Methods and Functions of Comparative Law

• Author: Blerton Sinani - Klodi Shanto
• Position: Teaching Assistant at the Department of the Public Law, PhD Candidate, Faculty of Law of the South East European University - Lecturer at the Department of the Public Law, Faculty of Law of the Academia of the Business University
• Pages: 25-40

JURIDICA

25

Methods and Functions

of Comparative Law

Blerton SINANI

1

, Klodi SHANTO

2

Abstract: The purpose of this research paper is “to explain the topic” whose reviews are made.

Hence, reviews of this research article refer to the legal content of the thematic ar ea of comparative

law, first and foremost, to methods and functions of comparat ive law. The elaboration of methods and

functions of comparative law, as a s tarting point, has the historical origins and development of

comparative law. However, the approaches did not s top to methods and functions of comparative law,

but are extended and focused on the principle of functionality, a lso in macro-comparison and micro-

comparison c oncept as a central juridical category of comparative law as an autonomous scientific

juridical discipline. Otherwise, this article is of particular interest, overall and ab ove all, to the

development of theoretic, legal-comparative reasoning, as well as the professional applicative

reasoning.

Keywords: comparative law methods; comparative law functions; micro-comparison; macro-

comparison

1. General Considerations

Seen objectively, comparative law

3

is not a recent branch of law, but it represents

in itself a legal scientific discipline. This attitude is supported and explained

scientifically by a very significant and powerful fact that the law system does not

have in itself legal norms, and in consequence does not have a normative-legal

regulation object and no societal relationship or issues regulation (Gutteridge,

1946, pp. 1-2). Hence, comparative law is, in a more general sense “the critical

1

Teac hing Assistant at the Department of the Public Law, PhD Candidate, Faculty of Law of the

South East European University; Str. Ilindenska n. 335, Tetovo, Republic of Macedonia. Tel.: 00389

44 356 142; Fax: 00389 44 356 000. Corresponding author: blerton. sinani@seeu. edu. mk.

2

Lecturer at the Department of the Public Law, Faculty of Law of the Academia of the Business

University; Str. "Vangjel Noti", 1000 Tirana, Albania; Phone: 00355 672009495. E-mail:

klodishanto29@yahoo. com

3

"Comparative law" terminology is related to the following ter ms: Droit comparé (fr.), Comparative

law (eng), Diritto Comparato (it.), Derecho comparado (spa.), E drejta e krahasuar (alb.)

Sporedbeno pravo (mac.), Poredbeno pravo (cro.) It is interesting to note that only in Ger man

language is named Rechtsvergleichung - Legal Comparison and not Comparative Law.

AUDJ, vol. 9, no. 2/2013, pp. 25-40

JURIDICA

26

comparison of the different legal systems of the world”. Reportedly, comparative

law is, in the general sense of it, “critical comparison of the different legal systems

of the countries of the world” because “critical-legal comparison” is a fundamental

concept of comparative law (Zweigert & Kottz, 1998, p. 2). Regarding this, we

express the authorial attitude that “critical-legal comparison” may be qualified as a

versatile and comprehensive overview and assessment of an attentive (careful)

comparative-lawyers, during the comparison of legal institutions or legal systems

of at least two or more the concrete states, coming to consistent scientific

conclusions regarding “the common essential features” on one side, and “special

distinguishing features” on the other. In comparative-juridical doctrine several

authors made different efforts to explain the comparative law notion. However, in

comparative-juridical doctrine predominates the concept that the expression

“comparative law” in comparative-juridical literature, is commonly used in two

senses: first, as a special juridical scientific discipline and, secondly, as a specific

discipline of academic learning.

First, as a specific juridical scientific discipline, the comparative law includes the

entirety of scientific knowledge that refers to fundamental notions of comparative

law, as well as the comparative-legal method and the most major legal systems in

the contemporary world.

1

Second, as a specific academic discipline, the comparative law includes the entirety

of thematic units, taught to law students during their university studies.

2. Origins and Historical Development of Comparative Law

Seen historically roots of comparative law can be traced back to ancient Greece. It

is in Greece, owing to the characteristic interest of Greek thinkers in political

structure, that we find the earliest comparative researchers. In other words, in the

ancient Greek world, many scholars were interested in foreign laws. Such is the

attitude of Lycurgus in Sparta and Solon’s in Athens, who made “excursions”,

(voyages) to the Mediterranean states to know the legislation of these countries

closely before they disclose any laws in their own. In his Laws, Plato makes a

comparison of the laws of the Greek city-states; he not only describes them, but

also tests them against the ideal constitution he constructs out of them. Prior to

writing his Politics, Aristotle also examined the constitutions of no less than 153

city-states, though only the portion devoted to Athens and Sparta has come down to

us. This work can be described as philosophical speculation on the basis of

comparative law (Aristotel, 1948). Meanwhile, the Roman Empire did not provide

1

Most major systems of law include national legal systems of many c ountries t hat compose a

concrete legal family. Major legal system can be only one legal system, which has exceeded his

origins and that has exercised a great influence over the legal systems of the whole world - quoted by

(Popoviç, 2008, p. 51).