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May 07, 2010
Why to study comparative law
As we have learned in the ICP Workshop, comparative law is the only true juridical science. Because instead of just noticing actual law as it is, by studying comparative law you understand that law is no absolute given fact that is to learn by heart.
It becomes very clear that law is relative. Law is made by human beings to satisfies the needs of society. It therefore varies from country to country and even from community to community (where there is an Selbstverwaltungsrecht der Gemeinden at least, coercively less in an État centraliste). There is no absolute law we should obey as the foundation of ultimate justice.
Looking at other countries law helps understanding other cultures. Comparative lawyers seek to understand the reasons for a certain legal system or a certain norm. When you are surprised about the apparent unfairness or exaggerated protective effect of a single norm you will find that this norm is perfect as it is when put into its contextual legal system. There is a harmony of norms inherent to each legal system.
Searching the reasons for the existence and the content of a norm is maybe the most important quality a lawyer should have. Because juridical skills like interpreting a norm and apply it in a dogmatically and logically correct sense and in the respect of fairness and justice are skills that derive from the ability to understand the background of a norm and what this norm is meant to effect.
With the skills of understanding the relationship between norm and objective, to critically wonder whether a norm fulfills the aim, you are competent to create law that is reasonable and understandable, because you thought a lot about terms and notions also.
Comparing your national legal system to the law of another country helps understanding your own legal system. When you place terms and instruments in the context of different regulations the differences between the instruments appear and therefore the characteristics proper to each instrument become evident. It is like a negative definition, a a contrario description. How describe black? It`s very dark. And it is the opposite of white.
And when you know black and white you can understand what grey is like. Or PECL or UNIDROIT, a mixture. You can then proceed to try to find common points and even harmonise different systems.
Although I have sometimes the impression that studying different legal systems at the same time lead to me not knowing any norm anymore due to confusion, I found it helpful to study parallely French and German law. Not only the law itself but also the method . The French have a very strict binary approach -based on the philosophy that everything in the world can be split into two, like ying and yang or male and female or good and bad- putting the answer to every problem into two parts. It seems strange at the beginning, but somehow it is just the same as the German "es kommt darauf an", the so typical answer of lawyers who then differentiate their answer. "ja, aber" or "nein, aber". There`s always a principle and always an exception. But often there is an exception of the exception and this fits not easily into a binary plan. Anyway, the combination of different methods has turned out to be very helpful. One can adapt the approach to the nature of the problem. And the most acceptable solutions, acceptable by all parties, are those based on compromises, on combinations of solutions.
Therefore it is worth getting a bit confused by doing comparative law. In the end there are moments when you notice that you have actually learned something. And I think the ICP Workshop was useful, because it brought together once the three different regulations about specific legal problems and clarified confusions.