Comparative law and its clients

Abstract

Scholarly writings on comparative law to a large extent deal with general aspects of the discipline, in particular with its relation to other methods of research and analysis, with the proper method of comparative enquiries, and with the objectives and purposes of comparative law. Over the years, the so-called functional approach to comparison, widely accepted in the past, has attracted much criticism from authors stressing the embeddedness of legal rules and institutions in a given legal system, and its intertwining with the characteristics of a specific society, economy, culture, and political system. This Article advocates a pluralism of methods and selection of the method of enquiry in accordance with the demand of those who intend to make use of comparative knowledge, i.e., the clients of comparative law. With a view to this goal, it sheds light upon the development of the discipline over several stages, highlighting various objectives pursued by the leading scholars: the contribution of comparative enquiries to the knowledge about a foreign nation; the aspiration towards the discovery of the common core of legal systems; the search for a model guiding the development of domestic law; the preparation of uniform law instruments; and the efforts to maintain or restore uniformity in the application of such instruments. The Paper then turns to the demand side of comparative law: the various clients of comparative research who, by their specific demand, shape the proper method of a comparative enquiry. The author identifies-alongside scholars from various disciplines-several groups of customers: legal practitioners and the courts, national legislatures, unification agencies, and a broad array of public and private institutions in the international arena. For each group of customers a specific type of demand for comparative law can be ascertained, which often depends on additional factors such as the legislative procedure laid down in the national constitution. It turns out that many of these customers are primarily interested in the black letter law of foreign countries as applied in legal practice. In some instances, however, the demand extends to the social, economic, political, and cultural environment of the law.