Comparative Foreign Law Study
Added on - 09 Oct 2019
Comparative Foreign LawPeter Lamarque once said: “It would be a mistake to give up the truth seeking aspirationof interpretation altogether”. So, by the above statement, there can be a number ofinterpretations that could be derived. Most appropriately, what could be made out of it is -there must be enough space in any literary text so that a reasoned support can be providedto its viability. There are interpretative truths that are of certain kind and characterizationsand they are always associated with the kind of interpretive comments they seem tocontain.Lamarque created a literature of cognitivism (Gaut, Lamarque & Olsen, 1996) in which hesaid to read philosophy is to read for truth. So, as interpreters of literatures, manyphilosophers chose to do many things and one of the things are that they come up with theworks which are associated with pre-reflection. There are two distinctive claims here – thework of literary fiction has a certain content and the work takes the content ahead as true.So, Lamarque believed that literature is an intentional and evaluative concept. Hesuggested that speech-act aspect makes the literature look like out of its context of originwhereas, utterance aspect focus on the origin of the literary works.He said that it is pretty easy to find a large variety of meanings in any language in whichthe text is written. To some extent he has underestimated the significance of suggestionand implication in a literature. The question that arises here is could there be incompatibleinterpretations? Well, it doesn’t seem plausible to have two formally incompatibleinterpretations with equal merit and satisfying authorial intentions without having anyinclinations towards one way or the other. If there are incompatible interpretations, thenthey are at odds and such properties are always relative to interpretive perspectives.
Lemarque also proposed that certain works of poetry, drama and prose are associated withthe certain form of literature because of the appreciation they invite and reward (Nash,1994). These appreciations can be in the form of multiple interpretations including the onethat deviates from what author intends to say. It, however, does not concern with the truthof the statements being made, implications that the work seems to suggest or theknowledge that anyone acquires by reading the text.International and Comparative LawComparative law is a modern phenomenon, it was first used in the 19thcentury when itwas realized that the comparison of different legal institutions needed a much coherentand systematic approach for enhancing the understanding of foreign cultures and to makelegal progress (Dictionary Of International & Comparative Law, 1993). There were amyriad comparative techniques utilized by the scholars to gain the advantage.If we take a detour and go back to the 6thcentury, a Greek lawmaker Solon was entrusted atask to compile laws of Athens by gathering different laws from different cities. In asimilar manner, in fifth century BCE, Romans were also reported to have used the statutesof Greece before framing the famous Laws of Twelve Tables. Aristotle also consulted theconstitutions of as many as 158 city-states in order to frame a model constitution.Therefore, even from time immemorial, the philosophers who wanted to set up a just legalsystem took inspiration and examples from abroad. However, there were a lot of obstaclesthat came on the way of real expansion of comparative law such as localized thinking ofsocial groups, contempt for the foreigners and strong beliefs on the inherited legal rules.Though a lot of practices that were included in the Roman law were originated in theimperial provinces and the Roman legal studies did not take proactive steps towards the
formation of comparative law. So, through all these years, the Roman scholars providedcertain areas as well as modified to certain extent by canon law.The people who belonged to the Glossator thinking were only confined to the task ofenunciating the meaning of the Roman codes of law, while the post glossators madeproper arrangements in order to adapt those laws to prevailing social realities. There wasno interest for the customary laws that were taken from here and there by the scholars whoworked hard to provide the society a framework of ideal justice for the mankind.Therefore, the local laws were believed to be doomed eventually.Role of Judges and LawyersThe judges and lawyers did not have the attribute of contempt as they had to deliverjustice by applying customary law (Tasioulas, 2013). As their works comprised ofdifferent uncertainty in order to ascertain the content of a custom. So, to carry out this taskof filling the gaps, the judges and lawyers had to decide which custom was more just thananother and to what extent it could go. There were two methods that were utilized at thistime – the removal of conflicting local customs and acceptance and rejection of some ofthe important elements of Roman law.As far as the first step was concerned, the comparative elements in their work wereprovided behind the scenes and therefore eventually the results of local or municipal lawswere known. Regarding the second step, to the contrary of the first one, certainpublications showed the comparison in full view. The comparative law, notwithstandingits occasional use, was not made a separate branch of elementary technique of legalscience until the last century. It was completely unthinkable then that the justice was
needed to be taught by a direct reference to a whole list of customary rules that were quiteincomplete.Historical Perspectives of Comparative LawWith the beginning of 19thcentury, the framing of the law put an end to the existingambiguity in different countries. These ambiguities were the laws related to ideal systemthat were taught in Universities and the laws that were applicable for the everyday life(Chinkin, 1989). The framing of these everyday laws provided them the status of nationallaws and this systematic manner became the cornerstone of the entire legal system. Thelaws based on these local customs that were in consonant with natural justice and it wasthe fundamental cause of the appearance and formation of comparative law. This changethat happened in Europe was clearly evident in the early 19thcentury.Germany and France were the countries where legal periodicals were started to enhance asystematic study of foreign law. To this effect, in 1831, a comparative legislation wasfounded in the college of College de France and subsequently a chair of comparativecriminal law in the University of Paris. Similar legal institutions were set up in Englandand other parts of Europe. In the last century itself, an important meeting of FirstInternational Congress of Comparative law in Paris was held in Paris. Legal experts fromacross Europe made important interventions by delivering different legal papers anddiscussing their nature, aims, objectives and common interest of comparative law. Aprofound emphasis was put on its role in the preparation of a common for the civilizedworld.