Comparative Law
Comparative law is a research method or technique that allows its use in practically all areas of law, either to identify foreign legislation or to reach a solution to national problems.
Comparative law correlation with other subjects
It should be considered that comparative law can act to achieve greater enrichment in the subjects mentioned below: private international law, public international law, history of law, ethnology of law, and legal sociology.
- Comparative law and private international law
While private international law determines which is the most convenient rule to apply in comparative law cases of foreigners, it serves as an instrument to explore the rule to be applied in different legal systems. Both subjects allow for a better understanding and application of concepts, norms, or laws. For example, in an international dispute between two countries, private international law intervenes to determine the jurisdiction and the rules to be applied; while, comparative law provides the tools that allow exploring and knowing the areas and institutions involved to define the laws to be applied.
- Comparative law and public international law
Comparative law helps to understand the international rules and principles that each nation has adopted, but it also promotes the development and application of public international law. For example, the general principles of international law, stipulated in the first clause of article 38 of the Statute of the International Court of Justice, establish that international judges can apply the most appropriate international principles to solve international disputes. In the interpretation of international treaties, comparative law serves as a tool to search for a criterion or formula that is adequate for the understanding of certain words or phrases.
- Comparative law and history of law
In legal history, the comparative method is used to understand the origin of certain legal institutions. Legal historians cannot carry out an appropriate study of a certain institution if an analysis of its origin has not been previously carried out. Only if the birth and history of an institution are studied are there greater possibilities of understanding the current functioning of an institution. In this regard, Maine mentions the relationship between the comparative method and historical method:
I think I can venture to say that the comparative method has been profitable in providing wonderful results, but it does not differ in some of the uses of the historical method. If we take into account a certain number of contemporary events, ideas, and customs we can deduce that the past form of these events, ideas, and customs not only come from historical records but from examples that have not yet died in the world and that may still be found.
- Comparative law and ethnology of law
The economic and social changes of a nation have been able to reveal societies that, perhaps incorrectly, have been classified as ‘primitive’. In other words, migration is the result of social, political, economic, and cultural changes that have managed to displace entire communities to other societies, causing them to adopt new practices and eliminate their original constitution. The task of comparative law and ethnology of law begins with studying these communities in an international context. For example, Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries calls for strengthening the identity, languages, and beliefs of tribal or indigenous institutions within each State.
- Comparative law and legal sociology
If we consider the law as the formalization of social needs by a legislative body, the factors that compose it must be considered, such as the economy, culture, society or religion of a community. Comparative law and legal sociology suggest how you can contribute to building a better community by comparing different societies. Thus, for example, globalization has succeeded in bringing together internationally diversified societies and creating common patterns in a community.
