In the author's view a dividing line can be drawn between, on the one hand, teaching comparative law as an independent discipline with its own history, methods, goals and functions, and the whole "curriculum" of legal studies based on a comparative attitude and carried out with the comparative method, on the other. The differences between the traditions and present-day practice of universities and law faculties in the Civil Law and the Common Law countries in this field may be interpreted as characteristic for the "style" of the entire legal systems belonging to one of these two big legal families.
Legal historians have observed that many legal norms have remained in force for a long time, yet the great degree of social change would prima facie also entail legal innovations. But there have been fewer than expected Can one construct a general theoretical framework for assessing explanations concerning legal change and legal stability? Further, can such a framework be constructed from the perspective of comparative law? It may perhaps be argued that comparative law is not sufficient for constructing such a theory, a general analysis of society is also needed. But even if concrete conditions, and cause and effect relations cannot be entirely explained by an abstract scheme, it is at least reasonable to hope that such a scheme may clarify some of the basic concepts at work and enhance insights into the nature and progress of law. The first part of this paper considers the nature and scope of comparative law and identifies different approaches to the subject adopted by contemporary comparatists. In the second part, the problem of legal change is discussed from the standpoint of a particular theoretical perspective represented by Professor Alan Watson, one of the most productive post-War comparatists and legal historians.
The changes in the legal universe that have been taking place in the last few decades have increased the potential value of different kinds of comparative law information and thereby urged new objectives for the comparative law community. The comparative method, which was earlier applied in the traditional framework of domestic law, is now being adapted to the new needs created by the ongoing globalization process, becoming broader and more comprehensive with respect to both its scope and goals. Associated with this development is a growing interest in the question of transferability or transplantability of legal norms and institutions across different cultures, especially in so far as current legal integration and harmonization processes require reasonably transferable models. This paper critically examines the issue of transferability of laws with particular attention to the theory of legal transplants propounded by Professor Alan Watson, one of the most influential contemporary comparatists and legal historians. It is submitted that the element of relativity imposed by the special relationship of the law to its socio-cultural environment must be taken into consideration when the comparative method is applied. However, the view held by some scholars that legal transplants are impossible betrays an exaggeration of cultural diversity as it contradicts the teachings of history and is at odds with recent trends towards legal integration in certain world regions.
In the introductory
part of his study the author deals with the main features of the comparative
law related research during the first decades of the 19th century. He analyzes
the various trends, the representatives of which deal with comparative law related
research in this period. France can in particular be viewed as center of
comparative law related research during the first half of the 19th century. The
birth of comparative law in England is strongly linked with the Ancient Law
of Sir Henry Sumner Maine published in 1861. Maine is the first in England to
be endowed “ad personam” with the Chair of Comparative Law in Oxford in order
to teach legal history and comparative law. It is undoubtedly the Roman law
that stood in the focus of interest of Maine serving as basis to carry out
comparative legal studies. That approach is in particular manifested in Ancient
Law as Maine attributes paradigmatic significance to the various
institutions of Roman law. The author of the paper draws in particular a
comparison between Maine and Bachofen as far as their approach relating to the
basis of comparison is concerned. The special role that Roman law, i.e. Civil
law, played in the development of English law during the centuries is also
underlined in this study. In the last part of his paper the author emphasizes
the contemporary significance of Ancient Law for the comparative law
This article analyses the way of the French Constitutional Council, starting with its famous Association decision in 1971, transformed a brief reference to historical declarations of rights in the thin Preamble of the current French constitution (adopted in 1958) into a wide-ranging judge-made catalogue of fundamental rights. This, combined with two important reforms of the procedure for submissions of statutes to the Constitutional Council for review (in 1974 and 2008), are gradually establishing the Constitutional Council as an important actor in the legislative process and a central body for the protection of human rights in France. The article also briefly explores the scope and limits of this protection. It then discusses recent proposals for amending the Preamble. It analyses the only amendment so far, namely the inclusion of a reference to the Charter for the Environment, which aimed at providing a constitutional basis for the protection of environment, as well as other controversial suggestions, such as those aiming at enabling positive discrimination measures towards minorities, the guarantee of media pluralism, the protection of privacy and personal data and the respect of human dignity. It concludes on the use and misuses of comparative law for constitutional reforms.