COMPARATIVE LAW
1. Introduction
In general
- Comparative law involves the study of legal systems by comparing the laws, legal institutions, and legal concepts across
different countries and jurisdictions.
o The objective: to gain a deeper understanding of how legal systems function, the reasoning behind their
structures, and the cultural or historical contexts that shape them.
Comparative law has become increasingly important due to globalization, where cross-border legal issues frequently arise:
- Lawyers, scholars, and policymakers use comparative law to:
o Improve national legal systems by learning from other jurisdictions
o Resolve conflicts of laws in international transactions
o Harmonize laws for international treaties and organizations
The concept of comparative law
Comparison of law/ Legal comparison
Comparative law is not an objective law, because it’s not a branch of law. It’s not a part of the law of a legal system - doesn’t
have anything to do with that. It doesn’t place you in the legal system, it places you as an observer: from outside of your legal
system. It has more to do with legal theory, jurisprudential or perhaps with legal history, then it has to do with specific branches
or areas of the law in your legal system.
Comparative law doesn’t have any normative legal dimension.
Comparative law is never about one legal order. To be able to compare something you need to place yourself in a logic of more
than one.
• How does this operate, this logic more than one? You need to put in to contact two legal orders.
• Ex. we are all entering contracts with companies which are placed international. Most of it is regulated by Belgian
Law, but there are things regulated by European Law, International conventions etc. Think of data protection for
instance > the moment you’re entering this cross-border transactions, you’re putting into contact various legal orders,
various normative orders.
You must look at comparative law as an intellectual activity: think of it in terms of an interaction.
Why do we call it comparative law? There are historical reasons for this. This field has named by this since the early 1900.
Zweigert-Kötz are saying that comparative law = intellectual activity which can make law scientific. Because by engaging,
comparing the law, we’re moving away from our national legal system, knowledge.
The research object
What is law
Key questions
MAIN PROBLEM: we don’t really know what we compare.
- What do we do? When do we start the comparison and when do we end?
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, - What do we compare? Law? Therefor we can’t escape the question ‘what is law’? There is no answer, but guidelines
that people have proposed in identifying law. We need a notion of what law is in order to start a comparison.
- There are people that made some definitions of law. You should see those more as guidelines to identify law. They can
be useful to have a notion about what law is (and will enable you to make comparisons).
FIRST STEP: where do you place yourself theoretically?
- How you place yourself as a theoretical thinker has an influence on your comparison.
o F.ex. How can you compare UK-law as a hyper formalist? UK law is NOT written >< hyper formalists want
things on paper: those are social practices that don’t work well together, this makes comparisons difficult.
SECOND STEP: when you know what law is for you; it enables you to make meaningful comparisons.
It has something to do with (the politics of) power, because if you state law is only written, other things are not going to count as
law.
- F.ex. if it’s something written, then other things might become invisible to you. You might conclude that the UK is not a
legal system.
Defining law
WHAT IS LAW? - “a set of rules ordering society” (= hollow description). To really understand what law is, you need to ask
deeper, philosophical questions about its nature and purpose. These questions aim to define law in a way that applies
everywhere, not just in one country or system.
- BUT: they will fail because it is not possible to give a definition for everything.
Comparing law is difficult: what is considered law in one country might NOT be seen as law in another.
Different ways of thinking about law
You’re free to choose what law means for you.
Law as Sollen (an “ought”) vs. law as Sein (a “being”) – Kelsen
Sollen Law is seen as what should ideally exist. This is connected to natural law theory. True law is moral law,
(wat zou moeten which can be discovered through reason. Human-made law is only valid if it matches moral principles.
zijn) Unjust laws, like Nazi laws, are not considered real law. The problem is that it is unclear who decides
what counts as moral or how it is found. It tells you how to find law: through reason, but NOT where to
find it concretely.
Sein Law is understood as how it really works in practice. The focus is on how rules actually function in
(Beschrijving van society. It is a more pragmatic approach, where law is seen as a tool used in everyday life.
feiten: wat is)
Law in the world of ideas
Law in the world Law is seen as an intellectual construction. Legal theory often deals with the abstract ideas behind the
of ideas law.
Law in the world Law is seen as a real social reality. The focus is on rules in action and legal practices. This is the domain of
of social facts legal practice. How does law actually work in society?
Legal positivism vs. sociological positivism
Legal positivism Law is what the legislator says, as long as it follows the proper procedure. Law is separate from morality.
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, A law does not need to be moral or just in order to exist (but it can be).
Theories:
Command Theory of Law – According to John Austin, law is seen as commands or orders issued
John Austin by a ruler or government that citizens must obey.
A law has three main components: the command itself, the
sovereign who issues it, and the sanctions that follow if it is
disobeyed.
The sovereign it’s the one who is in a political superior position.
In Belgium, this would mainly be the parliament, although EU rules
and international treaties also apply; so this question is NOT as easy
as it seems.
Pure Theory of Law – Hans Kelsen’s theory tries to separate law completely from external
Hans Kelsen factors like morality, politics, or social influences. He wanted to
study law purely as a scientific discipline. A law is valid as long as it
has been created correctly according to legal procedures, regardless
of whether it is moral or just.
For Kelsen, law is about what ought to be (Sollen), not what actually
exists. Legal decisions only have meaning in relation to other legal
decisions; for example, the prohibition of theft exists because it is
consistent with the constitution, which itself is based on a higher
legal norm.
Kelsen emphasizes law as a normative system, a hierarchy of norms
that guide behavior. Each norm is legally valid only if it is permitted
or created by a higher norm.
At the top of this hierarchy is the Grundnorm (basic norm), which
legitimizes the entire legal system. The Grundnorm is a theoretical
construct, similar to a mathematical axiom like 1 + 1 = 2. It cannot
be proven but is assumed because it makes the legitimacy of the
system possible. All other norms, such as laws, royal decrees, or
regulations, derive their validity from the higher norms in the
hierarchy.
According to Kelsen, when comparing legal systems across
countries, it is best to focus on what lawyers in each country
recognize as valid rules and what they feel bound to follow. This
shifts the focus of law from external factors to the internal validity
and structure of the legal system.
Theory of legal positivism – According to H.L.A. Hart, law is a social practice made up of a
HLA Hart combination of primary and secondary rules.
Primary rules are the basic rules that guide people’s behavior in a
society; they tell people what they can and cannot do, such as in
criminal law or contract law. These rules exist in every society, no
matter how they were developed.
Secondary rules are rules about rules; they determine how laws are
made, changed, or enforced. They help legal authorities know how
to act and how laws can be adjusted or interpreted.
- F.ex. through rules about how courts interpret laws or how
laws can be amended.
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, One of the most important secondary rules is the rule of
recognition, which is similar to Kelsen’s Grundnorm. This rule serves
as a standard to decide which laws are valid within a legal system. It
is an agreed-upon norm that legal officials use to know which rules
should be followed and enforced.
In short, according to Hart, a legal system is a dynamic interaction
between primary rules that regulate behavior and secondary rules
that organize the system and give it legitimacy.
Sociological Sociological positivism, also called American Legal Realism, says that law only exists if it is actually
positivism enforced. A rule is truly valid only when it is applied in society; rules by themselves are just guidelines.
Law gets its meaning from judges’ decisions in practice, which are often more important than what is
written in law books. According to this theory, judges have a lot of freedom; formal rules are just
guidelines, and their rulings determine how the law develops. By looking at the sociological status and
context of judges, one can even predict how they will decide. When comparing legal systems, it is
therefore essential to consider not just written laws but also the social and cultural context in which the
law is applied.
Law as practice vs. theoretical representation
Law can be viewed from two different perspectives: as practice or as theoretical representation.
Law as practice When law is seen as practice, the focus is on how laws are actually applied and enforced in daily life, as
in sociological positivism. This is law in action, showing how rules work within society.
Law as a The other perspective sees law as a theoretical representation or doctrine. Here, law is studied as a
theoretical concept in legal education and academic literature, but this does not always match how law works in
representation practice. This is often called law in the books.
(doctrine)
Law as enforced settlement of conflicts
Law can be seen as a way to resolve conflicts in different ways.
Government The government can use laws to regulate disputes within society, often through legislation and
enforcement.
By a third party Independent third parties, such as courts and judges, can act to resolve conflicts between individuals or
groups in a neutral way.
By any means There are also alternative methods of conflict resolution, like mediation or conciliation, where disputes
are settled without formal court involvement.
In situations where there is no effective law or authority, conflicts are sometimes decided by the
strongest party, using power or force. This is often seen as contrary to the rule of law because it replaces
legal justice with dominance and violence.
Law and politics
Law can be influenced by politics and social power. Some people argue that laws are often made to serve the interests of those
in power or dominant groups, rather than being fair or neutral. As a result, law can sometimes act more as a tool of politics than
as a means to ensure justice.
Legal positivism vs. legal realism
Legal Positivsm Legal positivism says that law exists because it is created (“posited”) by a recognized authority, like a
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, sovereign. The validity of law depends on the fact that it is formally established, not on its moral content.
Legal Realism Legal realism, on the other hand, sees law as a social process. Realists focus on how law actually works in
practice—how it is applied, enforced, and experienced in society. According to them, law has a social
reality and is shaped by practical, real-world factors, not just formal rules. While law may seem
autonomous and neutral in theory, realists recognize that in practice, politics, morality, and social
circumstances play an important role in how law operates.
Micro versus macro-legal comparison
Micro-legal It focuses on small, detailed aspects of law, such as a single rule, a set of rules, one concept, or a specific
comparison branch of law.
Specific elements in different legal doctrines are examined. For example, a concept like “state of
emergency,” “contract,” or “good faith” may exist in several legal systems but can have different
meanings in each. A set of rules, like liability rules, can differ in scope, exceptions, and procedures
between jurisdictions. Even an entire branch of law, such as corporate law or family law, can vary in
structure and application.
Micro-legal comparison also studies how specific disputes are resolved in different jurisdictions. For
example, how French, Belgian, and American courts would handle a dispute over a lease contract.
Typical uses include: academic comparisons of a particular doctrine, law reform where solutions from
other systems are adopted, and comparative case studies on a single legal topic.
Macro-legal It deals with the overall structure and characteristics of whole legal systems.
comparison
This approach studies typical features of entire systems, such as sources of law, the role of judges, and
the hierarchy of legislation. It also classifies legal systems into broad families or traditions, which is called
legal taxonomy, as developed by René David.
- Continental/Civil Law: Laws are codified, judges apply rather than create law, common in
Europe.
- Common Law: Precedent-driven, judge-made law is important, found in the UK, US, and former
British colonies.
- Other classifications may include Islamic law, customary law, mixed systems, and so on.
Micro- and Macro-Legal Comparison
Micro- and macro-legal comparison are connected and help each other. Macro-comparison looks at the whole legal system
and uses results from micro-comparisons, which study smaller parts like rules, concepts, or specific cases. To know what is
typical for a system, you first need to study its micro-elements.
Micro-comparison also benefits from macro-comparison. It helps decide which legal systems to study, understand rules in
context, and explain differences.
- F.ex. it is harder to claim psychological damages in the UK (micro) because the system (macro) sees people as
independent, while in France it is easier because the system sees people as part of a community.
Micro- and macro-comparison work together in a back-and-forth process. You usually start with micro-comparison to learn
details, then use macro-comparison to see the bigger picture. Going back and forth helps understand both the small details
and the whole system better.
National vs. international
- Traditional you have at least more than one element when you compare.
- Comparison between 2 or more legal orders = horizontal comparison.
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, o What is a legal order? It’s a sort of concept that traditionally was attached to one territory/state (in the last
200-300 years). In essence legal orders have been constructed within and for comparative purposes as being
related to the nation state.
o All the examples are the construct of a legal order which is kind of autonomous: which exist in and for itself.
Meaning: in principle you have something as a legal center and that center of that legal order is the
constitution. Around the constitution we build the whole legal life and legal order.
For 200 years we did legal comparison this way: we saw the world as a pyramid.
o Kelsenian pyramid.
You have on top the constitution (basic
norm), followed by a statutory level and a
regulatory framework (f.ex. ordance,
mistrial orders, decrees).
The top is the centre of the legal order and
holds everything together.
Circle: the legal order.
The first lay on top is very general and the other lays are very specific.
F.ex. comparing the value of a minister decree in Germany and Belgium = micro-comparison.
In 1960 there was a decision of the ECJ: they said there is something as an EU legal order.
For about 130 years the legal order on the picture were considered as being distinct. This is
what inter-national comparison is. The two circles are different legal system. You have
different constitutions - they are the core of the legal system.
The legal orders on the picture are considered equal. That’s why we call it horizontal
comparison: because we just go from the one to the other. We’re not doing comparison to
say BE law is better than DE law.
o The point: we’re going to understand how it functions.
If on a particular matter DE law is ‘better’ - it’s for you or a particular
purpose.
National vs. international
Horizontal Horizontal comparison studies two or more national legal systems, such as the UK versus France. In this
comparison approach, the different legal systems are seen as independent and equal. There is no hierarchy between
them, and the goal is not to rank them but to understand how each system works. In reality, legal
systems are never completely separate: laws often cross-national borders, so the idea that law strictly
begins at a country’s borders is a fiction.
Vertical Vertical comparison is more recent and compares national law with supranational or international law,
comparison such as Belgian law versus EU law, or Belgian law versus the European Convention on Human Rights
(ECHR).
Although legal systems are autonomous, they constantly interact. EU judges continuously compare the
general principles of the rule of law within the EU with the practices of member states.
The rule of law ensures that no one, not even those in power, is above the law; that laws are clear,
public, and fair; that justice is applied equally; and that fundamental rights and freedoms are protected.
In some member states, like Germany, the superiority of EU law over the national constitution is still a
topic of debate.
Inter-national vs. internal-national
External External comparative law is the traditional approach and compares legal systems from different
comparative law countries, for example Belgian law versus German law. It studies law outside one’s own national context.
(traditional)
Internal Internal comparative law, a more recent approach, compares different parts within a single national legal
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, comparative law system. This can be done in three ways:
(recent) - Comparing harmonized national law with parts that remain autonomous, f.ex. EU-harmonized
consumer credit rules vs. non-harmonized national credit rules.
- Comparing different branches of national law, such as Belgian corporate law versus Belgian
insolvency law.
- Considering legal pluralism, where multiple autonomous legal systems coexist within one
society.
o Every country has some internal diversity: certain professions or communities have
their own norms and courts, like self-regulation by doctors, indigenous courts in
Canada or the US, or Islamic family law in Romania. Supranational legal systems, like
EU law or the ECHR, add an extra layer of norms. This creates a complex legal pluralism
where boundaries between systems blur, and one can no longer assume there is a
single central national legal system.
The research method
Foreign Law Studies – you study foreign law in itself (purely in its own context) ≠ comparative law
- Are you doing comparison if the prof as a Romanian is looking at British law? He is just reading something. No, this is
NOT comparative law.
o Prof: the moment you’re starting to be interested in foreign law and you’re interacting in a way or another
with a legal order and you start to think about another order = you’re doing comparative law = legal
comparison.
- Views foreign law through their own lens > sees foreign law in terms of their own doctrine > observation of foreign law
is inherently comparative.
o This means that when you look at foreign law, you naturally compare it to your own legal system. You
understand it through your own legal background. Even if you don’t mean to compare, you are still doing it.
Comparative law in the strict sense – is trying to identify, to explain and to assess, measure etc. the similarities and differences
between legal systems and orders.
- Why it’s about the differences? Without the differences there wouldn’t be comparative law.
- Comparison starts from the moment you realize there is a difference.
There are a variety of purposes for which law is studied and compared:
Contrastive comparison Identifying differences.
- Historically comparative law started with contrastive comparison. It started with
the fact that basically you have a sort of curiosity of saying: things are different.
From this point you ask yourself: why do they do things differently?
Integrative comparison Identifying similarities or common elements.
- Integrative comparison took over. The idea was to turn comparative law into a
science of similarities and to find the bases of a common law of humanity.
- EU marital arrangements, contract law etc. was driven by this idea in
comparative law that legal systems can converged and that they can be
integrated and harmonized.
- In order to organize our global and international society you need the law to go
through this path.
o This was the basis of building international law.
- Many people that are going on the line of integrative comparison not only they
are positivists, but in many cases, they lean more towards practical comparison.
o The idea that what they are doing in comparative law has a value and
that is given by the fact that we try to harmonize law.
No universal accepted unified method = academic discussion among ‘theoretical comparatist’.
o You can play with methodology, but there is NOT one absolute method to what makes a good comparison.
Why? Law is a social construct, so we’re NOT entirely sure what law is in the first place.
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, F.ex. if you believe that law is just rules (as Kelsen, other positivist etc.) you can find it very easy to
integrate, because rules are rules - you can change them. If you believe that law is more about history
and culture than it’s more difficult to integrate things through histories and cultures.
o There is no universal method.
Comparative law vs. other disciplines
Legal history
Comparative law entertains some relations with other disciplines.
Legal history is NOT law, because it doesn’t deal with valid law (in principle) or existing law. Most of the time it deals with law
through the past.
There are many points of similarities between legal history and comparative law.
- Methodological similarities
o Legal history ≈ comparative law on the dimension of time
Comparative law difference about the space.
Legal history is about difference through time.
It’s helpful to comparative law just in order to support it in a number of points.
It can help comparative law by showing that legal realities changes and once legal reality
changes, legal commentary changes, the doctrine, the idea around law etc.
o It enables us to think that law is actually part of history.
o Prof – Kelsen is wrong on one thing: he doesn’t have an interest in the history. For
him history it’s just out there.
Comparative legal history is when you’re dealing with historical comparison of historical moments.
BUT both are using the same way of thinking.
o Legal reality changes over time
Legal history is very important because it tells us that what looks like a monolithic structure (f.ex. the
law of the UK) it can go through change.
This change can be produced sometimes by a simple decision or just a simple judgement of
the court, which completely change legal reality from one day to another.
o F.ex. the important role of the supreme court. The supreme court wasn’t there from
the very beginning, and it actually produced its own role. If you look historically at
the US constitution, you’re going see that supreme court became the supreme court
as we know it today gradually. The first power grab it took it was in the case
Marbury v. Madison. It this case the supreme court said: we’re going to take a look
and interpret the legislation the state Washington was passing in relation to the
constitution. By doing this they started the constitutional review.
o Doctrine/legal theory changes over time
F.ex. there was a professor of constitutional law in France, and he wrote a book on the constitutional
law in 1930’s. He was basically saying that the sources of legitimacy of the French constitution were
the people, democratic sovereignty, the constitution itself etc. In 1939 he sorts of translated a book
from Germany which was a bit about how things are going on in a constitutional regime, which is a
different type. In 1940 he wrote the same book and now the sources of legitimacy where no longer
that, but: the nation etc.
Conclusion: things change, people change their mind. They also change the way their looking
at legal realities, legal concepts etc.
Legal history can bring you into understanding why your judgement goes in direction X or
why a lawyer is writing Y – what are the values.
o Doctrine/legal theory does not evolve 1-to-1 with legal reality.
Just because the practical application of laws changes doesn’t mean that legal theory evolves at the
same time or in the same way.
Sometimes legal theory is behind reality, and other times it may anticipate changes before they
happen.
o Content of legal concepts/terms changes (cf. language evolution)
Just as languages evolve over time, so do legal concepts and terms.
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, - Legal history (shows that law is dynamic)
o Changes in the reality of the law (= socio-political history)
Comparing the law of the past with the law of the present: both in terms of now or then (‘translation’)
o Changes in the representation (= legal doctrine, concepts) of the law (= history of ideas)
Comparing the representation of the law (doctrine) of the past with the representation of the law
(doctrine) of the present
F.ex. how we’re talking and thinking today about colonialism. It completely changed. History
produced things change. It changed because of various socio, political and economical
factors.
o Comparative law and history are going to show you that things were different.
Either they were different in a different place, either they were different in a
different time.
Law is mostly supported by ideas; it acts as a vehicle for them. For example, who should be
compensated if someone breaks a leg? Some legal rules can be extremely technical and very detailed,
focusing on concrete situations. But even these small rules are connected to bigger questions, such as
“Who should rule?”—which is a political and philosophical question.
Legal history is not just a history of institutions or legal concepts. It is also a history of ideas.
These ideas supported political, social, and other projects. Looking at law this way shows that
law is a very strange kind of machinery. It doesn’t exist only in books or courts; other people
rely on it too.
o F.ex. merchants, bankers, and others rely on law because they believe there is value
in what legal authorities do. From this perspective, legal history is also a history of
social practices—practices around the “strange things” we call law. It’s not only our
own practices, but also the practices of people influenced by law.
Legal History as an Aid in Comparative Law
Studying legal history helps in comparative law because it can reveal things that would otherwise stay unnoticed. If you only look
at private law and legal doctrine without considering their history, you can miss important factors. History also helps explain
similarities and differences in law and legal doctrines. It shows how laws change over time.
- F.ex. the concept of “emergency” today is very limited and conservative. Special powers are used for a short time, and
once the situation is back to normal, emergency powers are no longer applied. However, historically, emergency
powers often caused lasting changes. Even if formally the emergency ends, some effects remain. By studying about 100
years of emergency legislation in Europe, we can understand how emergency powers influence and change legal
systems over time.
Sociology
Social sciences They try to use scientific methods. You can measure stuff (economic, political science).
Humanists They are NOT scientists.
Law Is something in between.
Sociological positivism You can’t understand society by looking at social relations. Law is just another form of
regulating relations between human beings. One across many others.
- Max Weber: he was a lawyer first. But after that he was one of the most
prominent sociologists + he was also a sociologist of law. Law has a value but
only within the process of rationalization of society.
Marxist The law is just a screen smoke for economic inequalities. Law is just an instrument of
oppression.
- What really matters in questions for law for a Marxist: who speaks? Where is
the capital? Where is the money from? What is the structure of power? Why is
that?
- Law can be for Marxists an indicator for inequality in society. It can be an
indicator for other things etc. And it can be a starting point for a sociologist of
law.
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, Feminist sociologist They are going to ask other sort of questions.
- Why in the French code the women found itself in the position that once she
was married not being able to dispose of her own goods?
Sociology of Law
- The sociology of law studies how society influences law and how law influences society, with a focus on the social
effects of law.
- It is a subfield of sociology and differs from traditional legal studies because it looks at law from an external, non-
normative perspective. Law is studied as a social phenomenon, not just a set of rules that must be strictly followed.
External Perspective on Law
- Sociologists observe law from the outside, without judging its morality or fairness. They often criticize lawyers for
focusing too much on internal legal logic and too little on social reality. At the same time, sociologists with a legal
background recognize that law has its own internal logic and structure.
Historical Context
- The sociology of law emerged in the 19th century during the rise of social sciences.
- At that time, social scientists used empirical and measurable methods, while humanists argued that phenomena like
ethics and literature could not be measured scientifically. Law occupied a hybrid position: it was neither fully scientific
nor fully humanistic but developed as a discipline combining elements of both approaches.
Influence of Positivism
- Sociology of law assumes that societies can be understood by analyzing social relationships. Law is seen as a tool to
regulate these relationships. The complexity of a legal system reflects the complexity of society: the more complex the
society, the more complex its legal system.
Relationship Between Sociology of Law and Comparative Law
Comparative Law → Empirical material from comparative law allows sociologists to study how different legal systems
Sociology of Law function within their societies. By mapping legal variation, sociology can analyze how law is shaped
by social contexts and how it shapes society in return.
Sociology of Law → Sociology provides neutral analytical concepts, allowing legal phenomena to be expressed in a
Comparative Law common language. This prevents comparative studies from being biased by a single legal system. It
also gives contextual insights about how and where law operates, helping explain why legal
differences exist between countries by considering social, economic, and cultural factors.
Anthropology
Legal Anthropology / Ethnology
- Legal anthropology studies how law develops in different societies. It looks at what is common to all societies and what
is unique to certain cultures.
Legal Anthropology (from the 1940s)
- Researchers observed remote or non-Western societies. They studied legal rituals, like rites of passage, to understand
social norms. They also compared legal rituals to other types of social or religious ceremonies. The goal is to see law as
part of culture.
Legal Ethnography
- This studies smaller or less modernized communities. It looks at how law works in practice, especially in informal or
mixed systems.
Relevance for Comparative Law
- It helps understand law in its cultural context. It shows how multiple legal systems can exist in one society (legal
pluralism). It also helps compare state law with local or customary rules, like colonial laws vs. indigenous traditions.
o Two Ways to study Law
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1. Introduction
In general
- Comparative law involves the study of legal systems by comparing the laws, legal institutions, and legal concepts across
different countries and jurisdictions.
o The objective: to gain a deeper understanding of how legal systems function, the reasoning behind their
structures, and the cultural or historical contexts that shape them.
Comparative law has become increasingly important due to globalization, where cross-border legal issues frequently arise:
- Lawyers, scholars, and policymakers use comparative law to:
o Improve national legal systems by learning from other jurisdictions
o Resolve conflicts of laws in international transactions
o Harmonize laws for international treaties and organizations
The concept of comparative law
Comparison of law/ Legal comparison
Comparative law is not an objective law, because it’s not a branch of law. It’s not a part of the law of a legal system - doesn’t
have anything to do with that. It doesn’t place you in the legal system, it places you as an observer: from outside of your legal
system. It has more to do with legal theory, jurisprudential or perhaps with legal history, then it has to do with specific branches
or areas of the law in your legal system.
Comparative law doesn’t have any normative legal dimension.
Comparative law is never about one legal order. To be able to compare something you need to place yourself in a logic of more
than one.
• How does this operate, this logic more than one? You need to put in to contact two legal orders.
• Ex. we are all entering contracts with companies which are placed international. Most of it is regulated by Belgian
Law, but there are things regulated by European Law, International conventions etc. Think of data protection for
instance > the moment you’re entering this cross-border transactions, you’re putting into contact various legal orders,
various normative orders.
You must look at comparative law as an intellectual activity: think of it in terms of an interaction.
Why do we call it comparative law? There are historical reasons for this. This field has named by this since the early 1900.
Zweigert-Kötz are saying that comparative law = intellectual activity which can make law scientific. Because by engaging,
comparing the law, we’re moving away from our national legal system, knowledge.
The research object
What is law
Key questions
MAIN PROBLEM: we don’t really know what we compare.
- What do we do? When do we start the comparison and when do we end?
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, - What do we compare? Law? Therefor we can’t escape the question ‘what is law’? There is no answer, but guidelines
that people have proposed in identifying law. We need a notion of what law is in order to start a comparison.
- There are people that made some definitions of law. You should see those more as guidelines to identify law. They can
be useful to have a notion about what law is (and will enable you to make comparisons).
FIRST STEP: where do you place yourself theoretically?
- How you place yourself as a theoretical thinker has an influence on your comparison.
o F.ex. How can you compare UK-law as a hyper formalist? UK law is NOT written >< hyper formalists want
things on paper: those are social practices that don’t work well together, this makes comparisons difficult.
SECOND STEP: when you know what law is for you; it enables you to make meaningful comparisons.
It has something to do with (the politics of) power, because if you state law is only written, other things are not going to count as
law.
- F.ex. if it’s something written, then other things might become invisible to you. You might conclude that the UK is not a
legal system.
Defining law
WHAT IS LAW? - “a set of rules ordering society” (= hollow description). To really understand what law is, you need to ask
deeper, philosophical questions about its nature and purpose. These questions aim to define law in a way that applies
everywhere, not just in one country or system.
- BUT: they will fail because it is not possible to give a definition for everything.
Comparing law is difficult: what is considered law in one country might NOT be seen as law in another.
Different ways of thinking about law
You’re free to choose what law means for you.
Law as Sollen (an “ought”) vs. law as Sein (a “being”) – Kelsen
Sollen Law is seen as what should ideally exist. This is connected to natural law theory. True law is moral law,
(wat zou moeten which can be discovered through reason. Human-made law is only valid if it matches moral principles.
zijn) Unjust laws, like Nazi laws, are not considered real law. The problem is that it is unclear who decides
what counts as moral or how it is found. It tells you how to find law: through reason, but NOT where to
find it concretely.
Sein Law is understood as how it really works in practice. The focus is on how rules actually function in
(Beschrijving van society. It is a more pragmatic approach, where law is seen as a tool used in everyday life.
feiten: wat is)
Law in the world of ideas
Law in the world Law is seen as an intellectual construction. Legal theory often deals with the abstract ideas behind the
of ideas law.
Law in the world Law is seen as a real social reality. The focus is on rules in action and legal practices. This is the domain of
of social facts legal practice. How does law actually work in society?
Legal positivism vs. sociological positivism
Legal positivism Law is what the legislator says, as long as it follows the proper procedure. Law is separate from morality.
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, A law does not need to be moral or just in order to exist (but it can be).
Theories:
Command Theory of Law – According to John Austin, law is seen as commands or orders issued
John Austin by a ruler or government that citizens must obey.
A law has three main components: the command itself, the
sovereign who issues it, and the sanctions that follow if it is
disobeyed.
The sovereign it’s the one who is in a political superior position.
In Belgium, this would mainly be the parliament, although EU rules
and international treaties also apply; so this question is NOT as easy
as it seems.
Pure Theory of Law – Hans Kelsen’s theory tries to separate law completely from external
Hans Kelsen factors like morality, politics, or social influences. He wanted to
study law purely as a scientific discipline. A law is valid as long as it
has been created correctly according to legal procedures, regardless
of whether it is moral or just.
For Kelsen, law is about what ought to be (Sollen), not what actually
exists. Legal decisions only have meaning in relation to other legal
decisions; for example, the prohibition of theft exists because it is
consistent with the constitution, which itself is based on a higher
legal norm.
Kelsen emphasizes law as a normative system, a hierarchy of norms
that guide behavior. Each norm is legally valid only if it is permitted
or created by a higher norm.
At the top of this hierarchy is the Grundnorm (basic norm), which
legitimizes the entire legal system. The Grundnorm is a theoretical
construct, similar to a mathematical axiom like 1 + 1 = 2. It cannot
be proven but is assumed because it makes the legitimacy of the
system possible. All other norms, such as laws, royal decrees, or
regulations, derive their validity from the higher norms in the
hierarchy.
According to Kelsen, when comparing legal systems across
countries, it is best to focus on what lawyers in each country
recognize as valid rules and what they feel bound to follow. This
shifts the focus of law from external factors to the internal validity
and structure of the legal system.
Theory of legal positivism – According to H.L.A. Hart, law is a social practice made up of a
HLA Hart combination of primary and secondary rules.
Primary rules are the basic rules that guide people’s behavior in a
society; they tell people what they can and cannot do, such as in
criminal law or contract law. These rules exist in every society, no
matter how they were developed.
Secondary rules are rules about rules; they determine how laws are
made, changed, or enforced. They help legal authorities know how
to act and how laws can be adjusted or interpreted.
- F.ex. through rules about how courts interpret laws or how
laws can be amended.
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, One of the most important secondary rules is the rule of
recognition, which is similar to Kelsen’s Grundnorm. This rule serves
as a standard to decide which laws are valid within a legal system. It
is an agreed-upon norm that legal officials use to know which rules
should be followed and enforced.
In short, according to Hart, a legal system is a dynamic interaction
between primary rules that regulate behavior and secondary rules
that organize the system and give it legitimacy.
Sociological Sociological positivism, also called American Legal Realism, says that law only exists if it is actually
positivism enforced. A rule is truly valid only when it is applied in society; rules by themselves are just guidelines.
Law gets its meaning from judges’ decisions in practice, which are often more important than what is
written in law books. According to this theory, judges have a lot of freedom; formal rules are just
guidelines, and their rulings determine how the law develops. By looking at the sociological status and
context of judges, one can even predict how they will decide. When comparing legal systems, it is
therefore essential to consider not just written laws but also the social and cultural context in which the
law is applied.
Law as practice vs. theoretical representation
Law can be viewed from two different perspectives: as practice or as theoretical representation.
Law as practice When law is seen as practice, the focus is on how laws are actually applied and enforced in daily life, as
in sociological positivism. This is law in action, showing how rules work within society.
Law as a The other perspective sees law as a theoretical representation or doctrine. Here, law is studied as a
theoretical concept in legal education and academic literature, but this does not always match how law works in
representation practice. This is often called law in the books.
(doctrine)
Law as enforced settlement of conflicts
Law can be seen as a way to resolve conflicts in different ways.
Government The government can use laws to regulate disputes within society, often through legislation and
enforcement.
By a third party Independent third parties, such as courts and judges, can act to resolve conflicts between individuals or
groups in a neutral way.
By any means There are also alternative methods of conflict resolution, like mediation or conciliation, where disputes
are settled without formal court involvement.
In situations where there is no effective law or authority, conflicts are sometimes decided by the
strongest party, using power or force. This is often seen as contrary to the rule of law because it replaces
legal justice with dominance and violence.
Law and politics
Law can be influenced by politics and social power. Some people argue that laws are often made to serve the interests of those
in power or dominant groups, rather than being fair or neutral. As a result, law can sometimes act more as a tool of politics than
as a means to ensure justice.
Legal positivism vs. legal realism
Legal Positivsm Legal positivism says that law exists because it is created (“posited”) by a recognized authority, like a
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, sovereign. The validity of law depends on the fact that it is formally established, not on its moral content.
Legal Realism Legal realism, on the other hand, sees law as a social process. Realists focus on how law actually works in
practice—how it is applied, enforced, and experienced in society. According to them, law has a social
reality and is shaped by practical, real-world factors, not just formal rules. While law may seem
autonomous and neutral in theory, realists recognize that in practice, politics, morality, and social
circumstances play an important role in how law operates.
Micro versus macro-legal comparison
Micro-legal It focuses on small, detailed aspects of law, such as a single rule, a set of rules, one concept, or a specific
comparison branch of law.
Specific elements in different legal doctrines are examined. For example, a concept like “state of
emergency,” “contract,” or “good faith” may exist in several legal systems but can have different
meanings in each. A set of rules, like liability rules, can differ in scope, exceptions, and procedures
between jurisdictions. Even an entire branch of law, such as corporate law or family law, can vary in
structure and application.
Micro-legal comparison also studies how specific disputes are resolved in different jurisdictions. For
example, how French, Belgian, and American courts would handle a dispute over a lease contract.
Typical uses include: academic comparisons of a particular doctrine, law reform where solutions from
other systems are adopted, and comparative case studies on a single legal topic.
Macro-legal It deals with the overall structure and characteristics of whole legal systems.
comparison
This approach studies typical features of entire systems, such as sources of law, the role of judges, and
the hierarchy of legislation. It also classifies legal systems into broad families or traditions, which is called
legal taxonomy, as developed by René David.
- Continental/Civil Law: Laws are codified, judges apply rather than create law, common in
Europe.
- Common Law: Precedent-driven, judge-made law is important, found in the UK, US, and former
British colonies.
- Other classifications may include Islamic law, customary law, mixed systems, and so on.
Micro- and Macro-Legal Comparison
Micro- and macro-legal comparison are connected and help each other. Macro-comparison looks at the whole legal system
and uses results from micro-comparisons, which study smaller parts like rules, concepts, or specific cases. To know what is
typical for a system, you first need to study its micro-elements.
Micro-comparison also benefits from macro-comparison. It helps decide which legal systems to study, understand rules in
context, and explain differences.
- F.ex. it is harder to claim psychological damages in the UK (micro) because the system (macro) sees people as
independent, while in France it is easier because the system sees people as part of a community.
Micro- and macro-comparison work together in a back-and-forth process. You usually start with micro-comparison to learn
details, then use macro-comparison to see the bigger picture. Going back and forth helps understand both the small details
and the whole system better.
National vs. international
- Traditional you have at least more than one element when you compare.
- Comparison between 2 or more legal orders = horizontal comparison.
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, o What is a legal order? It’s a sort of concept that traditionally was attached to one territory/state (in the last
200-300 years). In essence legal orders have been constructed within and for comparative purposes as being
related to the nation state.
o All the examples are the construct of a legal order which is kind of autonomous: which exist in and for itself.
Meaning: in principle you have something as a legal center and that center of that legal order is the
constitution. Around the constitution we build the whole legal life and legal order.
For 200 years we did legal comparison this way: we saw the world as a pyramid.
o Kelsenian pyramid.
You have on top the constitution (basic
norm), followed by a statutory level and a
regulatory framework (f.ex. ordance,
mistrial orders, decrees).
The top is the centre of the legal order and
holds everything together.
Circle: the legal order.
The first lay on top is very general and the other lays are very specific.
F.ex. comparing the value of a minister decree in Germany and Belgium = micro-comparison.
In 1960 there was a decision of the ECJ: they said there is something as an EU legal order.
For about 130 years the legal order on the picture were considered as being distinct. This is
what inter-national comparison is. The two circles are different legal system. You have
different constitutions - they are the core of the legal system.
The legal orders on the picture are considered equal. That’s why we call it horizontal
comparison: because we just go from the one to the other. We’re not doing comparison to
say BE law is better than DE law.
o The point: we’re going to understand how it functions.
If on a particular matter DE law is ‘better’ - it’s for you or a particular
purpose.
National vs. international
Horizontal Horizontal comparison studies two or more national legal systems, such as the UK versus France. In this
comparison approach, the different legal systems are seen as independent and equal. There is no hierarchy between
them, and the goal is not to rank them but to understand how each system works. In reality, legal
systems are never completely separate: laws often cross-national borders, so the idea that law strictly
begins at a country’s borders is a fiction.
Vertical Vertical comparison is more recent and compares national law with supranational or international law,
comparison such as Belgian law versus EU law, or Belgian law versus the European Convention on Human Rights
(ECHR).
Although legal systems are autonomous, they constantly interact. EU judges continuously compare the
general principles of the rule of law within the EU with the practices of member states.
The rule of law ensures that no one, not even those in power, is above the law; that laws are clear,
public, and fair; that justice is applied equally; and that fundamental rights and freedoms are protected.
In some member states, like Germany, the superiority of EU law over the national constitution is still a
topic of debate.
Inter-national vs. internal-national
External External comparative law is the traditional approach and compares legal systems from different
comparative law countries, for example Belgian law versus German law. It studies law outside one’s own national context.
(traditional)
Internal Internal comparative law, a more recent approach, compares different parts within a single national legal
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, comparative law system. This can be done in three ways:
(recent) - Comparing harmonized national law with parts that remain autonomous, f.ex. EU-harmonized
consumer credit rules vs. non-harmonized national credit rules.
- Comparing different branches of national law, such as Belgian corporate law versus Belgian
insolvency law.
- Considering legal pluralism, where multiple autonomous legal systems coexist within one
society.
o Every country has some internal diversity: certain professions or communities have
their own norms and courts, like self-regulation by doctors, indigenous courts in
Canada or the US, or Islamic family law in Romania. Supranational legal systems, like
EU law or the ECHR, add an extra layer of norms. This creates a complex legal pluralism
where boundaries between systems blur, and one can no longer assume there is a
single central national legal system.
The research method
Foreign Law Studies – you study foreign law in itself (purely in its own context) ≠ comparative law
- Are you doing comparison if the prof as a Romanian is looking at British law? He is just reading something. No, this is
NOT comparative law.
o Prof: the moment you’re starting to be interested in foreign law and you’re interacting in a way or another
with a legal order and you start to think about another order = you’re doing comparative law = legal
comparison.
- Views foreign law through their own lens > sees foreign law in terms of their own doctrine > observation of foreign law
is inherently comparative.
o This means that when you look at foreign law, you naturally compare it to your own legal system. You
understand it through your own legal background. Even if you don’t mean to compare, you are still doing it.
Comparative law in the strict sense – is trying to identify, to explain and to assess, measure etc. the similarities and differences
between legal systems and orders.
- Why it’s about the differences? Without the differences there wouldn’t be comparative law.
- Comparison starts from the moment you realize there is a difference.
There are a variety of purposes for which law is studied and compared:
Contrastive comparison Identifying differences.
- Historically comparative law started with contrastive comparison. It started with
the fact that basically you have a sort of curiosity of saying: things are different.
From this point you ask yourself: why do they do things differently?
Integrative comparison Identifying similarities or common elements.
- Integrative comparison took over. The idea was to turn comparative law into a
science of similarities and to find the bases of a common law of humanity.
- EU marital arrangements, contract law etc. was driven by this idea in
comparative law that legal systems can converged and that they can be
integrated and harmonized.
- In order to organize our global and international society you need the law to go
through this path.
o This was the basis of building international law.
- Many people that are going on the line of integrative comparison not only they
are positivists, but in many cases, they lean more towards practical comparison.
o The idea that what they are doing in comparative law has a value and
that is given by the fact that we try to harmonize law.
No universal accepted unified method = academic discussion among ‘theoretical comparatist’.
o You can play with methodology, but there is NOT one absolute method to what makes a good comparison.
Why? Law is a social construct, so we’re NOT entirely sure what law is in the first place.
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, F.ex. if you believe that law is just rules (as Kelsen, other positivist etc.) you can find it very easy to
integrate, because rules are rules - you can change them. If you believe that law is more about history
and culture than it’s more difficult to integrate things through histories and cultures.
o There is no universal method.
Comparative law vs. other disciplines
Legal history
Comparative law entertains some relations with other disciplines.
Legal history is NOT law, because it doesn’t deal with valid law (in principle) or existing law. Most of the time it deals with law
through the past.
There are many points of similarities between legal history and comparative law.
- Methodological similarities
o Legal history ≈ comparative law on the dimension of time
Comparative law difference about the space.
Legal history is about difference through time.
It’s helpful to comparative law just in order to support it in a number of points.
It can help comparative law by showing that legal realities changes and once legal reality
changes, legal commentary changes, the doctrine, the idea around law etc.
o It enables us to think that law is actually part of history.
o Prof – Kelsen is wrong on one thing: he doesn’t have an interest in the history. For
him history it’s just out there.
Comparative legal history is when you’re dealing with historical comparison of historical moments.
BUT both are using the same way of thinking.
o Legal reality changes over time
Legal history is very important because it tells us that what looks like a monolithic structure (f.ex. the
law of the UK) it can go through change.
This change can be produced sometimes by a simple decision or just a simple judgement of
the court, which completely change legal reality from one day to another.
o F.ex. the important role of the supreme court. The supreme court wasn’t there from
the very beginning, and it actually produced its own role. If you look historically at
the US constitution, you’re going see that supreme court became the supreme court
as we know it today gradually. The first power grab it took it was in the case
Marbury v. Madison. It this case the supreme court said: we’re going to take a look
and interpret the legislation the state Washington was passing in relation to the
constitution. By doing this they started the constitutional review.
o Doctrine/legal theory changes over time
F.ex. there was a professor of constitutional law in France, and he wrote a book on the constitutional
law in 1930’s. He was basically saying that the sources of legitimacy of the French constitution were
the people, democratic sovereignty, the constitution itself etc. In 1939 he sorts of translated a book
from Germany which was a bit about how things are going on in a constitutional regime, which is a
different type. In 1940 he wrote the same book and now the sources of legitimacy where no longer
that, but: the nation etc.
Conclusion: things change, people change their mind. They also change the way their looking
at legal realities, legal concepts etc.
Legal history can bring you into understanding why your judgement goes in direction X or
why a lawyer is writing Y – what are the values.
o Doctrine/legal theory does not evolve 1-to-1 with legal reality.
Just because the practical application of laws changes doesn’t mean that legal theory evolves at the
same time or in the same way.
Sometimes legal theory is behind reality, and other times it may anticipate changes before they
happen.
o Content of legal concepts/terms changes (cf. language evolution)
Just as languages evolve over time, so do legal concepts and terms.
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, - Legal history (shows that law is dynamic)
o Changes in the reality of the law (= socio-political history)
Comparing the law of the past with the law of the present: both in terms of now or then (‘translation’)
o Changes in the representation (= legal doctrine, concepts) of the law (= history of ideas)
Comparing the representation of the law (doctrine) of the past with the representation of the law
(doctrine) of the present
F.ex. how we’re talking and thinking today about colonialism. It completely changed. History
produced things change. It changed because of various socio, political and economical
factors.
o Comparative law and history are going to show you that things were different.
Either they were different in a different place, either they were different in a
different time.
Law is mostly supported by ideas; it acts as a vehicle for them. For example, who should be
compensated if someone breaks a leg? Some legal rules can be extremely technical and very detailed,
focusing on concrete situations. But even these small rules are connected to bigger questions, such as
“Who should rule?”—which is a political and philosophical question.
Legal history is not just a history of institutions or legal concepts. It is also a history of ideas.
These ideas supported political, social, and other projects. Looking at law this way shows that
law is a very strange kind of machinery. It doesn’t exist only in books or courts; other people
rely on it too.
o F.ex. merchants, bankers, and others rely on law because they believe there is value
in what legal authorities do. From this perspective, legal history is also a history of
social practices—practices around the “strange things” we call law. It’s not only our
own practices, but also the practices of people influenced by law.
Legal History as an Aid in Comparative Law
Studying legal history helps in comparative law because it can reveal things that would otherwise stay unnoticed. If you only look
at private law and legal doctrine without considering their history, you can miss important factors. History also helps explain
similarities and differences in law and legal doctrines. It shows how laws change over time.
- F.ex. the concept of “emergency” today is very limited and conservative. Special powers are used for a short time, and
once the situation is back to normal, emergency powers are no longer applied. However, historically, emergency
powers often caused lasting changes. Even if formally the emergency ends, some effects remain. By studying about 100
years of emergency legislation in Europe, we can understand how emergency powers influence and change legal
systems over time.
Sociology
Social sciences They try to use scientific methods. You can measure stuff (economic, political science).
Humanists They are NOT scientists.
Law Is something in between.
Sociological positivism You can’t understand society by looking at social relations. Law is just another form of
regulating relations between human beings. One across many others.
- Max Weber: he was a lawyer first. But after that he was one of the most
prominent sociologists + he was also a sociologist of law. Law has a value but
only within the process of rationalization of society.
Marxist The law is just a screen smoke for economic inequalities. Law is just an instrument of
oppression.
- What really matters in questions for law for a Marxist: who speaks? Where is
the capital? Where is the money from? What is the structure of power? Why is
that?
- Law can be for Marxists an indicator for inequality in society. It can be an
indicator for other things etc. And it can be a starting point for a sociologist of
law.
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, Feminist sociologist They are going to ask other sort of questions.
- Why in the French code the women found itself in the position that once she
was married not being able to dispose of her own goods?
Sociology of Law
- The sociology of law studies how society influences law and how law influences society, with a focus on the social
effects of law.
- It is a subfield of sociology and differs from traditional legal studies because it looks at law from an external, non-
normative perspective. Law is studied as a social phenomenon, not just a set of rules that must be strictly followed.
External Perspective on Law
- Sociologists observe law from the outside, without judging its morality or fairness. They often criticize lawyers for
focusing too much on internal legal logic and too little on social reality. At the same time, sociologists with a legal
background recognize that law has its own internal logic and structure.
Historical Context
- The sociology of law emerged in the 19th century during the rise of social sciences.
- At that time, social scientists used empirical and measurable methods, while humanists argued that phenomena like
ethics and literature could not be measured scientifically. Law occupied a hybrid position: it was neither fully scientific
nor fully humanistic but developed as a discipline combining elements of both approaches.
Influence of Positivism
- Sociology of law assumes that societies can be understood by analyzing social relationships. Law is seen as a tool to
regulate these relationships. The complexity of a legal system reflects the complexity of society: the more complex the
society, the more complex its legal system.
Relationship Between Sociology of Law and Comparative Law
Comparative Law → Empirical material from comparative law allows sociologists to study how different legal systems
Sociology of Law function within their societies. By mapping legal variation, sociology can analyze how law is shaped
by social contexts and how it shapes society in return.
Sociology of Law → Sociology provides neutral analytical concepts, allowing legal phenomena to be expressed in a
Comparative Law common language. This prevents comparative studies from being biased by a single legal system. It
also gives contextual insights about how and where law operates, helping explain why legal
differences exist between countries by considering social, economic, and cultural factors.
Anthropology
Legal Anthropology / Ethnology
- Legal anthropology studies how law develops in different societies. It looks at what is common to all societies and what
is unique to certain cultures.
Legal Anthropology (from the 1940s)
- Researchers observed remote or non-Western societies. They studied legal rituals, like rites of passage, to understand
social norms. They also compared legal rituals to other types of social or religious ceremonies. The goal is to see law as
part of culture.
Legal Ethnography
- This studies smaller or less modernized communities. It looks at how law works in practice, especially in informal or
mixed systems.
Relevance for Comparative Law
- It helps understand law in its cultural context. It shows how multiple legal systems can exist in one society (legal
pluralism). It also helps compare state law with local or customary rules, like colonial laws vs. indigenous traditions.
o Two Ways to study Law
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