Comparative law studies international contracts.
Comparative law is an analysis methodology that consists of comparing how different legal systems address the same issues. In this way, different solutions can be examined regarding analogous or similar events.
The study of various legal institutions and structures is the pillar that supports the development of comparative law. This comparative analysis of figures that come from multiple traditions requires considering political, historical and other elements.
It is considered that law , in this framework, is the object of study. The comparison , meanwhile, constitutes the intellectual process that is carried out with it. In this way, the influence exerted by operators (such as magistrates), culture and society in general on legal systems is contemplated.
History of comparative law
The history of comparative law can be analyzed from different perspectives. There are those who place the birth of the method in the 18th century , when the codes stopped being written in Latin and began to be developed in the language of each country. In this framework and in the face of the new codification, comparative law emerged as a specific branch .
Another view places the emergence of comparative law in the 19th century based on the interest of jurists in establishing comparisons between different nations. This intention emerged in Germany and then spread to France before continuing its expansion.
In this context, in 1900 the first International Congress of Comparative Law was held in Paris . There specialists expressed their intention to move towards a unification of law for all human beings, transcending national borders. This objective gave comparative law a central role in understanding the differences between legal systems and thus opening the door to their minimization or elimination.
Continuing with the historical development, comparative law was strengthened in the first decades of the 20th century thanks to the creation of several specialized institutes and academies. Comparative law associations were also established.
The philosophy of comparative law has different currents.
Its characteristics
Comparative law is based on the analysis of the similarities and differences of the legal systems of each country . According to the criteria of each analyst, the positive points and shortcomings of each system can also be recognized and thus promote decisions in order to optimize judicial procedures and institutions.
The various research methods in comparative law can therefore be useful for legal and policy reform . In a broad sense, its techniques are valuable for any area of law.
It is important to consider that the comparisons carried out in this methodology entail various difficulties. Beyond the similarities and discrepancies, the different ways of interpreting the law, linguistic obstacles and sociocultural aspects, for example, must be taken into account. Likewise, possible incompatibilities must be examined and the prejudices of the person making the comparison must be avoided.
Another issue that must be considered is that it is often debated whether comparative law is just a method , a discipline or even a science . In any case, it is clear that comparative law has a wide scope and usefulness in multiple areas.
Comparative law contributes to financial regulation.
Importance of comparative law
Comparative law is important for numerous reasons. On the one hand, the growing number of transnational phenomena must be taken into account, many of them motivated by globalization. In this context, the existence of multinational companies and foreign trade operations also produce more and more international legal links.
The current relevance of comparative law is also given by the functioning of supranational organizations (such as the European Union or Mercosur ), as well as by international conventions and bilateral and multilateral treaties.
The same can be said regarding human rights cooperation and means of international arbitration, which include tools and mechanisms such as the International Criminal Court , the International Court of Justice , the European Court of Human Rights , and the Inter-American Human Rights System. .
With this panorama, comparative law is transcendental for jurisprudence and the work of legislators. In addition, of course, to academic or theoretical interest.
In short, comparative law contributes to understanding between States , favoring the understanding of different norms; helps optimize national law thanks to the comparative process with other systems; and allows for harmonization and even unification of law in different areas (such as trade).
Legal families
There are more than one hundred legal orders that exist worldwide. In order to facilitate their analysis and comparison, certain common characteristics are considered to classify them into sets called legal families .
A legal family, therefore, is a group of legal systems that share features linked to their origin, their doctrine and their institutional forms.
Anglo-Saxon law or common law is a legal family. It is based on the binding nature of precedent (the lower court must follow the decisions of the higher one). Judges, in this framework, can use previous resolutions.
Roman-Germanic law , meanwhile, uses legislative bodies to codify the law, which it interprets according to normative provisions and applies with the most appropriate precept for each case. In this legal family, legislation takes precedence over the general principles of law and custom.
Islamic or Muslim law, on the other hand, is based on the rules of Islam, which are immutable and are mainly interpreted according to the Quran .
The legal family of African law , likewise, integrates custom into the legal order, while Asian law appeals to the law applied by the courts as a tool of social order and conflict resolution, privileging conciliation and mediation and betting on persuasion. .