In thislecture diary I will not go deep inside the different methods used today to compare the law. I chose to focus on the mains point of the two different perceptions of the comparative law nowadays present on the field.
Hein Kötz has been the most influential comparatist in the field of comparative law this last 40 years he published with the cooperation of the famous lawyer Konrad Zweigert in 1969“introduction to comparative law” which has become the leading textbook in the field. In this book he introduced the method which he considered to be the best to compare the law. According to Kötz one of the aims of the comparative law is to determine what system is the best. The lawyer “has to decide which solution of the possible solution is most suitable and just”. He wants an harmonizedlegislation in order to avoid conflicts and make the exchanges between the nations simpler.
I. The field of comparative law
First, Kötz delaminate the field of the comparative law: According to him comparatist shall focus on “those parts of private law which are relatively apolitical”. Pierre Legrand found this too limited. He thinks and I agree with him that everything is comparable. Public lawshould not be excluded from the comparison. Every country has its own constitution and administrative system which are interesting to compare. Then we cannot separate the politic from the law. As a matter of fact as long as the law is made by the government it is a question of politics. One of the most obvious examples is these rules about religion in France and in the USA. One forbids wearing theBurkhart at school whereas the other allows it.
II. The methods used Nowadays
Kôtz developed in his book two main ideas: the objectivity and the functionalism.
A : objectivité
Kötz developed the idea that the law shall be compare in an objective way. First the comparatist “must liberate themselves from their cultural context”. Then the law shall be cut from its conceptual context andfinally the separate records must be objective.
Pierre Legrand disagrees with him and thinks it is “impossible and not desirable” to be objective. First you cannot get rid of your cultural education. According to him, even if you try to be impartial, the way you think is a consequence of your education. Secondly he argues that everyday the comparatist makes”micro decisions”. He chooses the book hewill read and his final report will depends on this micro decision. Then the result of the comparison depends on your choice and is no more objective.
I mostly agree with Mr. Legrand. In my opinion your education conditions the way you interpret and see the rules. You cannot prevent yourself to be influenced by your cultural background and the way you have been educated. Besides, I think thattaking a law outside his context has no sense. If you take for example the notion of “cause” in the French system it does not mean anything without the definition and its application in the country. You are not able to make a good comparison if you do not understand the full meaning of the word.
But in another hand I think that a comparatist should be as objective as possible. He should try...