October 18, 2012

The necessity of comparative law

During the 19th and 20th centuries the globalisation and a significant increase of the number of transnational contracts explained the need of knowledges about the other legal systems. It is the role of the comparative law.

This is the study of differencies and similarities between different legal systems. There are differents aims to the comparative law.
First of all, to improve knowledges. The law is no longer considered merely national, comparative law can allow to learn about foreign legal systems. The study of different legal systems can also help find the best solution for a given problem, like in contract law, by offering a variety of solutions that can not be offer by the study of a single system.
Second of all, and according to Th. Kadner Graziano, the comparative law was « primarily used to improve one’s own domestic law ». The analysis of foreign legal systems may, by contrast, understand its national law. This give the possibility to discover the originality of its law and its shortcomings.
Finally, the comparative law brings to the development of europeanisation and internationalisation.

In Europe, for example,contract is a concept thatdoes not touch the same aspects in all legal systems. There are three major legal families. The « contrat » in French law is not totally the same than the « contract » in English common law or « Vertrag » in German legal system.To be able to establish contracts we need to understand and know the differences between them. The Europeanisation of private law refers to a process that aims to the soft harmonisation of private law. We need to understand the niceties of every legal systems to be able to develop texts like « The Principles of European Contract Law » or « The UNIDROIT Principles of International Commercial Contract ».

Nowadays it’s a necessity for the european lawyers to understand and learn about the different legal systems to develop a European legal system.

Sources: Th. Kadner Graziano ; 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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