Comparative Law and its Influence on National Legal Systems
Jan M. Smits
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
THE OXFORD HANDBOOK OF COMPARATIVE LAW, Mathias Reimann & Reinhard Zimmermann, eds., pp. 477-512, Oxford, 2006
This contribution explores the use of comparative law by the legislature and the courts in creating, reforming and interpreting national law. This practical use of comparative law by national institutions has increased considerably over the last few decades. Particularly in Europe, comparative reasoning seems to play an ever larger role in drafting statutes and deciding cases. Still, in legal systems that have been mainly national in outlook and character over the last two centuries, many aspects of this recourse to foreign law are far from clear. One of the key questions is the extent to which it is legitimate for a court to refer to foreign law in a purely domestic dispute. While in Europe the drawing of comparative inspiration in such cases is usually met with enthusiasm, this is different in the United States, where it is keenly debated whether such 'comparative reasoning' is allowed, particularly in constitutional cases. In this chapter, the scholarly state of affairs regarding the influence of comparative law in national systems is critically assessed. In so doing, emphasis is put on private law and constitutional law, as these are the two areas where comparative inspiration is discussed most vigorously.
Number of Pages in PDF File: 31
Keywords: Comparative law
JEL Classification: K10Accepted Paper Series
Date posted: February 27, 2007 ; Last revised: June 4, 2009
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