23 Roguin, "Traite de droit civil compare"; "Le mariage" (Paris, 1904), Preface.
24 Tarde, "Le Droit compare et la sociologie" in "Bulletin dela Societe de Legislation Comparee" (1900), pp. 529-537.
2: Wherein These Conceptions Fail. To indicate the aim which, in our opinion, the study of comparative law should set itself, it suffices to criticize the various conceptions which have made of it a science.
As to the shortcomings of the first three opinions which hold it to be an art, we merely refer to the excellent critique by Lambert, whose very considerable work has already been cited.26
25 Saleilles, "Conception et objet de la science du droit compare," contributed to the International Congress of Comparative Law of 1900, published in "Bulletin de la Societe de Legislation Comparee" (1900), pp.383-405.
26 Lambert, "Etudes de droit commun legislatif ou de droit civil compare, Introduction: La Fonction du droit civil compare" (Paris, 1903), vol. i, pp. 8-107.
But Lambert's system itself seems as narrow as those just mentioned, which he refutes. He opens with a high conception of comparative law, calling it a science27; he ends by reducing its function to an art,28 namely, of deriving from the different systems of law studied a comparative common law or law common to all. Such a conception is not novel. It was recommended by Saleilles, who, it is true, did not consider it the sole object of comparative legislation but simply a secondary aim. And in this respect Saleilles' theory is not susceptible of objection.29 That of Lambert, however, is inadmissible, as it narrows the aim of the science.
Furthermore, we must realize that the uniformity of law will not be attained, as Lambert claims, from the comparative study of law, but from other and deeper causes.30
27 Ibid. p. 7.
28 Ibid. pp. 916-918, 922-924.
29 Saleilles, ibid. p. 397.
30 Will unification one day be complete and absolute? It is generally agreed that it will not, and most writers believe it neither possible nor desirable, because, they say, it would threaten the originality of the institutions of each country. Others, especially Lambert, who assign so great an importance to the study of comparative legislation as a means towards uniformity, believe, on the contrary, that while absolute uniformity of legislation is desirable, it is not, however, possible (Lambert, ibid. pp. 907-908). Others still, among whom may be counted Hue ("Le Code civil italien et le Code Napoleon: etudes de legislation com-paree," 2d ed., Paris, 1898; vol. i, preface), maintain that uniformity of legislation is possible and desirable. Hue regards the Napoleonic Code as a great step in this direction, and thinks that unity will be realized the day when other nations will have imitated the Napoleonic Code, and when international agreements will have been concluded in large enough numbers.
I believe that we must here draw a distinction. Unity of law among nations of the same race, especially among the Latin countries, is almost an accomplished fact, since all have followed the Napoleonic Code very closely. The fundamental differences separating them in the past, in matters of civil marriage and divorce, tend more and more to disappear. At present they differ only in detail, nowhere in essentials.
Unity among different groups of nations will be far more difficult to realize, because between them there are great differences founded on history and national character. Yet it would be going too far to say that uniformity will never be possible. The characteristic trait of the evolution of modern societies is the very fact that they separate away from their past and their individuality. All countries are subjected to-day to the influence of new. phenomena of a universal character, which produce the same effects and for which we endeavor everywhere to apply the same solutions, although the political, social, and religious institutions of these nations vary widely. Above all is this true of commercial laws. In this field Turkey and Japan have borrowed their law from the Western nations. It is this very phenomenon that explains the great impetus given to the study of comparative law. Again, nations are coming into closer union. Legal relationships in this way tend to have, as we have already noted, an international character, and to be regulated conformably. Civil law tends, at least along broad lines, to become one with private international law, or rather, the latter will come to be' merely a new phase of civil law, because in the future it must undertake to provide a single set of rules for legal relationships of an international character. In this way it will become the most powerful practical agent working for legal uniformity. These two circumstances tend to efface the individuality of national law and to destroy all the distinguishing features of the four groups of legal systems. It is not too rash, therefore, to say that just as isolation, which was characteristic of the past history of nations, imparted to their legislation its particular and historical character, so their drawing together and the uniformity of the phenomena to which they are at present subjected tend in a more or less distant future to produce uniformity of law.
The second purpose which Lambert assigns to a comparative common law, namely to aid in the interpretation of legislation in all countries, is a proper one, but we have already pointed out that, while it is one of the most emportant elements to consider, it is not the only one.
Its object is to present, with the history of law to which it is intimately bound, and with the results obtained from the study of the various phenomena as a whole, to which we have referred, the true philosophy of institutions, or, better, to create a true jurisprudence.
But it will not be equally realized in all domains of the law. It has already begun to be evident, and it will soon be realized, in those branches in which social phenomena exercise a preponderant influence, and where the "rapprochement" between States has gone farthest,-notably in commercial law, and, on the civil side, in the law of property, obligations, and things. The same is not true of the law of the family, though even here, in certain matters, a tendency towards unity is discoverable, especially in civil marriage, divorce, etc.
[This subject is dealt with in part iii ("The Movement for International Assimilation of Law") of the volume above cited in note 2, "Progress of Continental Law in the Nineteenth Century."-Transl ]
This science will perform the same purpose and function that natural law or the philosophy of law in its metaphysical aspect did in the past and still does to-day.31
Jurists unanimously agree that comparative law should be studied by the method of observation. But agreement ceases when it comes to determine how to observe. The tendency which has unfortunately dominated so far is to turn to the same dogmatism that was practised in the study of the Civil Code. This method cannot secure from the study of comparative law all its possible advantages.
The true method, we believe, is the one which we recognized as proper in the study of the history of institutions, of which comparative legislation is merely a continuation.32 This fact was realized and emphasized by Flach. He was the first to put the method into actual practice,33 and it has since been approved by the most distinguished jurists.34
Comparative law must, indeed, be closely related to the history of legal institutions, which it merely continues by taking them up precisely at the point where history leaves them. In comparative law, as in the history of law, we should, therefore, observe and analyze the relations between juridical institutions and the political, economic, and social organization of the countries where they come into existence, and examine that mutual dependence which makes so fascinating and instructive a study. Institutions are to be studied with reference to the atmosphere in which they developed, for otherwise they cannot be understood and our work will but amount to a feat of learning or of memory. It is impossible, for example, to understand the agrarian legislation of England, Germany, or Russia, unless we know the influence which large landholdings have had upon the national and foreign policy of these countries. As with the history of law, the study of comparative law should begin with the fundamental principles of the legal institutions of the four groups of countries indicated. The student will observe the relation of the institutions to the conditions in which they developed; the modifications through which they passed in each group of countries, by reference to the diversity or identity of the influences which were at work upon them; and the changes in statutes and decisions which may have taken place by reason of these influences. This general survey will provide an excellent acquaintance with the nature of the institutions which are to be studied later. After this, the study of the institutions of each of the four groups of countries will be begun again in greater detail, and they and their results will be compared. In this way it will be evident whether any tendency towards uniformity is manifest among the different laws as a result of the similarity of the phenomena which caused them, or whether, on the contrary, any appreciable divergence is observable. In the latter case the question will arise why there has been this divergence, and, wherever the causes do not seem irrevocably opposed, the system will be sought which has already obtained or appears to enjoy the weight of approval of the principal nations.35
31 This matter will be considered in Sec. 7.
32 Since Lambert reduces comparative law to a mere art, it follows that though admitting the assistance which the history of law renders this science, he does not believe that it can adopt the same method. Cf. Lambert, ibid. pp. 913-926.
33 In his course of comparative civil law (in the subjects of family and property law) which he has taught for more than twenty-five years in the Ecole Libre des Sciences Politiques.
34 Bufnoir, "Bulletin de la Societe de Legislation Comparee" (1890,), p. 60; Saleilles, "Conception et objet de la science du droit compare," in "Bulletin de la Societe de Legislation Comparee" (1900), p. 395.
35 This was the method and the conception of comparative law pursued by the author in his thesis for the "doctorat" at the University of Paris: "Influence des phenomenes politiques, economiques, et sociaux, sur 1'organisation de la famille moderne." Since 1900 he has taught this subject, as a course on comparative civil law, at the University of Chile.