COMPARATIVE LAW full

COMPARATIVE LAW
Lecturers. Do Thi Anh Hong
Comparative Law Institute
Hanoi Law University
Sep. 2018


COURSE DISCRIPTION IN BRIEF
On the Comparative Law (CL)
1. Name of this legal science branch:
Among different countries: not unanimous (e.g.: in French, droit
comparé = compared law; in German, Rechtsvergleichung =
comparision of law)
Within a country (US): not unanimous either
E.g.: Legal scholars: Comparative law; Comparative legal traditions…;
Legal linguists: Comparative Jurisprudence
 Which name should be used? COMPARATIVE LAW
I.


2. The terms & concepts used in CL
 Terms & Concepts: vary from country to country  Eg.:

+ Different Terms: “legislature” (Eg.: US v. UK)
+ Different Concept: “high court” (Eg.: Australia v. UK)
Legal Jargon: might differ from those used & understood in even
other law subjects:
Eg:
- Legal system;
- Civil Law;
- Common Law.

3. CL as a branch of legal science
- In XIX, beginning of CL was taken up with discussions attempting:

+ to define its aims, nature,
+ to establish its place among the sciences,
+ to characterize its methods, possible applications & general
usefulness
- CL has developed enormously since beginning of XX 1st
International Congress for CL held (in Paris, 1900)
 Views expressed here led to productive research in CL
 Till 1970s, most comparatists were inclined to doubt the existence of
the science of CL (merely a variety of study methods of
jurisprudence)


II. ON THE COMPARATIVE LAW SUBJECT
1. CL as an academic discipline in the LLB

curriculum
- In a number of countries around the world:
+ 1st half of the XX, CL still occupied a modest
position in academic curricula (France, Germany, UK,
US..):  CL: a selective subject
+ Nowadays (international integration process…)
 CL: mandatory subject
- In Vietnam: early 21st century (27th intake, HLU)

2. CL Course Syllabus
Two main parts:
General Consideration Part: Fundamentals of CL and CL subject
(concept/features/objects/method..)
Specific Part: Fundamentals of Legal Families / Legal Systems
Note: Disputed viewpoints on the CL subject’s specific part:  can be
classified into 2 groups of subject:
Group 1: Structural Research Subj.: relationship b/t legal families, legal
systems; b/t internal components of legal systems
Group 2: Law Branch Research Subj.: comparing law branches of
different countries (e.g.: ….)


3. CL Course’s overall
(p4-5 Course Outline)

objectives

- Cognition (deep discipline knowledge; legal, cultural, historical,

geographical… knowledges)

- Skills (comparing, collecting inf., analyzing, synthesizing…)
- Attitude (self-improving of perception of foreign legal systems/law;

more objective in assessment of domestic law…)
- Other objectives: (p.5)


4. CL subject’s achievement &

future
- In the past: CL  a res. method used in legal

science

- Nowadays: CL  a branch of legal science, a

law discipline in LLB curriculum

- Future: increasingly important (a trend: CL

subject & many specialized CL subjects in law
school curricula)


5. Learning Resources
- See Course Outline, 2017 (p.12-15);
- Note: + Poor in VN but Rich in foreign languages

materials
+ Mandatory & Additional materials
1. Micheal Bogdan, “Comparative Law”, Kluwer / Norstedts

Juridik / Tano, 1994; (*)
2. M.A. Glendon, M.W. Gordon, P.G. Carozza, “Comparative
Legal Traditions in a Nutshell”, 2nd Ed, West Group,
1999; (*)
3. K. Zweigert & H. Kotz, “Introduction to Comparative
Law”, 3rd Ed, Oxford University Press, 1998;
4. R. David & J.C. Brierley, “Major Legal System in the

World Today”, 3rd Ed, 1985 (reprinted 1996).
5. P. de. Cruz, ”Comparative Law in a Changing World”,
Cavendish Publishing Ltd, 1999.


III. COLLECTING INFORMATION
FOR SELF-STUDY PURPOSE
- From books, journal articles: Vietnamese vs. Foreign languages
- From Website:

+ westlaw.com; lexis.com; heinonline.org
+ … gov…; …edu…; …aca…


COURSE ASSESSMENT
METHODS
Two assignments (Note:

language);
Final Exam: true/false questions
with explanation


CHAPTER I: COMPARATIVE LAW IN BRIEF
I. General Considerations (M. Bogdan: pp. 1726; Glendon..: pp. 1-15)
II. Historical Development of CL (Zweigert, pp.
48-62)
III. Theoretical and Empirical Significance of
CL (M. Bogdan: p.25-38)
IV. Grouping of Legal Systems (M. Bogdan: p.

82-91)
V. Comparative Law as an Academic Discipline
 Lecturing: Part I; Self-study: Parts: II-V


I. General considerations

1. What is Comparative Law (CL)?
a.

The term “CL”: no unique term used:
+ amongst different countries
+ in a country


b. Definition of CL
-

No single definition
3 definitions by 4 authors (VN, German, Swedish)

VN author: CL: “a method of scrutinizing, studying &
approaching law on the basis of internationally legal exchange”
 Good aspects: condensed; linguistic elegance
 Not so good aspects:
+ CL = method  >< newly emerging international tendency
+ Research object: too general/broad
(1)

(2) German authors: Zweigert & Kotz:
CL: “An intellectual activity with law as its
object & comparison as its process”; “the
comparison of different legal system of the
world” (p.2)
 Good aspects: condensed; linguistic elegance
 Not so good aspects:
+ research object: too general/vague
+ research method: too poor
-


(3) Swedish author: Michael Bogdan
CL encompasses:
“the comparing of different legal system with purpose of
ascertaining their similarities & differences;
working with the similarities & differences that have been
ascertained, for instance explaining their origin, evaluating of the
solutions utilized in the different legal systems, grouping of legal
systems into families of law, or searching for the common core of
the legal system; &
the treatment of the methodological problems which arise in
connection with these tasks, including methodological problems
connected to the study of foreign law.” (p.18)
 Good…: (full image of CL; concrete objects, methods, aims)
 Not so good...: (too long..)
Note: M. Bogdan:
- Comparing 2 law branches/institutes/rules of 2 countries  CL =
comparative method
- Comparing abstract legal issues  CL = independent legal science

c. Features of CL
(1) Not a law branch, nor a system of legal rules
)2) Used to compare different legal systems
Note: compare between legal acts, rules of the same legal
system, enacted by different ruling powers, in different historical
stages  not CL
(3) Study of CL ≠ study of foreign law
(4) CL: branch of legal science, not simply a research method
(5) CL’s research scope seems unlimited:
+ Cannot be treated in an exhaustive manner
+ Can hardly imagine all conceivable bilateral & multilateral
comparisons b/t all combination of existing legal systems
 NOTE: Should limit research scope to particular legal
questions/countries


2. CL’s research objects

a. What does CL study? Relation b/t legal systems (LS), their
components; relation b/t groups of LS & reasons for their
similarities & differences  concepts to be clarified:
- LS: (1) systematic collection of legal rules/principles (≠ morality,
politics, physics..)
(2) independent system of government (recognized..)
(3) legal institutions operating within a geographic area
(4) an operating set of legal institutions,
procedures & rules
- Legal family (LF): group of LSs having similarities b/c of having

same deeply historical root; & same legal roles in society and in
human ideology LF ≠ LS  E.g.: LFs
- Legal tradition (LT): set of historical conditioned attitudes to the
role of law in a particular society, its characteristic mode of legal
thought & its legal sources & basic ideology
Note: How to use terms: LS, LF, LT.


b. CL’s research scope
(1) National LS: relation b/t 2/more national LSs:

+ legal rules, institutions, legal thinking mode…;
+ mechanism of law application;
+ legal profession;
+ legal education.
LF: relation b/t 2/more LFs  limit scope of research
(3) International law :
(2)

+ when comparing b/t national & international law
+ a regular research subject in international integration
process


c. Levels of comparison:
Macro & Micro comparison
- What are they?

+ Macro C. (large Re. object): b/t LSs; b/t LFs  E.g…
Note: bilateral & multilateral comparison

# C/p b/t 2 legal systems  Bilateral (Eg)
# C/p b/t more than 2 legal systems Multilateral (Eg)
+ Micro C. (small Re. object): b/t legal rules; legal institutes  E.g.?
- Relation b/t the 2 levels of comparison


3. CL’s research methods
a. Methods
Which methods?
Differentiate b/t comparative method (CMe) & CL:
CL
+ Point out similarities
& differences
+ Analyze, explain, comment
+ Concrete conclusion

CMe
+ Point out similarities
& differences


b. Steps in comparison of law
- How many approaches to accomplish a CL

research project?
- Six steps:
+ Pose a question/hypothesis
+ Choice of law
+ Collecting reference materials
+ Building up system of concepts

+ Writing a report on research object
+ Evaluation of research findings


(1) Posing question/hypothesis
Result from:
(a) Dissatisfaction (eg.)  foreign law must be different..
(b) Disinterested study (eg.)  how does foreign law look like..
 Enter first step
-


(2) Choice of laws to compare
- What should be compared?

+ not unique
+ not incomparable
+ same function
- Which country’s law to be chosen?
+ same level of development
+ more developed
+ similar cultural, historical development…?


(3) Collecting reference materials
- Why collect?
- How to collect?
+ General vs. Specific research;
+ Ancient vs. Modern legal regime