Why is there a need to compare laws? - Chapter 1

Most lawyers are completely trained in the law of their own jurisdiction. When they leave the borders of their own country, they can feel lost. Comparative law aims to address this problem. But where do you have to start? And which method should you apply?

1. Why compare laws?

How to get into comparative-law thinking

Becoming interested in comparative law happens most of the time quite naturally. Assume that a lawyer from country A is dealing with a tricky problem and someone suggests that it can help to look at the neighbouring country B. The lawyer finds a similar rule in country B and starts wondering why it’s slightly different. This is how the lawyer will slide into comparative law, he will start to do research at the background of the domestic and foreign legal rules and might even look at country C.

Purposes of comparative law

Comparative lawyers often use different classifications when they discuss the objectives of comparative law. Three categories can be distinguished:

• knowledge and understanding: knowledge of foreign laws is valuable where these laws are relevant for the domestic legal system. Knowledge of foreign laws can make lawyers of students reflect on their own laws. Next to that, comparative law broadens the understanding of how legal rules work in context.

• use of comparative law at the domestic level: foreign law can be an important aid to the legislator. It can provide models of how well different sets of legal rules work in addressing a particular problem. Also judges can make use of foreign law. In some cases conflict of law rules may require them to do so, but in other cases, judges may wish to take the foreign ideas into account. A potential problem may be that the context of foreign law may be different and

Chapter A The nature and development of international law

The principal actors in international law are nation-states, not individual citizens like in domestic or municipal law. International law is divided into conflict of law, private international law and public international law. The latter is usually termed ‘international law’. Public international law covers relations between states in all their forms, and regulates the operations of the many international institutions. It may be universal or general, binding upon all states, or regional, binding upon a select group of states.

International law has no legislature. There is no system of courts operating outside the situation when both parties agree and recognize the concerned Court. International law is constituted in a very different manner than domestic law. Also, there is no unified system of sanctions in international law, but there are circumstances in which the use of force is regarded as justified and legal. Within the United Nations, the Security Council can impose sanctions upon the determination of a threat to the peace, a breach of the peace or an act of aggression. Such sanctions may be economic or military. Another justification of the use of force is in the case of self-defense, but it is bound to rules provided by international law. It is important to realize that states do feel the need to obey the rules of international law, because if they do not act accordingly, the system of international law ceases to exist.

The international system

The international system has a horizontal structure; all states are considered equal. In municipal law, the law is above individuals, but in international law the law only exists between the states. Also, in municipal law, the individual has no influence on the creation of law. In international law, states create it themselves, as international law consists mostly of agreements and treaties developed and signed by states. An important element for states in order to obey international law is the principle of reciprocity. States often do not pursue one particular course of action which might bring them short-term gains, because it could