Comparative Law

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The comparative jurisprudence or comparative law ( comparative law ) is part of the Trade Law , which deals with the comparison of the different jurisdictions involved.

The oldest surviving comparative law study took place in ancient Greece: In his Nomoi , Plato compared and assessed the law of the Greek poleis .

Häberle propagates comparative law as the fifth alongside the four classic methods of interpretation . However, it does not belong to the established canon .

Delimitation and classification

Comparative law is to be distinguished from foreign law in terms of the subject of investigation and the interest in knowledge. The international legal studies determines foreign law and is a prerequisite for a legal comparison, while the legal comparison represents the comparative comparison of national legal systems and an analysis of the differences and similarities of the legal systems.

Comparative law must also be distinguished from other areas of law that also deal with foreign law. Such areas are international private law , international law , legal history , legal ethnology and legal sociology .

The legal pluralism examines the juxtaposition of positive law and other accepted as binding rules of conduct in a society.

Areas

It is undisputed that comparative law includes comparison in legal science related to the applicable law. This can be differentiated according to partial legal areas:

  • Comparative public law
  • Comparative criminal law
  • Comparative private law

Some authors define comparative law more broadly and include all legal comparisons by this. Then the comparative law also included the comparisons in other legal sub-disciplines that do not relate to the applicable law. Examples would be comparative legal history, legal sociology, etc. But convinced to classify these as subcases of the respective subdiscipline due to their interest in knowledge.

Levels

A distinction can be made between comparisons on a macro and a micro level.

Comparison at the macro level

Comparative law at the macro level or legal system classifies the various national legal systems of the world according to legal systems ; it examines the commonalities and stylistic elements of legal systems on the basis of legal historical developments and contexts. The subject of macro-comparison is the general methods of dealing with the legal matter, the dispute settlement and decision-making procedures and the working methods, tasks and functions of persons working in legal life (such as judges, lawyers, ministerial lawyers, appraisers, experts, legal teachers, and so on).

Comparison at the micro level

A functional comparative law is carried out at the micro level ; questions about the reasons for a certain design of the law and its functions are also taken into account. The subject of the micro-comparison is specific individual problems and their solutions, the individual legal institutions and the rules for resolving conflicts of interest in the various legal systems.

The comparison variables are at the center of the comparison. These are divided into the dependent variable to be explained (right as explanandum ) and the explanatory independent variables (right as explanans ).

If, for example, the data protection solutions of different countries were examined , the different data protection regulations would be the dependent variable, while the different constitutional requirements could be used as independent variables .

literature

Encyclopedias

  • Konrad Zweigert , Ulrich Drobnig (Eds.): International Encyclopedia of Comparative Law . 17 volumes. Mohr Siebeck, Tübingen u. a., ISBN 3-16-644617-6 (I: National Reports, II: The Legal Systems of the World - Their Comparison and Unification, III: Private International Law, IV: Persons and Family, V: Succession, VI: Property and Trust, VII – IX: Contracts, X: Restitution - Unjust Enrichment and Negotiorum Gestio, XI: Torts, XII: Law of Transport, XIII: Business and Private Organizations, XIV: Copyright, XV: Labor Law, XVI: Civil Procedure, XVII: State and Economy).
  • Max Rheinstein (Ed.): Introduction to Comparative Law . CH Beck, Munich 1974.
  • Franz Schlegelberger (Hrsg.): Comparative comparative law dictionary for civil and commercial law at home and abroad . 7 volumes, 1929–1939. Vahlen, Berlin.
  • JM Smits (Ed.): Elgar encyclopedia of comparative law . Edward Elgar Publishing, 2006, ISBN 1-84542-013-6 .

Manual

  • The Oxford Handbook of Comparative Law (= Oxford Handbooks , Taschenbuch), ed. by Mathias Reimann and Reinhard Zimmermann, Oxford University Press, 2008, ISBN 978-0-19-953545-3 .

Anthology

  • Peter Häberle : Comparative law in the force field of the constitutional state: methods and content, small states and developing countries. Duncker & Humblot, Berlin 1992, ISBN 3-428-07467-X .

Textbooks and monographs

Magazines

Individual evidence

  1. ↑ Peter Häberle: The validity of fundamental rights and the interpretation of fundamental rights in the constitutional state - at the same time as comparative law as the “fifth” method of interpretation. In: JuristenZeitung . (JZ) 1989, p. 913 ff .; confirmed in dems .: Interactions between German and foreign constitutions. In: Detlef Merten , Hans-Jürgen Papier (ed.): Handbook of fundamental rights in Germany and Europe. Volume I: Developments and Basics. Heidelberg 2003, § 7 Rn. 26th
  2. ↑ Uwe Kischel: Comparative Law . CH Beck, Munich 2015, ISBN 978-3-406-67585-0 .
  3. ^ Mathias Siems: The Power of Comparative Law: What Types of Units Can Comparative Law Compare? In: The American Journal of Comparative Law . tape 67 , no. 4 , December 31, 2019, ISSN  0002-919X , p. 861-888 , doi : 10.1093 / ajcl / avz030 ( oup.com [accessed April 9, 2020]).