The Method and Role of Comparative Law

Abstract

In this article, I argue that we must reassess the role and methodology of comparative law so that we can come up with a sound methodological framework to understand better the role of law in different countries as a way of promoting insight and knowledge and, hopefully, a measure of common understanding. My proposal for comparative methodology consists of these steps: Rule 1 consists of acquiring the skills of a comparativist. That skill calls for immersion in the culture under review, linguistic knowledge, and the application of neutral, objective evaluative skills. In Rule 2 we will apply comparative skill to evaluate the external law, consisting of the law as written or stated. Here we must do a close assessment of the similarities and differences of the law of different countries under review. Rule 3 will involve applying the same methodology to the internal law, consisting of the law that lies beneath external law yet has important influences on the formation of law. These can be phenomena like religion, politics, custom, geography or climate. Finally, Rule 4 will involve assembling the results of comparative investigation in order to determine what we can learn from a foreign legal system and how that insight might reflect on our own legal system. I then discuss the mission of comparative law. Here we need to employ comparative law methodology to help shed insight into nonwestern countries, such as emerging powers like China and India, and help solve pressing public policy questions, like antitrust, informational privacy or consumer protection.