Comparative Law Essays

Also, in Chapter XI (entitled 'How to compare two different Systems of Laws') of Book XXIX, discussing the French and English systems for punishment of false witnesses, he advises that "to determine which of those systems is most agreeable to reason, we must take them each as a whole and compare them in their entirety." Yet another place where Montesquieu's comparative approach is evident is the following, from Chapter XIII of Book XXIX: As the civil laws depend on the political institutions, because they are made for the same society, whenever there is a design of adopting the civil law of another nation, it would be proper to examine beforehand whether they have both the same institutions and the same political law.

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They should be in relation to the nature and principle of each government: whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institutions.

They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.

The comparative study of the various legal systems may show how different legal regulations for the same problem function in practice.

Conversely, sociology of law and law & economics may help comparative law answer questions, such as: believed that, for purposes of classifying the (then) contemporary legal systems of the world, it was required that those systems per se get studied, irrespective of external factors, such as geographical ones.

His comparative approach is obvious in the following excerpt from Chapter III of Book I of his masterpiece, De l'esprit des lois (1748; first translated by Thomas Nugent, 1750):[T]he political and civil laws of each nation ...

should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another.Comparative law is an academic discipline that involves the study of legal systems, including their constitutive elements and how they differ, and how their elements combine into a system.Several disciplines have developed as separate branches of comparative law, including comparative constitutional law, comparative administrative law, comparative civil law (in the sense of the law of torts, contracts, property and obligations), comparative commercial law (in the sense of business organisations and trade), and comparative criminal law.Studies of these specific areas may be viewed as micro- or macro-comparative legal analysis, i.e.detailed comparisons of two countries, or broad-ranging studies of several countries.The main differences between Law Families are found in the source(s) of Law, the role of court precedents, the origin and development of the Legal System.Montesquieu is generally regarded as an early founding figure of comparative law.Comparative law may also provide insights into the question of legal transplants, i.e.the transplanting of law and legal institutions from one system to another.It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken.The importance of comparative law has increased enormously in the present age of internationalism, economic globalization, and democratization.


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