This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
The study of foreign institutions goes back to an early period. The philosophers of the 1700s devoted themselves to it, and Montesquieu gave it an important place in his work. Consequently public law, which arose out of the Revolution, felt its influence.
This branch of investigation was pursued during the 1800s; but the history of law attracted the greatest interest and comparative study was limited to Oriental civilizations. Maine in England, Laboulaye, Dareste, and Gide in France, Kohler, Jhering, and Savigny in Germany, to mention only the best-known, have revealed new phases of the life of the law, and therefore of the society of civilizations, far removed from us in time and space. During the last twenty-five years this branch of investigation broadened its field to include the present law of Western countries. To the study of the history of early institutions or of institutions of peoples of different civilization, has been added that of comparative legal ideas, which is to-day gaining momentum in almost every country.19
19 An example of the earliest work upon general comparative law is C.-F. Gabba, "Introduction aux etudes de legislation comparee" (Milan, 1862); Gumercindo de Azcarate, "Essai d'une introduction a l'etude de la legislation comparee" (Madrid, 1874); De Filippis, "Cours complet
1: Various Opinions of the Object of Comparative Law. Everyone is not yet agreed upon the aim of comparative legal science, and it will be proper here to examine in turn the various diverging views.20
These diverging opinions fall into two classes: those that regard comparative law as an art, and those that regard it as a science.
(1) Comparative law as an art. Among the former we count four shades of thought. For some the object of this study is merely to serve for initiation into an acquaintance with foreign law. Its value, therefore, is scientific and in practice it will tend to facilitate interpretation in cases of private international law.
Others believe that comparative law serves merely to animate and modernize the study of the private law of a country. This view prevailed in France, when advanced elective courses in comparative civil law were introduced.
Yet others believe the study is indispensable in the preparation of internal legislation, since it indicates the way in which the legislature may carry out future reforms.
A fourth theory, to which we have already referred,21 was proposed by Lambert.22 According to him, the study of comparative law is of very special importance. It serves to separate from the different legal systems studied a comparative common law, or law common to all de droit civil compare" (Naples, 1881, 10 vols.). The work in French by Saint-Joseph, "Concordance entre les Codes civils etrangers et le Code Napoleon (2d ed. 4 vols., 1856), is not worthy of being classed among works upon comparative law.
20 The Congress of Comparative Legislation, which met in Paris in 1900, strove to reach an agreement upon this question in the different branches of law. The contributions upon comparative civil law evidence the very great diversity of opinion upon this important subject.
21 [Alvarez, "Une nouvelle conception des etudes juridiques et de la legislation comparee," pp. 97-99.-Transl.] nations. This would have a twofold purpose: first, such a common law would constantly react upon the different legal systems from which it was derived and serve as a guide to interpretation by enlightening the courts and inspiring legislative reforms; second, and more important, it would tend to unify the private law of all countries, or at least to lessen more and more the accidental differences in law.
22 Lambert, "La Fonction du droit civil compare" (Paris, 1903), vol. i [translated in part, ante in the present volume].
(2) Comparative law as a science. Three names are to be considered in support of the various opinions of the second category.
Roguin believes that comparative law is a science which aims to study and collate the law of different countries in a systematic order, with the object of placing stress upon the resemblances and differences in the rules adopted by various countries, to solve the many problems arising out of organized society.23
Tarde, on the other hand, does not look upon this science from the point of view of the practical ends which it may serve. For him its object is scientific: to arrive at a genuine classification of the various types of given juridical institutions. This classification would be such that all legal systems would find a place there, and the evolution of each type of institution could be followed. He would create a classification of different types of systems similar to the classifications in other branches of human knowledge: botany, zoology, mineralogy, anthropology, linguistics, religion, etc. This study would be an aid to sociology.24
Saleilles regards comparative law as both a fundamental and an auxiliary science. As a fundamental science it aims, first, to study different legal systems from the social point of view, that is, to observe them in actual practice and to compare the results obtained; it should then compare, on the basis of their fundamental points of likeness, the general principles of law and usage resulting from the study of distant legal systems. Finally, as its conclusion, it should formulate the type or types of legal systems met with; and this comparative critique would serve as a goal toward which the legal systems of different countries might gradually strive, subject, of course, to the retention of traditional forms and the historical variances distinguishing them. In this way comparative law furnishes an ideal of each institution studied, while remaining indifferent to its introduction in any one country. The latter problem, indeed, constitutes what is called legislative policy. As an auxiliary science, comparative law should aid in the progressive development of national law by setting a positive goal (alike for legislative evolution, the theories of writers, and for judicial interpretation), which would enable these to approach as near as possible to the ideal type and so make them in the end the material for a common law of civilized humanity.25