October 10, 2012

Comparative law : a way of unification ?


Comparative law : a way of unification ?



Comparative law has undergone simultaneous development alongside the development of European private law. Initially, private law was essentially a national topic. However, with the development of European private law, comparative law was born. Why comparative law ? To have the best law in Europe, we must compare ours to the other national legal systems. From this, we can chose the best one, or create a new one. We compare to unify the different national laws and to have a unified european law. A uniform law “cannot be achieved by simply conjuring up an ideal law on any topic”. (An introduction to comparative law, K. Zweigert and H. Krötz). The best example is the United Nations Convention on contracts for the international Sale of Goods (CISG), 1980.


On an other hand, comparative law can be an instrument to reach a political goal. Comparison can show the differences, more than the similarities. Furthermore, it can be an obstacle to unification. If the comparison shows a “common core”, this majority solution still not necessarily be superior.


But it has been already demonstrated that the comparative study of national jurisdictions can be and are used to adopt a certain solution at the European level. The European legislature wants to avoid an outcome under which one or more national jurisdictions is given preference over the other. The comparative law shows how national jurisdictions integrate european directives in their national level too.


Comparative law is not only a way of unification but it is one of its major objective. It can be a way of harmonization too. Harmonization exists to do that national countries can work together and have harmonized legal system. Unification is the rule of directives : it is the same law in every European country.


Comparative law can help the countries to improve their legal systems.


Sources : D. Heirbaut and M.E. Storme, The historical evolution of European private law (the Cambridge Companion to European Union Private Law, Cambridge University Press, 2010); H. Beale, B. Fauvarque-Cosson, J. Rutgers, D. Tallon and S. Vogenauer, Casebook on the Common Law of Europe: Contract Law (Hart, ed. 2, 2010).


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