Comparative Jurisprudence

Comparative jurisprudence, in the sense in which it is distinguishable from historical jurisprudence, can scarcely be said as yet to have a separate existence. Since Leibnitz projected his youthful scheme for tabulating the laws of all the countries of the world, and exhibiting their correspondence and differences by parallel columns, little or nothing has been done for the comparison of laws except in connexion with history. One special line of study does indeed use what may be called a comparative method. The "conflict of laws" involves at least a contrast of a vast number of importance points in which the laws of different nations disagree. The object of the study of this conflict is of the practical kind which comparative jurisprudence as here conceived is meant to subserve. It is to develop some rationale of decisions where two or more discordant rules claim exclusive application to the case. There are circumstances which seem to show that the mere comparison of laws with no other object but that of discovering in how many ways the same thing can be done, and which way is the best, will enter more and more into the higher legal studies. For one thing, the vast increase which has taken place in the means of communication between nations has made a knowledge of each other’s laws a matter of imperative necessity, and has broken down, at least as between the most advanced nations, that barrier of insularity which formerly shut out all suggestions of improvement from abroad. We have already emphasized the marked extent to which this exclusiveness has characterized English law, and we cannot but regard it as typical of a new temper that in preparing for the solution of important problems of legislation, the British Government not unfrequently collected from its agents abroad information as to the solution of the same problems in other countries. An important influence always tending in this direction, and greatly strengthened by the changes to which we have alluded, is that of commerce, and particularly of British commerce. England’s business relations are coextensive with the world; it is a necessity of her business that she should know what view is taken of contracts and the relations arising out of them by the laws of different states. And it is becoming a necessity of the commercial class in all countries that, on fundamental points at least, the principles of law should be everywhere the same. Strenuous efforts, for instance, are now being made for the establishment of a uniform law of negotiable instruments in all countries, and with some prospect of success. (E. R.)





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The above article was written by Edmund Robertson, K.C., M.A., LL.D., Barrister; late Fellow of Corpus Christi College, Oxford; Reader on Law to the Council of Legal Education; M.P. for Dundee from 1885; Civil Lord of the Admiralty, 1892-95; author of American Home Rule.