius commune) as well as from the others (other national states)
- The birth of modern comparative law by the end of the 19th century is an effort to recover from
the nationalization of the law at the beginning of the 19th century
- Comparative law defines itself in opposition to the notions of territoriality, borders, and the
exclusivity of the laws of a nation state
- mature countries use foreign law less than not that legally stable countries
- the traditional goals of comparative analysis:
• develop common standards which would later form the basis for international or European
harmonization
• use the knowledge within its own country for the purpose of improving the drafting of statues
(Norm)
- judges begin to be (again) recognized as law-makers —> the decision-making can no longer
really be covered by the modernist dream of all-encompassing national statute and the will of
the national legislator
2 von 34
,Nils Jansen and Lukas Rademacher
—> European Civil Code
- the project of a European Civil code combines two elements:
• the first element is the idea of unifying private law
• the second element is the Enlightenment’s idea of a codification
• a european civil code could not achieve legal unity unless it was entrusted to a court that had
the power and resources to guard its application and to control legal development
- introducing a european civil code not to replace but to supplement national legal orders
• the national laws would continue to be normally applicable and citizens would have the
choice of opting for the European law
• leads to an even large degree of legal complexity and may not necessarily mean an
improvement in the state of European private law
- adequate legal instrument? directive, regulation or international agreement?
• due to the principle of subsidiarity, Art. 114 TFEU as the central competence nom normally
allows only the measure of a directive, but this ist apparently not an adequate instrument for
a systematic and conceptual unification of european private law
• only a regulation could serve the aim of genuine unification —> may be argued that a civil
code ist an exceptional case where Art. 114 TFEU also justifies a regulation
- at present, a comprehensive code is no longer on the commission’s political agenda —> the
commission is focussing on the project of a common european sales law (CESL)
- the commission has described the CFR’s (common frame of reference) function as providing a
„toolbox“ for future legislation in the area of general contract law, not only for the european
legislator but also for the member states
- from a legal perspective, the time is not ripe for a european codification
3 von 34
, Ralf Michaels
—> Transnationalising Comparative Law, Maastricht Journal of European and Comparative Law
23 (2016), 352-358
- Comparative law does not die so easily —> rather, comparative law is constantly evolving
- reasons for change: ongoing paradigm shift from what we called a Westphalian model of the
world to a globalized understanding of the world
- in the Westphalian model of the world, all law was either national (state) law or international law
—> the model created three important factors for comparative law: state, positivism, science
• sovereign state: the state has the exclusive power to make law; the focus in comparative law
has come to be exclusively on states and their laws; Non-state laws like religious laws or
customary law have all disappeared from such studies (except when they were, as is the
case with Islamic law in predominantly Muslim countries, turned into state law)
• the focus of comparative law on positive law: means a near exclusive focus on law as official
pronouncements in the name of the state
• idea that comparative law can be done scientifically („Rechtswissenschaft“)
- globalization —> the state has lost its exclusive role in the global sphere; it has lost its
independence, much of their activity now happens in cooperation with other states
• we must learn to look not just at states as lawmakers but also to focus on the significant
lawmaking by non-state actors - arbitrators, institutions, multinational corporations, ethnic
communities and so on
• member states of the EU, are not only part of the same legal system, but also exert influence
on each other through their respective roles within EU law
- that legal science itself provides no criteria for the evaluation of law other than those derived
from the law itself
• It is for this reason that many comparative studies, while often strong in their country reports,
are so vague and unsatisfying in their actual comparison: they can demonstrate similarities
and differences between legal systems, but their legal arguments can neither explain nor
evaluate these differences, because they are country-specific
• the consequence in contemporary comparative law is, for many, the endorsement of
extralegal sciences, in the hope to achieve neutrality
- far too often, social scientific studies in comparative law fall into one of three traps, all related
• replacement of legal with economic language, with no added value
• collapse into abstract models derived from economic reasoning as the yardstick against
which legal systems are to be measured
• social scientific studies often fail to take law seriously in its complexity and specificity
4 von 34
Week 1: The Powers of Comparative Law 2
Michael Bobek 2
Nils Jansen and Lukas Rademacher 3
Ralf Michaels 4
Tutorial 6
Week 2: The Means of Comparative Law - Functionalism and its Context(s) 7
Mathias Siems 7
James Q. Whitman 10
Tutorial 12
Week 3: Legal Families, Cultures, and the Western Legal Tradition in Comparative Perspective 13
H. Patrick Glenn 13
David Nelken 14
Tutorial 15
Week 4: Comparative Law and Legal Change 21
Matthias Siems 21
Liam McHugh-Russell 22
Week 5: Comparative Law in a Transnational Context 25
Horaria Muir Watt 25
Lena Salaymeh/ Ralf Michaels 27
Tutorial 28
Week 6: The Chinese Legal System 31
Week 7: The Islamic Legal System 33
1 von 34
,Week 1: The Powers of Comparative Law
Michael Bobek
—> Comparative Reasoning in European Supreme Courts, chapter 1: the debate on comparative
reasoning by courts
- Judicial use of comparative reasoning is hardly a new phenomenon —> What is relatively new
is the field of law (or a method in law) which we now label comparative law
- Three periods of legal history on the European Continent:
• first period: medieval period —> before the birth of nation states, law was an open system,
laws were not tied to a sovereign will of one single legislator
• second period: the birth of the nation state 17th century - early-19th century: mutual
exchange; Judicial decisions interpreting the newly established ius commune in the various
states could freely cross borders and were regarded as authority in another system; national
legal systems were gradually created, but they still kept a semi-open character
• third (still current period) started with modern codifications; With their entry into force,
national legal systems had sealed themselves off definitively, from the common whole (the
ius commune) as well as from the others (other national states)
- The birth of modern comparative law by the end of the 19th century is an effort to recover from
the nationalization of the law at the beginning of the 19th century
- Comparative law defines itself in opposition to the notions of territoriality, borders, and the
exclusivity of the laws of a nation state
- mature countries use foreign law less than not that legally stable countries
- the traditional goals of comparative analysis:
• develop common standards which would later form the basis for international or European
harmonization
• use the knowledge within its own country for the purpose of improving the drafting of statues
(Norm)
- judges begin to be (again) recognized as law-makers —> the decision-making can no longer
really be covered by the modernist dream of all-encompassing national statute and the will of
the national legislator
2 von 34
,Nils Jansen and Lukas Rademacher
—> European Civil Code
- the project of a European Civil code combines two elements:
• the first element is the idea of unifying private law
• the second element is the Enlightenment’s idea of a codification
• a european civil code could not achieve legal unity unless it was entrusted to a court that had
the power and resources to guard its application and to control legal development
- introducing a european civil code not to replace but to supplement national legal orders
• the national laws would continue to be normally applicable and citizens would have the
choice of opting for the European law
• leads to an even large degree of legal complexity and may not necessarily mean an
improvement in the state of European private law
- adequate legal instrument? directive, regulation or international agreement?
• due to the principle of subsidiarity, Art. 114 TFEU as the central competence nom normally
allows only the measure of a directive, but this ist apparently not an adequate instrument for
a systematic and conceptual unification of european private law
• only a regulation could serve the aim of genuine unification —> may be argued that a civil
code ist an exceptional case where Art. 114 TFEU also justifies a regulation
- at present, a comprehensive code is no longer on the commission’s political agenda —> the
commission is focussing on the project of a common european sales law (CESL)
- the commission has described the CFR’s (common frame of reference) function as providing a
„toolbox“ for future legislation in the area of general contract law, not only for the european
legislator but also for the member states
- from a legal perspective, the time is not ripe for a european codification
3 von 34
, Ralf Michaels
—> Transnationalising Comparative Law, Maastricht Journal of European and Comparative Law
23 (2016), 352-358
- Comparative law does not die so easily —> rather, comparative law is constantly evolving
- reasons for change: ongoing paradigm shift from what we called a Westphalian model of the
world to a globalized understanding of the world
- in the Westphalian model of the world, all law was either national (state) law or international law
—> the model created three important factors for comparative law: state, positivism, science
• sovereign state: the state has the exclusive power to make law; the focus in comparative law
has come to be exclusively on states and their laws; Non-state laws like religious laws or
customary law have all disappeared from such studies (except when they were, as is the
case with Islamic law in predominantly Muslim countries, turned into state law)
• the focus of comparative law on positive law: means a near exclusive focus on law as official
pronouncements in the name of the state
• idea that comparative law can be done scientifically („Rechtswissenschaft“)
- globalization —> the state has lost its exclusive role in the global sphere; it has lost its
independence, much of their activity now happens in cooperation with other states
• we must learn to look not just at states as lawmakers but also to focus on the significant
lawmaking by non-state actors - arbitrators, institutions, multinational corporations, ethnic
communities and so on
• member states of the EU, are not only part of the same legal system, but also exert influence
on each other through their respective roles within EU law
- that legal science itself provides no criteria for the evaluation of law other than those derived
from the law itself
• It is for this reason that many comparative studies, while often strong in their country reports,
are so vague and unsatisfying in their actual comparison: they can demonstrate similarities
and differences between legal systems, but their legal arguments can neither explain nor
evaluate these differences, because they are country-specific
• the consequence in contemporary comparative law is, for many, the endorsement of
extralegal sciences, in the hope to achieve neutrality
- far too often, social scientific studies in comparative law fall into one of three traps, all related
• replacement of legal with economic language, with no added value
• collapse into abstract models derived from economic reasoning as the yardstick against
which legal systems are to be measured
• social scientific studies often fail to take law seriously in its complexity and specificity
4 von 34
