Comparative law compares foreign and domestic legal systems to ascertain similarities and differences. It can involve analysis of solutions offered by different systems, investigation of causal relationships between them, comparison of the different stages of different systems, and examination of legal evolution. Macro-comparison involves comparing two or more entire legal systems; micro-comparison studies topics or aspects of two or more legal systems.

Comparative law is an academic discipline that acts as an aid to legislation and law reform, a tool of construction (especially in the European Union), a means of understanding legal rules, and contributes to the systematic unification and harmonisation of law. The basic methodology of comparative law is comparing those aspects that fulfil the same functions. Common problems encountered are: linguistic problems, cultural problems, the comparability of legal systems, the theory of a common legal pattern, imposition of one’s own legal conceptions, and omission of extra-legal factors.

Legal systems can be classified in a variety of ways, including by historical background and development, the predominant and characteristic mode of thought, their distinctive institutions, sources of law, and ideology (such as political or economic doctrines and religious beliefs). The main classifications of legal systems are: civil law, common law, customary and religious law and socialist law. Legal transplantation and convergence has mixed elements of different legal systems together.

The world’s legal systems are a product of history and have been strongly shaped by conquest and colonisation. In modern times reasoned and deliberate adoption by one state of aspects of the legal framework of another state. ‘Legal system’ refers to the nature and content of the law generally: the structures and methods of lawmaking, administration and adjudication within a jurisdiction.

A legal system is an operating set of legal institutions, procedures and rules. This conception of legal system is broad, and can refer to international, supranational, national, regional and local legal frameworks. Each law itself could be considered a legal system with a vocabulary, rules and techniques of their own. Some jurisdictions are mixed where elements of more than one legal system are in operation, such the legal systems in Louisiana, Quebec, Scotland, South Africa and Sri Lanka.

Legal traditions (or legal families) are not specific sets of rules but is a general approach to the nature, role and organisation of law central to certain legal systems. This tends to incorporate deeply-rooted attitudes toward the way law should be made, applied, studied, perfected and taught. The three most highly influential legal traditions are civil law, common law and socialist law. Traditional classifications include:

  • 1905 — Esmein classification:
    • Romanistic,
    • Germanic,
    • Anglo-Saxon,
    • Slavic, and
    • Islamic.
  • 1950 — Arminjon/Nolde/Wolef classification:
    • French,
    • German,
    • Scandinavian,
    • English,
    • Russian,
    • Islamic, and
    • Hindu.
  • 1950–1970s — David classification:
    • Romano-Germanic,
    • socialist,
    • common law, and
    • other conceptions (eg, Muslim, Indian, Far-Eastern, African/Madagascan).
  • 1978–1990s — Zweigert and Kötz classification:
    • Romanistic,
    • Germanic,
    • Nordic,
    • Anglo-American,
    • Far-Eastern, and
    • religious.
  • 1998 — Hoecke and Warrington:
    • African,
    • Asian,
    • Islamic, and
    • Western.

Kerameus, ‘Comparative Law and Comparative Lawyers’

This is a summary of: K D Kerameus, ‘Comparative Law and Comparative Lawyers: Opening Remarks’ (2001) 75 Tulane Law Review 865.

K D Kerameus (Professor of Law at the University of Athens, President of the International Academy of Comparative Law) delivered these opening remarks at the 2000 Comparative Law Congress, cosponsored by the International Academy of Comparative Law and the International Association of Legal Science.

Kerameus acknowledges the imprecision of comparison and the need for comparative law to insist upon the substance of law rather than wording or expressions. Kerameus then makes remarks about the relationship between comparative law and other disciplines and between comparative lawyers and other lawyers.

There are two schools of thought regarding comparative law: the first qualifies comparative law ‘as an auxiliary method of engaging in serious legal research’, while the second treats it ‘as a quasi-autonomous branch of law aspiring to equal treatment with other, more tradition and down-to-earth, parts of a legal system’. The first is the prevailing ‘scholarly direction’ which:

treats comparative law as a method applied to domestic problems, to transactions across international boundaries, or, finally, as a purely scientific approach. In this regard, comparative law is often approximated to legal history, legal sociology, or legal philosophy under the assumption that all of these disciplines provide tools for a proper understanding and construction of legal norms.

Unsurprisingly, Kerameus doubts the accuracy of this approximation. While comparative law allows a lawyer to to benefit from additional perspectives (‘enriches his intellectual repertory’), Kerameus argues that there is a ‘fundamental disparity [that] lies in the varying relationship between these mixed branches and a wider nonlegal context.’

By this Kerameus means that legal history, legal sociology and legal philosophy are subsets of history, sociology and philosophy in general, while comparative law has ‘nothing comparable’ as there is no ‘general science of comparison’ (although the German concept of Komparatistik exists, it has loosely defined boundaries and content ‘mainly encompass[ing] a comparative treatment of literature’).

Therefore, as things stand now, comparative law is neither supported by an established discipline of general comparison, nor fertilized by any comparative glimpses produced in other areas of social or human sciences. It stands alone, embodied in law and law only and put in the service of law and law only.

Kerameus refers to Jean Monnet’s (‘the far-sighted father of the European Economic Community — now the European Union’) observation that the Americans he regarded as most effective (ie, most fruitful and creative) were lawyers. Kerameus wonders whether this is true of comparative lawyers against the backdrop of lawyers in general. Rather than answer this (‘it is hard and distasteful to praise one’s own house), Kerameus tries to ‘briefly highlight the advantages and dangers connected to being confronted with comparative law.’

Should tomorrow’s comparative lawyer deal exclusively with comparative law, ‘suppressing … any interest in other branches of domestic or international law’? Kerameus suggests that this would have advantages, including a ‘high level of specialization, concentration of effort, and unencumbered and more efficient channels of communication with lawyers working under different legal systems.’

On the other hand, a focus exclusively on comparative law would make the area an esoteric and inaccessible intellectual activity. ‘Comparative law runs the serious risk of being marginalized unless it tries to be established as a central, frequent, and almost indispensable method of legal research. This risk requires encouraging comparative lawyers to deal also with some other branch of domestic or international law.’

By doing this, the risks for comparative law can be averted and comparative lawyers can improve their performance by keeping them grounded in ‘mainstream legal reasoning while enriching it with the comparative dimension.

A further concern Kerameus raises regards the relationship between comparative law and legal harmonisation or unification:

Today, it has become increasingly clear that we should not overemphasize the use of comparative law to reach ‘legal approximation,’ which is the technical term employed by the Treaty on the European Union. This dimension may now actually be, in several parts of the world, moving toward legal and other integration, yet it is rather fortuitous from a global perspective. Comparative law did exist before any organized plans to reach legal approximation, and, hopefully, it will persist even after any envisaged approximation is accomplished. For approximation does not generate more than what the very term implies, namely, coming close to each other but leaving blank spaces, untouched by rapprochement. In addition we are also witnessing a clear political and legal disintegration through the emergency of new states, particularly in Africa and, recently, Europe. The utilitarian conception of comparative law as a precursor of legal approximation is, of course, welcome, but does not exhaust the multilayered function of our discipline. For the rest, as the unforgettable Professor Schlesinger has succinctly shown, in the history of comparative law, periods of contrastive comparison (with an emphasis on differences) have alternated with periods of integrative comparison (with the main emphasis on similarities).

Kerameus draws attention to the reality that the best equipped legal institutes worldwide are devoted to comparative law, and so are some of the best legal minds.

This is a summary of: Guido Pincione, ‘Critical Thinking and Legal Culture’ (2009) 0 Rationality, Markets and Morals 375 <http://www.rmm-journal.de/downloads/027_pincione.pdf>.

Pincione begins by asking the question:

Do lawyers and other users of legal argument benefit from thinking critically in a legal culture hostile to critical thinking?

He then acknowledges the growth in the discipline of critical thinking, mentioning its inclusion in many undergraduate programs in the Anglosphere and the testing of critical thinking skills as part of university admission, as well as ‘a positive correlation between test scores and various measures of success at graduate school’. The argument his article makes is

that critical-thinking courses provide law students with an additional benefit: they help lawyers thrive even in legal cultures that are hostile to critical thinking to the point of rewarding certain patterns of flawed public reasoning and penalizing certain patterns of sound public reasoning. I will further contend that there is a happy harmony between pedagogical and moral reasons to teach critical thinking at law schools, even if the prevailing legal culture is not informed by it.

In making these arguments, Pincione first turns to the matter of defining critical thinking, which he describes as ‘a method for assessing arguments couched in ordinary, non-formal language.’ While formal disciplines (eg, mathematics and logic) have explicit rules for the construction of sentences and propositions, it is usually difficult to apply similar rules to the assessment of statements and arguments that appear in everyday conversations. Critical thinking ‘involves the kind of judgment that allows us to see the relative weights of a variety of discursive factors in a particular context.’

Pincione observes that the ability to determine deductively valid arguments does not necessary go hand in hand with an ability to assess whether an argument is sound. He illustrates this with the example of ‘a legislator or judge unfamiliar with basic propositions of economics [who] will be prone to advocate laws or judicial interpretations that defeat their stated purposes, even if … capable of devising complex logical proofs of solutions to legal cases.’ Pincione argues that critical thinking goes beyond logic and keeps evaluators ‘alert for the background information needed to devise sound legal arguments.’

This, Pincione says, demonstrates why lawyers and others in the field of law ‘are especially in need of critical thinking.’ While most disciplines (eg, biology) have well-defined subject matter and correspondingly well-defined argumentative techniques, this is not particularly true of the study of law. Law students are exposed to various types of arguments, including especially deductive arguments and empirical reasoning.

Further supporting the argument ‘that lawyers need need generic argumentative skills’ is the reality that legal interpretation is a matter of persistent debate. This includes not just the arguments for drawing certain inferences from legal materials, but also arguments as to the methods of ascertaining meaning from the materials. The broad range of questions and arguments that lawyers and judges encounter indicate that they ‘need especially generic argumentative skills. As we have seen, the discipline of critical thinking is precisely about such skills. Helping law students develop them is therefore especially urgent.’

Unlike ‘other conventional disciplines’, legal issues are generally less self-contained. While many disciplines are related directly to others (eg, biology relies heavily on chemistry, and chemistry on physics), the ‘basic types of reasoning’ employed remain the same: biologists ‘never abandon the territory of empirical methodology. By and large, forays into chemistry or physics do not force biology students to shift to fundamentally different styles of reasoning.’

The moral of all this is that legal education should foster generic argumentative skills … . Being applicable to all subject matters and types of arguments, a good training in critical thinking is then especially appropriate to a law curriculum. This almost completes my case for the claim that lawyers, judges, legal academics, and more generally citizens concerned with legal interpretation and change should excel in critical thinking. I say ‘almost’ because someone may object that critical thinking will not provide legal practitioners with competitive advantages in legal cultures that put a premium on _un_sound legal argument. Many countries do not enjoy the benefits of the rule of law. Arbitrariness, rather than sound argument, is there the source of laws and judicial decisions.

Pincione then discusses the notion that a legal culture may be hostile towards critical thinking, such that unsound arguments have rhetorical advantages: ‘Imagine that those who are widely regarded as legal experts or authorities are unwilling to change their views (at least, their official stated views) if exposed to the fallacies on which such views rest.’ Lawyers, legislators and judges may use methods of argument that allow them to condemn critical thinking’s rules and standards as ‘fallacious, irrelevant, or otherwise flawed.’ In this context, those who use critical thinking are like football players who criticise a referee’s decision but continue playing the game. Pincione points out that this leaves critical thinkers without the ability to break down the prevailing legal culture given they endorse standards of assessing argument that the same legal culture rejects.

However, the existence of a ‘corrupt legal culture’ (that is, one that rewards ‘truth-insensitive reasoning’ and penalises critical thinking) provides fertile ground for criticism, in which it will be ‘profitable to write books and op-ed articles challenging the prevailing culture. … In those denunciatory markets, rewards and penalties are reversed — critical thinkers have competitive advantages there. Social criticism has always and everywhere proved to be a marketable commodity.’

Pincione acknowledges that in a corrupt legal culture the consumers of this material will be relatively small, but interest in the ‘demystifying power of critical thinking’ will likely grow as that culture expands. ‘Corrupt legal cultures give rise … to markets for demystification’, which may lead to the increased employment of lawyers as, for example, journalists, or as academics in proportion to the demands for demystification: that is, critical thinkers with a legal background will enjoy a professional advantage outside the courtroom.

Thus the ‘relativist objection’ fails on the basis that (1) a corrupt legal culture provides critical thinkers with a competitive advantage in demystification markets, and (2) critical thinking limits that indefinite expansion of corrupt legal cultures.

Pincione continues by reassuring his readers that even members of a legal culture dominated by unsound argument can benefit from critical thinking skills. Even where the culture rewards unsound public discourse, critical thinking can be used to determine a ‘winning strategy’ within the legal game; ‘we should expect critical thinkers to excel at discerning the patterns of argument accepted by a corrupt legal culture.’

Next, Pincione considers a further objection to legal education being based on critical thinking:

Another possible objection … takes advantage of the fact that, by definition, critical thinking is instrumental to truth. Now agents may put truth at the service of evil. Unless we have reasons to believe that an agent’s ends or legitimate, we’d better keep instruments of evildoing from him, and truth would be no exception. Certain sorts of non-critical education, religious or otherwise, may fare better than critical thinking at inducing him to behave morally. … In short, the objection here is that a legal education animated by critical thinking might lead students to overrate truth-telling to the detriment of higher, or more urgent, ideals.

Everyone benefits from using critical thinking to determine what their best means to their (sometimes evil) goals are, governments bent on misleading voters to win elections being no exception. … Given the citizen’s time constraints and personal costs of getting political information … the ordinary citizen embraces political views on the grounds of low-cost ‘information’ (including false theories and data). Politicians’ and rent-seekers’ rational response to citizen’s ignorance is, then, to invest heavily in political propaganda and ‘information’ easily available to the ordinary citizen, especially if such ‘information’ fits the (often false) social theories that rationally ignorant citizens tend to embrace … .

As a result, critical thinking can sometimes be harmful to society, especially when rhetoric is the product of thinking critically about how to win elections and gain support for bad policies. Conversely, this disposition towards holding beliefs non-critically may have social benefits: citizens could be induced to support particular beneficial action, even if the premise(s) for doing so were ill-grounded — and Pincione suggests that ‘it would seem that we have a moral duty to do so.’

To be sure, unsound arguments may lead citizens to support good policies. But sound arguments must lead citizens to support good policies if citizens aim at valuable social outcomes. This follows from the definition of ‘sound argument’ [as being one that] carries the truth (validity, acceptability, etc) of its premises to its conclusion. … Can we also say that sound arguments are needed to increase our chances of picking good policies.

The adoption of unsound policies may lead to positive social outcomes, but on close examination it can be seen that critical thinkers are more likely to determine whether public adoption of flawed reasoning is in fact socially beneficial. ‘Benevolent’ policy-makers should therefore engage in sound reasoning to increase the likelihood of adopting rhetorically effective, but perhaps unsound, public arguments.

Additionally, sound arguments may result in decisions that make a person worse off than they could have been otherwise:

Suppose … I am offered a lottery with two possible outcomes: $100 if I choose alternative A and a 50% chance of winning if I choose alternative B. Assuming I am risk neutral, the rational decision … is to choose B. It turns out that I lose. Shall I then say that critical thinking led me in the wrong direction? Surely not. My final ending up with $0 does not change the fact that my decision maximized my expected gains … . The assumption of risk neutrality means precisely that my aim was to maximize my expected gains, and I fulfilled that aim by choosing alternative B whatever the outcome.

While critical thinkers do not need to achieve preferred outcomes, they are more likely to do so: ‘critical thinking is not a success notion, but a procedural one — it applies to our decision-making procedure.’ The result is that critical thinking can in fact be used to achieve moral objectives, even if it leads to the endorsement of unsound arguments (a matter, Pincione suggests, that depends on the importance placed on ‘intellectual integrity’). Critical thinking will aid public-spirited students in achieving goals, and he doubts that critical thinking would make things comparably worse than non-critical or unreflective methods of belief formation.

Pincione argues that the social cost of a corrupt legal culture may become visibile to even rationally ignorant citizens, such that the prevailing legal discourse gives way to a new ‘rhetorical equilibrium.’ This may reveal flaws in the reasoning used and demonstrate to citizens that particular policies are ineffective and incapable of meeting their stated objectives. He illustrates this with the example of Argentina’s 1989 hyperinflation that showed to citizens that long-standing price controls were ineffective. Despite constitutional provisions guaranteeing a right to trade, a right against violation and deprivation of property, and a requirement that expropriation in the public interest must be authorised by law and previously compensated, politically-selected judges and state-employed law professors from the mid-1940s onward

embraced a ‘social’ idea of property under which price control and myriad anti-competitive regulations came to be seen as compatible with the constitutional protection of private property. Governments became in this way constitutionally authorised to yield to electoral incentives to print money to subsidize well-organized groups, to introduce regulations protecting politically connected firms from domestic and foreign competition, and to engender a huge bureaucracy which was largely composed of political clients. The economic and legal doctrines prevailing in universities furnished academic credentials to the public’s vivid beliefs in businesspersons “abusing” their property rights by selling above ‘fair’ prices. Inflation was widely seen as their fault.

Hyperinflation led citizens to question the premise that the price increases were a conspiracy of the millions of firms and retailers. Pincione draws attention to the fact that this was not a change in the ‘rational ignorance effect’ as there was no need to invest in political information to observe the fallaciousness of governmental rhetoric: the unsoundness of arguments was so blatantly obvious. The result was a popular uptake of the more sound arguments advanced by the handful of economists and unpopular politicians that government waste and money printing was responsible for the enormous inflation. Pincione submits that this played an important role in the wide popular support for deregulation and privatisation in Argentina between 1989 and 1995.

While an equilibrium cannot possibly be disrupted endogenously, the statist rhetorical equilibrium prevailing for decades in Argentine politics … faced an exogenous countervailing force — hyperinflation, with its fast transmission of inexpensive information that undermined … the conspiracy theories that had prevailed so far.

Pincione’s observations of the Argentine political economy during the 1990s suggest that even in a corrupt legal culture, a government will likely adopt public policies acceptable to well-informed critical thinkers, and that courts will uphold those policies, so long as the social costs of current laws and judicial decisions become sufficiently visible. This can be seen in the 2001 Argentine financial crisis where the market-friendly economic policies of the 1990s were upset, restoring public support for nationalist and statist political discourse. Public political statements that are sanctioned by critical thinking can be avoided by politicians who think critically when competing for power.

Thus it is advisable for people to think critically so as to select the most persuasive strategies for argument. Critical thinking can, for example, lead a defendant to deliberately use fallacious arguments to persuade the court. ‘Even if … we cannot significantly undermine a corrupt legal culture by showing that it systematically infringes the rules of critical thinking, we can minimize its evils — we can more effectively achieve incremental moral gains — by thinking critically.’

Pincione concludes by stating that critical thinking enables lawyers and judges to achieve worthy goals without making things comparably worse if some use these skills to pursue ‘_un_worthy’ goals. He suggests that a community of critical thinkers is one that follows the rules of sound reasoning, and when sound reasoning guides discussion of legal issues ‘the community has already taken a crucial step toward the rule of law, whatever the specific contents of the legal materials.’